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.

Craig on English Adrministrative Law History

Paul P. Craig, University of Oxford Faculty of Law, is publishing English Administrative Law History: Perception and Reality in Judicial Review in the Common Law World: Origins and Adaptations (S. Jhaveri and M. Ramsden, eds., forthcoming). Here is the abstract.

The history of English administrative law remains to be written. It is a task of considerable magnitude, given that it requires understanding of case law, regulatory legislation, government and politics spanning a period of circa 450 years. The task is more especially daunting given the range of different areas that were subject to governmental regulation broadly construed. It is, therefore, unsurprising that the intellectual task has not been fulfilled. This has not, however, translated into a dearth of opinion as to English administrative law history. To the contrary, as will be seen below, there are views in this regard, and some are strongly held. There is, as in any intellectual endeavour, the danger of an inverse relationship between the strength of a person’s conviction and the depth of their knowledge. This chapter is not a history of English administrative law, since that would, as noted, require a book in itself. It does, however, offer a lens through which to view two different conceptions of that history, which are termed perception and reality. These terms are admittedly tendentious, in the sense that they convey, by their very semantic meaning, my view as to the more accurate picture of administrative law as it developed over time. There is, however, nothing special in the use of language in this regard, since those who adhere to the opposite position deploy language that is equally tendentious. The discussion in this chapter is part of the larger study concerning the export and reception of administrative law in other common law jurisdictions. The effect of the disjunction between perception and reality on such export is interesting. The causation is contestable, and does not necessarily always pull in the same direction. Thus, perception of administrative law as being relatively modern may have hampered its development elsewhere, and at the same time encouraged other jurisdictions to feel freer in adapting its precepts to local circumstance. The essence of the argument presented over the following pages is as follows. The commonly held view about English administrative law is that it is of recent origin, some dating it from the mid-twentieth century, some venturing back to the late nineteenth century. This view, when unpacked, is premised on assumptions concerning doctrinal case law and regulation. There is an empirical and a normative foundation underlying both assumptions. This ‘intellectual package’ constitutes the commonly accepted picture of administrative law as it unfolded in England. This, then, is the perception, grounded in four central constructs concerning case law and regulation, viewed from an empirical and normative perspective. It is set out in the first part of the chapter. The discussion thereafter is concerned with what I term the reality. It mirrors the discourse concerning perception, insofar as it considers case law and regulation from both an empirical and normative perspective. It will be argued that the commonly held view does not cohere empirically with reality concerning case law or regulation, and that the normative assumptions underlying the perceived view do not square with the general approach of the legislature or the courts during the foundational period of administrative law, which runs from the mid-sixteenth century onwards, with earlier origins. This disjunction between perception and reality could have had an impact on the ultimate exportability of English administrative law. The chapter concludes with a sketch of the implications for comparative study of other jurisdictions. These implications are the subject of discussion in the remaining chapters of the volume.

Download the essay from SSRN at the link.

Call For Papers: Applied Feminism and Privacy, Twelfth Feminist Legal Theory Conference, April 2-3, 2020

The Center on Applied Feminism at the University of Baltimore School of Law seeks paper proposals for the Twelfth Feminist Legal Theory Conference. We hope you will join us for this exciting conference on April 2 and 3, 2020. The theme is Applied Feminism and Privacy. As always, the conference focuses on the intersection of gender and race, class, gender identity, ability, and other personal identities. Dr. Leana Wen, President and CEO of the Planned Parenthood Federation of America and the Planned Parenthood Action Fund, will deliver the Keynote.

CALL FOR PAPERS APPLIED FEMINISM AND PRIVACY

The Center on Applied Feminism at the University of Baltimore School of Law seeks paper proposals for the Twelfth Feminist Legal Theory Conference. We hope you will join us for this exciting conference on April 2 and 3, 2020. The theme is Privacy. As always, the conference focuses on the intersection of gender and race, class, gender identity, ability, and other personal identities. We are excited that Dr. Leana Wen, President and CEO of the Planned Parenthood Federation of America and the Planned Parenthood Action Fund, has agreed to serve as our Keynote. We are at a critical time for a broad range of privacy issues. State level abortion bans have put a spotlight on the importance of decisional privacy to women’s equality. Across America, advocates are fighting for reproductive justice and strategizing to preserve long-settled rights. At the same time, our informational privacy is increasingly precarious. Data brokers, app designers, and social media platforms are gathering and selling personal data in highly gendered ways. As a result, women have been targeted with predatory marketing, intentionally excluded from job opportunities, and subject to menstrual tracking by marketers and employers. In online spaces, women have been objectified, cyber-stalked, and subject to revenge porn. With regard to physical privacy, the structural intersectionality of over-policing and mass incarceration impacts women of color and other women. And while a man’s home may be his castle, low-income women are expected to allow government agents into their homes – and to turn over reams of other personal information -- as a condition of receiving state support. In addition, families of all forms are navigating the space of constitutionally-protected family privacy in relation to legal parentage, marriage and cohabitation, and child welfare systems. We seek submissions of papers that focus on the topic of Applied Feminism and Privacy. We will interrogate multiple aspects of privacy, including its physical, decisional, informational, and family dimensions. This conference aims to explore the following questions: Is privacy dead, as often claimed? If so, what does this mean for women? How can privacy reinforce or challenge existing inequalities? How has feminist legal theory wrestled with privacy and what lessons can we draw from past debates? What advocacy will best advance privacy protections that benefit women? How do emerging forms of surveillance impact women? Can intersectional perspectives on privacy lead to greater justice? Who defines the “right to privacy” and what do those understandings mean for women? How is privacy related to other values, such as autonomy, anti-subordination, vulnerability, justice, and equality? We welcome proposals that consider these questions and any other related questions from a variety of substantive disciplines and perspectives. The Center’s conference will serve as a forum for scholars, practitioners, and activists to share ideas about applied feminism, focusing on connections between theory and practice to effectuate social change. The conference will be open to the public. To submit a paper proposal, by Friday, November 1, 2019, please complete this form and include your 500 word abstract: https://forms.gle/k4EPNLaYmEvo4KHUA We will notify presenters of selected papers by early December. About half the presenter slots will be reserved for authors who commit to publishing in the annual symposium volume of the University of Baltimore Law Review, our co-sponsor for this conference. Thus, the form requests that you indicate if you are interested in publishing in the University of Baltimore Law Review's symposium issue. Authors who are interested in publishing in the Law Review will be strongly considered for publication. The decision about publication rests solely with the Law Review editors, who will communicate separately with the authors. For all presenters, working drafts of papers will be due no later than March 20, 2020. Presenters are responsible for their own travel costs; the conference will provide a discounted hotel rate as well as meals. We look forward to your submissions. If you have further questions, please contact Prof. Margaret Johnson at majohnson@ubalt.edu. For additional information about the conference, please visit law.ubalt.edu/caf.

The Ninth Circuit Weighs In On GoT @GameofThrones

In the recently decided case Banks v. Northern Trust Corp., the Ninth Circuit made reference to Game of Thrones by writing,

Northern would like us to read Dabit without considering its clarification in Troice. But we will not render Troice meaningless the way that Game of Thrones rendered the entire Night King storyline meaningless in its final season. Troice directly supports our conclusion that a trustee’s misconduct – over which a beneficiary of an irrevocable trust has no control – cannot constitute misconduct “in connection with” the sale of covered securities where “the only party who decides to buy or sell a covered security as a result of a lie is the [trustee].” Troice, 571 U.S. at 388. To use the language in Troice, the trustee is both the buyer and the “fraudster”; because the trustee can deceive only itself with any alleged misconduct, its misconduct does not require SLUSA preclusion. 

Take that, GoT showrunners.

Gouzoules on The Diverging Right(s) To Bear Arms

Alexander Gouzoules is publishing The Diverging Right(s) to Bear Arms: Private Armament and the Second and Fourteenth Amendments in Historical Context in volume 18 of the University of Alabama Civil Rights and Civil Liberties Law Review (2019). Here is the abstract.

This article compares the historical evolution of the social understanding of private armament with contemporary legal doctrine on the right to bear arms. The District of Columbia v. Heller decision, which held that the Second Amendment protects a personal right to self-defense, and the McDonald v. City of Chicago decision, which held the Second Amendment to be incorporated by the Fourteenth Amendment, both turned on extensive historical analysis. But by reading a broad “individual right to self-defense” into both the Second and Fourteenth Amendments, the Court assumed continuity between the social understandings at the time of these amendments’ respective ratifications. This assumed continuity is belied by the changing roles private weaponry played in American society. This article analyzes the historical development of the ideology of private armament between 1791 and 1868. While the framers of the Second Amendment were motivated by their suspicion of professional standing armies and their preference for citizen militias, the framers of the Fourteenth Amendment harbored no such beliefs and were strongly committed to the vitality of the U.S. Army. And while the arms right established by the Second Amendment may be described as primarily embodying libertarian political principles, the arms right embodied in the Fourteenth Amendment cannot be similarly viewed. Instead, civilian armament after the Civil War served both to protect newly freed African Americans in the South and also to expropriate land from indigenous peoples in the West — two goals that envisioned close cooperation between civilians and federal authorities. These radically different understandings can only be reconciled by defining the right to bear arms at such a high level of generality as to overlook the actual intentions of both amendments’ framers, thus undermining the project of originalism to which these contemporary decisions were ostensibly committed.

Download the article from SSRN at the link. (Correct link provided. Link in SSRN journal is incorrect).

Journal for Civil Rights and Economic Development:CFP: Navigating the Laws of Fashion: Professional Appearances in the Legal Field

A CALL FOR PAPERS FOR A SYMPOSIUM ISSUE

Journal for Civil Rights and Economic Development

Navigating the Laws of Fashion: Professional Appearances in the Legal Field

              Presentation is everything, especially in the legal field: how you speak, where you went to law school, and how you dress or style your hair. Still true today is the fact that women face more challenges with presentation than men. Serious critique of women’s appearances is an unfortunate reality for many female lawyers. People conflate how women dress and style their hair with how well they do their job. Judges and juries form opinions of female attorneys based solely on their looks and attire. Women face an impossible obstacle: look good, but not too good; pay attention to your appearance, but do not be too obvious about it; be different, but about the same as everyone else. Even local and state bar associations and law schools sponsor events about attire and presentation, including events on “properly applying make-up.” These challenges and criticisms can be even greater for women of color or LGBTQ women.

              These criticisms have continued to spark heated discussions about sexism and gender inequality in the legal field. The Journal of Civil Rights and Economic Development invites enthusiastic scholars, commentators, and practitioners who wish to add their voice to these discussions and present a perspective on this topic.

              The Journal for Civil Rights and Economic Development and the Ron Brown Center for Civil Rights invite you to be part of our exploration.

We welcome full-length traditional law review articles with a maximum of 75 pages, as well as shorter essays and commentaries with a minimum of 10 pages. Authors will be selected based on brief abstracts of their articles, essays, or commentaries. We aim for an array of perspectives, methodologies, and expertise.

To submit, please send:

• Your name, title, and professional affiliation;
• Your curriculum vitae/resume;
• Your contact details including phone number and email address;
• A two to three page abstract summarizing your essay or article and indicating what your expected page length will be.

Optional: Full Manuscripts are also welcome

• Manuscript between 25 and 75 pages for full-length articles and between 10 and 20 pages for essays and commentaries.

Please submit your abstract (or manuscript/essay/commentary) for consideration to: jcred@stjohns.edu

Submission Deadlines:

Abstract Deadline: August 15, 2019

Selected Author Notification Date: September 15, 2019

Essay/Book Review Deadline: December 31, 2019

If you have any questions about this call for papers or the Journal, please contact the Editor-in-Chief, Hunter Igoe, at hunter.igoe17@stjohns.edu.

Reposted: Call For Papers, Prison Abolition, Human Rights, and Penal Reform: From the Local to the Global

Reposted: Call For Papers 

Prison Abolition, Human Rights, and Penal Reform:

From the Local to the Global

Mass incarceration and overcriminalization in the United States are subject to critique by some on both the right and the left today. Many critics increasingly talk of prison abolition. At the same time, the international human rights movement continues to rely upon criminal punishment as its primary enforcement tool for many violations, even as it criticizes harsh prison conditions, the use of the death penalty, and lack of due process in criminal proceedings. What would it mean for the human rights movement to take seriously calls for prison abolitionism and the economic and racial inequalities that overcriminalization reproduces and exacerbates? And what might critics of the carceral regime in the United States have to learn from work done by international human rights advocates in a variety of countries?

September 26-28^th, 2019, the Rapoport Center will host in Austin an interdisciplinary conference to consider the relationships among the human rights, prison abolition, and penal reform movements. Do they share the same goals? Should they collaborate? If so, in what ways? The conference is co-sponsored by the Frances Tarlton “Sissy” Farenthold Endowed Lecture Series in Peace, Social Justice and Human Rights, Center for European Studies, William Wayne Justice Center for Public Interest Law, LLILAS Benson Latin American Studies and Collections, John Warfield Center for African and African American Studies, Center for the Study of Race and Democracy, Department of Sociology, Center for Population Research, and Capital Punishment Center.

Ruth Wilson Gilmore will offer the keynote lecture on September 26. We invite proposals for papers, panels, art, or other forms of presentation from activists, practitioners, and scholars in all disciplines. We are eager to include those who study or advocate around criminal law and human rights in different regions and contexts, those who work on various forms of incarceration (including immigration detention), and those who explore alternatives to current criminal punishment regimes. We encourage discussion of the distributive effects of various constructions of and responses to crime. Topics might include:

• Racial capitalism and prison abolition
• Prison abolition: short- versus long-term goals
• Abolition and efforts to reform/transform conditions of confinement: are they in opposition?
• Capital punishment, human rights, and the goals of death penalty abolition
• Mass incarceration and surveillance
• Gender, sexuality, reproductive rights and the prison system
• Human rights and decriminalization
• The human rights movement and national and international criminal law
• Lessons from transitional and restorative justice
• Incarceration and the intersections of criminal and immigration law
• Immigration detention and the (private) prison industrial complex
• Potential responses to violent crime
• The UN and crime
• Exportation of criminal justice models: good and bad
• The role of victims in carceral regimes and anti-carceral responses
•  Reflections on the role human rights courts do and should play in the carceral state
• Black Lives Matter, human rights, and abolition
• Queer politics and abolition

Please send an abstract of your paper, panel, or project in under 500 words to Sarah Eliason by July 15, 2019. A limited number of need-based travel grants are available to support travel costs for selected participants. If you wish to apply for a travel grant, please complete this application form by July 15, 2019.

Tamanaha on John Dewey on Law

Brian Z. Tamanaha, Washington University, St. Louis, School of Law, is publishing John Dewey on Law in the Encyclopeida of the Philosophy of Law and Social Philosophy (forthcoming). Here is the abstract.

John Dewey wrote a handful of essays on various legal topics, and he made sprinkled references to law in his voluminous body of work. He did not elaborate a special theory of law, but rather analyzed legal matters from a pragmatic standpoint, treating law like other social institutions. This entry therefore begins with a summary of pragmatism. Then it addresses, in order, three topics Dewey covered with enduring significance: his critique of natural law, his account of judicial decision making, and his social theory of law. Beyond the specific insights conveyed in this essay, the enduring significance of Dewey’s work lies in his overall mindset—his belief in empirically informed intelligent inquiry and in the human capacity to engage in actions that bring improvements to the lives of individuals and society, through the courage to act and make empirical and value judgments in the face of disagreement, uncertainties, and the absence of absolute truths or universal standards.

Download the essay from SSRN at the link.

New From UVA Press: Melissa J Ganz: Public Vows: Fictions of Marriage in the English Enlightenment @uvapress

Melissa J. Ganz, Associate Professor of English, Marquette University, has published Public Vows: Fictions of Marriage in the English Enlightenment (University of Virginia, 2019). Here is the abstract.

In eighteenth-century England, the institution of marriage became the subject of heated debates, as clerics, jurists, legislators, philosophers, and social observers began rethinking its contractual foundation. Public Vows argues that these debates shaped English fiction in crucial and previously unrecognized ways and that novels, in turn, played a central role in the debates. Like many legal and social thinkers of their day, novelists such as Daniel Defoe, Samuel Richardson, Frances Burney, Eliza Fenwick, and Amelia Opie imagine marriage as a public institution subject to regulation by church and state rather than a private agreement between two free individuals. Through recurring scenes of infidelity, fraud, and coercion as well as experiments with narrative form, these writers show the practical and ethical problems that result when couples attempt to establish and dissolve unions simply by exchanging consent. Even as novelists seek to shore up the legal regulation of marriage, however, they contest the specific forms that these regulations take. In recovering novelists’ engagements with the nuptial controversies of the Enlightenment, Public Vows challenges longstanding accounts of domestic fiction as contributing to sharp divisions between public and private life and as supporting the traditional, patriarchal family. At the same time, the book counters received views of law and literature, highlighting fiction’s often simultaneous affirmations and critiques of legal authority.

 

Public Vows received the Walker Cowen Memorial Prize, University of Virginia, in 2018.

Lehtimäki on Two Tales of Finding the Content of Law @hybridial

Mika Lehtimäki, University of Oxford Faculty of Law, has published Two Tales of Finding the Content of Law. Here is the abstract.

The paper examines two different views of understanding the content of law and truth of our legal propositions, arguing that this largely depends on our point of view on law. However, furthering our understanding of the nature of law also depends on our ability to elucidate law’s relation to morality, the nature of normative claims made by law and the relationship between validity of legal norms and their justification. These factors determine and restrict the way we can ascertain the content of law. I examine in the paper, on the one hand, Joseph Raz’s statement on the scope of justifiable implication of the content on authoritative directives and intentions on law-makers and, on the other hand, Ronald Dworkin’s account on the role of integrity in identification and justification of legal norms. This means comparing Raz's argument that identification of law cannot rely on substantive political or moral argumentation and Dworkin’s account of law as integrity, which relies inherently on political morality, understanding the content of law as transparent to the scheme of principles justifying our authoritative directives. I argue in this paper that Raz’s and Dworkin’s views are incompatible concerning their relationships to morality, their justificatory aspects and ascertainment of legal content. However, they show that conceptual truths about law should correspond to our actual legal practices and that there may be space for refinements in their respective theories. But this leads to pluralistic views on law that remain to be explored.

Download the article from SSRN at the link.

Weiner on Talking Animals and the Internationalist Liberal Imagination: The Case of E.B. White @MarkSWeiner

Mark S. Weiner,  Professor of Law, Rutgers Law School, has published Talking Animals and the Internationalist Liberal Imagination: The Case of E.B.White, at 2019 Juridisk Publikation 95. Here is the abstract.

This essay considers the significance of the literary representation of talking animals for the legal ideals of midcentury liberal internationalism. Its purpose is to contribute to the cultural history of international law. It does so by reflecting on the conceptual and aesthetic links between the American author E. B. White’s classic children’s stories Stuart Little (1945) and Charlotte’s Web (1952) and his analysis of: 1) the rules of English prose, in the treatise The Elements of Style (1959), and 2) the establishment of the United Nations, about which he wrote extensively. The method of the essay is that of literary analysis, which examines an author’s use of and approach to language. In White’s view, good English style and sustainable international order both depended on the creation of “hard” rules enforceable, respectively, through critical literary judgment and global legal institutions. White’s contemporaneous depiction of anthropomorphic animal speech invites readers to imagine a humankind that has transcended the particularity of nationalism—a global civilization to be forged through the application of critical reading practices within a rules-based international order. 

Download the article at the link.

CFP: Law, Technology, and Humans, Workshop and Symposium, QUT, December 9, 2019 @QUT_IP

Call for Papers: Law, Technology, and Humans, Workshop and Symposium

What is Real About Law and Technology.  The Workshop will be held December 9, 2019 at the Gardens Point Campus of the Queensland University of Technology. The keynote presenter is Professor David Caudill, Villanova Law School. The Symposium will be published in volume 2 of the Law, Technology and Humans, in 2020.

More information is available here.  

Neto on the (dis)Similar Properties of Legal and Moral Duties in Law and Morals: Proceedings of the Special Workshop Held at the 28th World Congress of the International Association for Philosophy of Law and Social Philosophy (2017)

Joao Andrade Neto, Universität Hamburg; Albrecht Mendelssohn Bartholdy Graduate School of Law; Pontifical Catholic University of Minas Gerais, is publishing On the (dis)Similar Properties of Legal and Moral Duties in Paula, André Ferreira Leite de; Santacoloma Santacoloma, Andrés (eds.). Law and Morals: Proceedings of the Special Workshop held at the 28th World Congress of the International Association for Philosophy of Law and Social Philosophy in Lisbon, Portugal, 2017. Stuttgart: Franz Steiner Verlag, 2019.

Do legal and moral duties share exactly the same properties? Moral philosophers such as Hare, Searle, and W. D. Ross believe that moral conflicts exist in which an individual has equally good reasons to fulfil two or more obligations that cannot be simultaneously satisfied. In such cases, they say, one has “reasons other things being equal” to act one way or another. These so-called “prima-facie duties” contrast with “definitive” moral duties, which remain after all reasons were considered. Some legal philosophers affirm that this separation applies to legal duties, as well. Alexy employs the same classification to differentiate two types of constitutional norms: principles and rules. As the differentiation originally had a philosophical scope, it is relevant to ask whether the separation between prima facie and definitive moral duties can ground a similar differentiation between types of legal norms. This essay addresses this question. Rather than denying the difference between “prima facie” and “definitive” moral duties, it asks whether prima facie legal duties actually exist. The aim is to demonstrate that, from the internal perspective, a possible consequence of legal differentiation and institutionalization is that only definitive duties are to be regarded as law.

Download the essay from SSRN at the link. 

Call for Nominations, AALS Section on Women in Legal Education, 2020 Ruth Bader Ginsburg Lifetime Achievement Award @WomenInLegalEd

Call for Nominations for the AALS Section on Women in Legal Education 2020 Ruth Bader Ginsburg Lifetime Achievement Award

The AALS Section on Women in Legal Education is pleased to open nominations for its 2020 Ruth Bader Ginsburg Lifetime Achievement Award. In 2013, the inaugural award honored Justice Ruth Bader Ginsburg. Subsequent winners include Catharine A. MacKinnon (2014), Herma Hill Kay (2015), Marina Angel (2016), Martha Albertson Fineman (2017), Tamar Frankel (2018), and Phoebe Haddon (2019). All of these remarkable women were recognized for their outstanding impact and contributions to the Section on Women in Legal Education, the legal academy, and the legal profession.

The purpose of the Ruth Bader Ginsburg Lifetime Achievement Award is to honor an individual who has had a distinguished career of teaching, service, and scholarship for at least 20 years. The recipient should be someone who has impacted women, the legal community, the academy, and the issues that affect women through mentoring, writing, speaking, activism, and by providing opportunities to others.

The Section is now seeking nominations for this most prestigious award. Only individuals who are eligible for Section membership may make a nomination, and only individuals—not institutions, organizations, or law schools—are eligible for the award. As established by the Section’s Bylaws, the AALS Section on Women in Legal Education Executive Committee will select the award recipient, and the award will be presented at the 2020 AALS Annual Meeting. 

Please submit your nomination by filling out this electronic form​ by August 30, 2019. Please note that only nominations submitted via the electronic form by the deadline will be accepted. If you encounter difficulties completing the survey, please contact Lisa Mazzie at: lisa.mazzie@marquette.edu.

Rosen on The Lawyer as Superhero: How Marvel Comics' Daredevil Depicts the American Court System and Legal Practice

Louis M. Rosen, Barry University School of Law, is publishing The Lawyer as Superhero: How Marvel Comics' Daredevil Depicts the American Court System and Legal Practice in volume 47 of the Capital University Law Review (2019). Here is the abstract.

This article will explore on the portrayal of lawyers and the legal system in Daredevil comic books, particularly issues published in the Twenty-First Century. Because the Daredevil movie and the first two seasons of the Netflix television series have already been examined from various legal perspectives in past articles, this piece will highlight legal storylines from the comics themselves. This exploration is important because writers of future Netflix seasons will surely draw story elements from the comics discussed here and will very likely adapt these exact stories, encouraging the larger television audience to seek out and read the original comics. Given the character’s newfound fame and popularity, Daredevil can accomplish a heroic feat few superheroes can – his comics and television episodes can add to the general public’s ideas of legal practice, ideally portraying lawyers and the legal system accurately, or at least positively, turning entertaining, dramatic, action-packed fictional stories into teaching moments about what lawyers should and should never do.

Download the article from SSRN at the link.

CFP: 2019 Graphic Justice Disuccsions, USC, Queensland, Australia @usceduau @graogu @LexComica

From the emailbox:

2019 Graphic Justice Discussions – “Drawing the Human: Law, Comics Justice”28-29 November 2019, USC, Queensland, Australia The 2019 conference of the Graphic Justice Research Alliance will be hosted by the USC School of Law and Criminology, University of the Sunshine Coast, Queensland Australia. The conference explores the theme Drawing the Human: Law, Comics, Justice and will run on the 28^th and 29^th November 2019. The conference seeks to examine the role of comics, graphic novels and graphic art in constituting as well as critiquing law, rights and justice as they relate to and extend beyond the human. Proposals for papers and panels are welcome from academics, postgraduate students and artists from across a range of disciplines including law, criminology and justice, comics studies, visual and cultural studies and the humanities. Please see the attached call for papers which closes on the 31stof August. We look forward to welcoming you to the Sunshine Coast in November. 

Kazmierski and Pacione on 50 Years of Law and Legal Studies at Carleton University @Carleton_U @DarrenPacione

Vincent Kazmierski and Darren Pacione, both of Carleton University, Department of Law and Legal Studies, have published From Law to Legal Studies and Beyond: 50 Years of Law and Legal Studies at Carleton University at 41 Dalhousie Law Journal 379 (2019). Here is the abstract.

This paper considers the evolution of Carleton University’s Department of Law and Legal Studies and its approach to the study of law and the legal within the context of the continuing growth of legal studies programs across Canada. It starts by outlining the historical development of the Department and the evolution of its perspective of its role and purpose. Part II examines a number of aspects of the architecture of fourteen undergraduate legal studies programs across the country and the ways in which the roles of these programs are described. Part III provides a brief outline of the current structure of the undergraduate programs offered by the Department and considers how it fits within the broader landscape of academic units offering undergraduate legal studies programs in Canada. The paper concludes by identifying some of the challenges faced by the Department as it prepares for the next 50 years.

Download the article from SSRN at the link.

Meyler on Allegory, Monument, and Oblivion in Kazuo Ishiguro's The Buried Giant @StanfordLaw

Bernadette Meyler, Stanford Law School, is publishing Aesthetic Historiography: Allegory, Monument, and Oblivion in Kazuo Ishiguro's The Buried Giant in volume 2 of Critical Analysis of Law (2018). Here is the abstract.

This essay turns to Kazuo Ishiguro’s 2015 book The Buried Giant for insights into the moral and political implications of the kinds of historiography chosen in the aftermath of atrocity. The Buried Giant foregrounds monument, oblivion, and its own form, allegory, as historiographical strategies. If monuments aspire to bring the past into an eternal present, functioning as a kind of symbol, the novel indicates the impossibility of this goal. At the same time, it rejects oblivion’s efforts to entirely remove the traces of prior atrocities. The Buried Giant instead presents a version of allegory as an alternative mechanism for engaging with and negotiating a troubled inheritance. The allegory in question neither involves a one-to-one correspondence between events of the novel and national or international struggle, nor does it simply bring the reader from its particulars to a universal truth. It rather suggests a reciprocal reading of particulars through the windows they furnish upon each other, looking at medieval Britain as though through the lens of post-WWII Japan or examining England’s imperial past from the perspective of its prehistory in a time out of memory. This variety of allegory bears a family resemblance to that extolled by Walter Benjamin and Paul de Man, both of whom contrasted allegory with the symbol, and to Christopher Tomlins’s efforts to produce a Benjaminian historiography.

Download the essay from SSRN at the link.

Call For Papers: Gender Justice: Theoretical Practices of Intersectional Identity

CFP: for Essay Collection

Title: Gender Justice: Theoretical Practices of Intersectional Identity

Series: Law, Culture and Humanities: http://www.fdupress.org/law-culture-literature-series/

This essay collection examines how gender, as a category of identity, must continually be understood in relation to how structures of inequality define and shape its meaning. It asks how notions of “justice” shape gender identity and whether the legal justice system itself privileges notions of gender or is itself gendered. Shaped by politics and policy, Gender Justice seeks proposals for essays that contribute to understanding how theoretical practices of intersectionality relate to structures of inequality and relations formed as a result of their interaction.

Given its theme, the collection invites essays that examine theoretical practices of intersectional identity at the nexus of “gender and justice” that might also relate to issues of ▪ Sexuality ▪ Race ▪ Class ▪ Age ▪ Ability

Proposals to include: ▪ Abstract of 200-words ▪ Author biography of 100-words

Submission deadline: ▪ June 29, 2019

Send to: ▪ Editor: Elaine Wood, JD, PhD; esw55@georgetown.edu

Interdisciplinary Legal Studies Research Cluster Launch Event, University of Dundee

Interdisciplinary Legal Studies Research Cluster Launch Event

http://interlawdundee.eventbrite.com/

Law is a subject and a practice that is at all points open to its surroundings. Law regulates the world in numerous ways and in a wide variety of contexts. The constitutive effects of law are widespread throughout society and culture, mediating the structures and possibilities of social life and communal relations—locally, nationally, internationally.

The study of law in recent decades has accordingly and prominently focused on the law’s relations with other areas of understanding and knowledge, with leading examples including socio-legal studies, law and humanities, and critical legal studies. Significant arms of the global legal academy are now concerned not only with doctrine and principle, but with the interrelationships between law in terms of doctrinal or institutional phenomena and its wider constitutions and appearances throughout society, culture, and the material world.

Building upon this expansive energy, the Interdisciplinary Legal Studies research cluster adopts a similarly open-ended view of legality, bringing together scholars and other stakeholders working at the multiple intersections between or across legal and other disciplinary settings. Through this connectivity—both interpersonal and interdisciplinary—the cluster seeks to examine and gain rich and varied insights into complex contemporary questions of law, authority, and justice.

This event marks the launch of this cluster, showcasing a range of current research work related to law that is taking place at the intersection of a range of disciplines, including cultural studies, English, philosophy, geography, and art.

Speakers confirmed so far:

Anne Wagner, Université du Littoral Côte d'Opale

Chloë Kennedy, University of Edinburgh

Kimberley Bryson, University of Sussex

Dominic Smith, University of Dundee

Megan O’Neil, University of Dundee

Golnar Nabizadeh, University of Dundee

Waters and Nelson on Reconsidering the Legal History of Blockade and Submarines in WWI @DeanCWaters @WindsorLaw

Christoper Waters, University of Windsor Faculty of Law, and Robert Nelson, University of Windsor, are publishing Slow or Spectacular Death: Reconsidering the Legal History of Blockade and Submarines in WWI in the University of Toronto Law Journal. Here is the abstract.

In popular culture and imagination, World War I was a bloody, muddy, senseless, almost accidental conflict. International law seems far removed from the causes of the war or the way hostilities were conducted. This seeming irrelevance of international law in popular imagination is rejected in intellectual, literary, and scholarly accounts. However, during the centenary of the war, it is time to rethink the role law played in this first large-scale conflict of the twentieth century. Drawing on recent legal historiography as well as original research, this article will argue, through a look at the conduct of naval warfare, that law was central to how Allied, Central, and neutral states navigated the conflict. Specifically, we examine the role law played in the practices of the warring parties in navigating the interdiction of – and attacks on – the civilian shipping of belligerents and neutrals.

Download the article from SSRN at the link.

New From Edward Elgar: Research Handbook on Feminist Jurisprudence @ElgarPublishing

New From Edward Elgar:

Research Handbook on Feminist Jurisprudence (Robin West and Cynthia Grant Bowman, eds., 2019).

The Research Handbook on Feminist Jurisprudence surveys feminist theoretical understandings of law, including liberal and radical feminism, as well as socialist, relational, intersectional, post-modern, and pro-sex and queer feminist legal theories. Featuring contributions from a diverse team of prominent scholars, this Research Handbook illuminates the ways in which feminist scholarship has enriched understandings of law’s sometimes subordinating structures and the ways in which law can be interpreted or changed so as to promote the equality, liberty, wellbeing, and interests of women. The expert contributors offer a vast range of feminist perspectives on law, including liberal, radical, and post-modern feminism, and explore the implications of these theoretical stances for understandings of the nature of law, legal change, and the relationship between law and politics. Chapters analyse the influence of feminist legal theories on doctrinal areas of law including US constitutional and civil rights law, international law, and various areas of private law. This insightful book will be of interest to law students, legal scholars, and scholars of political and moral philosophy seeking to understand the entire body of feminist legal scholarship from the early 1970s to the present, as well as its variants, and relationships among different theoretical perspectives.

 

Kate Hamburger Center for Advanced Study "Law as Culture: Fellowship: Call For Applications

The Kate Hamburger Center for Advanced Study "Law as Culture"
Fellowship Posting

Announcing a Fellowship Posting by the Kate Hamburger Center for Advanced Study "Law as Culture" for the research period from April 1, 2020, to March 31, 2022.

The Kate Hamburger Center for Advanced Study "Law as Culture" (http://www.recht-als-kultur.de/en) invites academics of excellent standing to apply for a fellowship or junior fellowship for a maximum of 12 months on the subject: Law and Community.

OVERVIEW: Subsequent to developing the "Law as Culture" paradigm in the first funding phase (2010-2016), the Center will now direct its attention to the interaction between law and other cultural spheres in the second funding phase (2016-2022). During the stated research period, the Center is dedicated to examining the relationship between Law and Community. Within this research area, the diversity of cultures of family law and societal forms globally will be examined. Research projects shall also be oriented towards one of the Center's three traversal dimensions, namely "Cultures of Differentiation and Comparing Legal Cultures," "Human Rights and Autonomy," or "The Binding Force and the Emotive Foundations of the Law."

The tensions described and analyzed as contradictions of normative orders in theories of legal pluralism can only be understood with view to the social communities hiding behind these with their respective religious, indigenous, local, and regional claims. In this context, the question of how these social communities are held together requires closer examination, as does their relationship to secondary, superordinate, and subordinate legal ties. Concretely speaking, ideas of superior or even universalist legal communities, such as the European Legal Community or a Human Rights Community, should be explored while bearing in mind the normative and emotionally affective boundaries of community building.

Shaped by social proximity and emotional entanglement, the family continues to be regarded as a central place where societal values are reproduced, goods are distributed, and mutual responsibility is assumed. The longstanding principle of family solidarity is reflected in numerous legal orders. At the same time, however, family law also mirrors changing family forms and family ideals. A wide-ranging transformation of society and its normative foundations manifests in the pluralization of family forms. It is precisely on the basis of that which constitutes the normative character of the family that constructions of "us" and "them" become clear. In cases involving foreign elements, for example, the law of the "other" is applied using private international family law; exceptions based on public policy nevertheless call for a "we."

In addition to the comparison of family law cultures, the research area Law and Community seeks the comparison of (legal) cultures at the level of other forms of community and their connection to applicable law: Which social norm systems form traditional local neighborhoods, modern clan structures, or "post-traditional communities" in contemporary subcultures, and what is their relationship to state law? How are these particular claims to universal validity conveyed? To what extent is valid law accepted by them or pragmatically integrated, and do they attempt to enforce the ideas of norms beyond their own group boundaries?

APPLICATION PROCEDURE: The Kate Hamburger Center for Advanced Study "Law as Culture" offers a creative research atmosphere for various disciplines in the cultural and legal sciences. Academics of excellent standing are invited to apply by July 15, 2019. Applications should include a résumé, project description (5-10 pages), and selected publications, as well as list the applicant's availability during the research period. They should be submitted preferably by email (kaesling@uni-bonn.de) or, alternatively, by mail:

Directorate of the Kate Hamburger Center for Advanced Study "Law as Culture"
c/o Dr. Katharina Kaesling
Research Coordinator
Konrad-Zuse-Platz 1-3
53227 Bonn
Germany

Jewel and Campbell, Death in the Shadows @ljewel

Lucy A. Jewel , University of Tennessee College of Law, and Mary Campbell are publishing Death in the Shadows in Hastings Race and Poverty Law Journal (2019). Here is the abstract.

This paper is about the law and visual culture. Its centerpiece is Parson Weems’ Fable (1939), a painting by the American artist Grant Wood (1891-1942) that depicts the apocryphal story of George Washington and the cherry tree. At first glance, Wood’s image appears to celebrate an enduring myth of American virtue, namely Washington’s precocious inability to tell a lie. Studying the picture more closely, however, one finds a pair of black figures, presumably two of the Washingtons’ slaves. Stationed beneath dark storm clouds and harvesting cherries from a second tree, these slaves invoke yet another national myth, that of the domestic serenity that supposedly reigned on Virginia’s colonial plantations. In the process, they quietly invoke the country’s grievous history of racial oppression, coercion, and brutality.

This isn’t the only place where Woods’ painting speaks of racial violence. To the contrary, Parson Weems’ Fable also raises the specter of lynching. Examining the shadows directly beneath the Washingtons and their fabled tree, one discovers a hanging black body. Intentional or not, this dangling corpse conjures the spectacular acts of theatrical violence that mobs of Euro-Americans inflicted on African Americans during the late nineteenth century and well into the twentieth. By the 1930s, heated protests emerged against lynching—in popular songs, magazines, and art exhibitions, as well as more traditional political arenas. Unlike the painters most closely associated with him, Wood didn’t participate directly in such moments of artistic protest. Nonetheless, he would have been exposed to them as he painted Parson Weems’ Fable in the winter of 1939.

Regardless of Wood’s intentions, the work he created persistently connects the country’s origin myths to the murderous violence the U.S. has repeatedly inflicted on persons of color. Moreover, as the painting itself seems to realize, the law and culture forged by colonial Virginia planters like George Washington eventually morphed into a collective white psychopathy that found vicious expression in the practice of spectacle lynching. This colonial legal regime was deeply visual—a fact that accounts for not only its power, but also for the fundamental influence it continues to exert on current American conceptions of race.

A deep reading of Parson Weems’ Fable in the context of both its time (1939) and its setting (1736) reveals the extent to which the law is visual and the visual is legal. Indeed, the painting gives us a valuable lens for perceiving the pervasive connections that run between the two. Our thesis is that the profoundly visuo-legal nature of the country’s racial foundations helps explain the lack of progress the nation has made in dismantling the color line. As a result, the impulse to join the seemingly unrelated disciplines of legal study and art history isn’t an academic gimmick, but rather a necessity. For centuries, images have worked in tandem with statutes, judicial decisions, and various forms of legal (and illegal) punishment to indelibly imprint a logic of racial violence in our collective mindset. In order to fully excavate this logic, we need scholars who can analyze pictures as well as the law.

In terms of structure, we begin by introducing the painting and our analytical framework and method. After that, we explain the theoretical foundations for studying law and culture in this context. Finally, we connect colonial Virginia’s legal and cultural landscape to the traumatic racial violence that continues to haunt our national mythology.

Download the article from SSRN at the link.

Lehtimäki on Necessary Connection Between a Theory of Law and Theory of the State

Mika Lehtimäki, University of Oxford, Faculty of Law, has published Necessary Connection between a Theory of Law and Theory of the State. Here is the abstract.

Legal theory is essentially an inquiry into the nature of law, its fundamental features and institutions. Such theories are also inherently linked with human communities and especially communities that have acquired institutionalised features and practices that we commonly call ‘legal’. As such, law and legal system is often an aspect of a political system. Theories of the state, on the other hand, deal essentially with questions on the possibilities of legitimate structure of domination in our political societies, often in territorial states centralized for collective and exclusive exercise of power over our lives and fortunes. This paper evaluates two apparently opposing views on the necessary connections of theories of law and state. I argue in the paper that the question is a fundamental one and results directly from the underlying objectives a legal or a political theorists sets as his or her agenda. For example setting as the fundamental objective of law as providing normative reasons for action of its subjects, remaining true to the agenda does not require inquiry into moral or equivalent justifications. The opposite is true is if the fundamental objective of law were constraining the government from atrocities against its subjects.

Download the article from SSRN at the link.

Forthcoming Publication: Monika Fludernik, Metatphors of Confinement (OUP, 2019) @ArsScripta

Forthcoming: Monika Fludernik, Metaphors of Confinement: The Prison in Fact, Fiction, and Fantasy (Oxford University Press, 2019).

Metaphors of Confinement: The Prison in Fact, Fiction, and Fantasy offers a historical survey of imaginings of the prison as expressed in carceral metaphors in a range of texts about imprisonment from Antiquity to the present as well as non-penal situations described as confining or restrictive. These imaginings coalesce into a 'carceral imaginary' that determines the way we think about prisons, just as social debates about punishment and criminals feed into the way carceral imaginary develops over time. Examining not only English-language prose fiction but also poetry and drama from the Middle Ages to postcolonial, particularly African, literature, the book juxtaposes literary and non-literary contexts and contrasts fictional and nonfictional representations of (im)prison(ment) and discussions about the prison as institution and experiential reality. It comments on present-day trends of punitivity and foregrounds the ethical dimensions of penal punishment. The main argument concerns the continuity of carceral metaphors through the centuries despite historical developments that included major shifts in policy (such as the invention of the penitentiary). The study looks at selected carceral metaphors, often from two complementary perspectives, such as the home as prison or the prison as home, or the factory as prison and the prison as factory. The case studies present particularly relevant genres and texts that employ these metaphors, often from a historical perspective that analyses development through different periods.

 

Via Simon Stern (@ArsScripta).

Call For Applications: Institute for Interdisciplinary Legal Studies, University of Lucerne, Visiting Fellows 2020

From the e-mailbox:

 

Call for Applications: Visiting Fellows 2020 The Institute for Interdisciplinary Legal Studies at the University of Lucerne is currently welcoming applications for visiting fellowships for 2020. The Visiting Fellows Programme enables promising junior scholars (PhD students and postdocs) to spend a period of time conducting research at the institute. During their stay, fellows enjoy access to our specialist resources, and are invited to share and develop their ideas via participation in lectures, seminars, colloquia and conferences. The fellowships provide a grant towards travel and accommodation costs, with the possibility of an additional stipend to defray supplementary living expenses. The standard period of tenure is between four and eight weeks. The submission deadline is Monday 30 September 2019. Further details here: Visiting Fellows Programme 2020.

Recent Publications in Law and Literature @routledgebooks

ICYMI: Recently published books in the area of law and literature, from Routledge: Chloe A. Gill-Khan, The Politics of Integration: Law, Race, and Literature in Post-War Britain and Frace (Routledge, 2019) (Studies in Migration and Diaspora).

After almost seven decades, Britain and France, nations with divergent political cultures and heirs to contrasting philosophies of 'integration', have proclaimed the failure to integrate their post-war ethnic minorities: at this present time, the ‘Muslim’. The ‘argument’ of this book, therefore, is a question: despite the legal, political and social commitments that emerged from the events of the Holocaust, why do both nations continue to govern minorities on the sites of the law and race? Through comparative readings of British Asian and Franco-Maghrebian literatures, the author examines the contours and patterns of British and French post-war governance and racism over four decades. Departing from prevailing theories in postcolonial studies that situate post-war racism within the narrative of colonialism or the politics of the nation-state, The Politics of Integration shows how we must re-appraise the inter-war histories of minorities if we are to ask more meaningful questions about the present. We are invited to take stock of how well theorization of post-war ethnic populations and their politics have served us in terms of asking: what does history tell us, and how and where do we - Europe and its minorities - go from here? As such, the book will appeal to scholars in multiple disciplines in the humanities and social sciences such as history, philosophy, literature, cultural and postcolonial studies.

 

Baber Johansen, The Islamic Law on Land Tax and Rent: The Peasants' Loss of Property Rights as Interpreted in the Hanafite Legal Literature of the Mamluk and Ottoman Periods (Routledge, 2018) (Routledge Library Editions: Islam, State, Society)

This book, first published in 1988, argues that a close inspection of the development of Hanafite law in the Mamluk and Ottoman periods reveals changes in legal doctrine which were not restricted to civil transactions but also concerned the public law. It focuses in particular on the interrelated areas of property, rent and taxation of arable lands, arguing that changes in the relationship between tax and rent led to a redefinition of the concept of landed property, a concept at the very heart of the Islamic legal system. This title will be of particular interest to students of Islamic history.

 

Livkhovski on The Eagle and the Dove: Jewish Law Scholars and Roman Law During the Interwar Period

Assaf Likhovski, Tel Aviv University, Buchmann Faculty of Law, has published The Eagle and the Dove: Jewish Law Scholars and Roman Law during the Interwar Period in Pensiero giuridico occidentale e giuristi romani: Eredità e genealogie (Pierre Bonin, Nader Hakim, Fara Nasti and Aldo Schiavone eds., Torino: G. Giappichelli, 2019). Here is the abstract.

In the early decades of the twentieth century, a group of Jewish legal scholars working in Eastern Europe, and later in Mandatory Palestine, sought to « revive » (i.e., modernize) Jewish law and turn it into the legal system of the Jewish community in Palestine — and later the legal system of the State of Israel. Inspired by the nationalist legal ideas of the German historical school, as well as the successful revival of the Hebrew language, the Jewish legal revival project created a body of scholarship on Jewish law, established the first Jewish law school in Mandatory Palestine, and even influenced the work of a unique communal court system that functioned in the Jewish community in Palestine until the end of British rule in that territory. The Jewish legal revival project had an ambivalent attitude to Roman law (both ancient and modern). Modern scholarship on Roman law, especially nineteenth-century German legal scholarship, was seen as a model to be emulated by the Jewish legal revivers. Indeed, the Jewish legal revival project was often simply understood as a process of reorganization of the materials of Jewish law based on legal categories, models, and methodologies taken from modern Roman law scholarship. On the other hand, the legal revivers saw Roman law as the « other » of Jewish law, often arguing that the principles underlying the latter were utterly different from those of the former. Roman law was thus imagined and used by the early-twentieth-century Jewish law scholars discussed in this article in contradictory ways: sometimes as a legal system that should be emulated, and sometimes as a legal system whose norms and institutions should be shunned. Thus, as this article shows, Roman law, as it was described in the legal thought of the group of legal scholars I study, was used as a foil against which modern Jewish legal identity could be created.

Download the essay from SSRN at the link.

UNSW Offering PhD Scholarship: Applications Being Accepted Now @UNSW

From Dr. Ben Golder, Associate Dean (Education), Faculty of Law, UNSW Sydney

UNSW is continuing its generous Scientia Scholarship scheme, which features a full fee waiver, a $41,209 (AUD) annual stipend, and an annual professional development fund.

The UNSW Scientia PhD Scholarship Scheme is part of UNSW’s dedication to harnessing our cutting-edge research to solve complex problems and improve the lives of people in local and global communities. Scientia candidates will have a strong commitment to making a difference in the world with demonstrated potential for contributing to the social engagement and/or global impact pillars of the UNSW 2025 Strategy.

Applicants are required to express their interest in a specific research area with an identified supervisory team. There are over 190 research projects to choose from. The following project, working with Dr Ben Golder, Dr Jessica Whyte and Dr Daniel McLoughlin, may be of interest to members of this list and their students:https://www.scientia.unsw.edu.au/scientia-phd-scholarships/crisis-human-rights

This project critically interrogates the claim that there is a contemporary ‘crisis’ of human rights. Under threat both from right-wing authoritarians and xenophobic populists and from left-wing critics of their neoliberal politics and apologetics for militarised humanitarian intervention, proponents of HR face a reckoning with our troubled political times. What is the fate of human rights in the era of populist insurgencies, neoliberal austerity and endless global war? Using the tools of critical theory, the project will examine scholarly and public critiques of human rights, asking whether existing HR movements, organisations and norms are sufficiently robust to respond to them.