June 30, 2020

CFP: Proposed Special Issue: Law and Literature, Humor and the Law

Proposed Special Issue for Law and Literature (Cardozo Law School):

Humor and the Law

Humor in its various forms, from comedy and satire to stand-up and cartoons, is regularly at the centre of juridical debates and actual litigation: from defamation and blasphemy to copyright violations and incitement to hatred. Yet, due to its inherent ambiguity and frequent elusiveness, humor can make it particularly difficult to draw a clear line between lawful and unlawful expression. How exactly does the law regulate humor, and how does that change across different judicial systems or historical periods? How do certain forms and practices of humor respond, in different places and at different times, to the restrictions of the law? How might humor studies contribute to and illuminate the legal challenges posed by different forms of comic expression? How might humor, moreover, challenge the logics and procedures of law?

Although recent studies have stressed the benefits of collaboration between jurists and humor experts (Godioli 2020, Little 2019, Milner Davis and Roach Anleu 2018), the potential for interdisciplinary dialogue is still vastly unexplored. This special issue will investigate the intersection between humor and the law from various perspectives — we aim to promote diversity in terms of theoretical frameworks, historical and geographical contexts, judicial systems and legal issues addressed. We welcome full-length articles (approximately 8-10,000 words) which should consist of close readings of one specific example of an actual legal case concerning humor in any medium (including for instance literature, stand-up comedy, film, cartoons, or memes).

The special issue proposal has received preliminary interest from Law and Literature (Cardozo Law School). If you are interested in contributing, please send an email to humorandthelaw@gmail.com by 1 November 2020 including an abstract (ca. 250-500 words) and a short bio note (max. 200 words). The outcome of the selection process will be communicated within one month after the deadline. We are expecting completed contributions by Spring or Summer 2021.

Coronavirus note: The editorial team began planning this CFP before the outbreak of Covid-19 and thus under very different conditions and with very different expectations. As a result, we understand that many potential contributors might not be able to complete their articles by the proposed deadline. If, however, you are still interested in contributing, but perhaps along a revised timeline, you should be in contact with the editors (humorandthelaw@gmail.com); we are more than happy to offer flexibility to potential contributors.

Best wishes,
The organizing team:
Brigitte Adriaensen (Radboud University/Open University)
Andrew Bricker (Ghent University)
Alberto Godioli (University of Groningen)
Ted Laros (Open University)

Little, L. (2019). Guilty Pleasures: Comedy and Law in America. Oxford: Oxford University Press.
Milner Davis, J. and Roach Anleu, S. eds (2018). Judges, Judging and Humour. London: Palgrave Macmillan.

June 29, 2020

CFP: Special Issue: Posthuman Legalities: New Materialism and Law Beyond the Human

From Edward Elgar Publishing: CFP

Special Issue: 'Posthuman Legalities: New Materialism and Law Beyond the Human'
The Journal of Human Rights and the Environment (JHRE) warmly welcomes submissions for the upcoming Special Issue: 'Posthuman Legalities: New Materialism and Law Beyond the Human'. 
Contemporary pressures emerging from both climate change and the Covid-19 pandemic suggest the urgent need to move beyond the longstanding centrality to law of the human subject that acts upon ‘the world’ as object. Such juridical humanism is now clearly not only unsustainable and increasingly implausible, but profoundly dangerous to all life.

June 25, 2020

Patrick on Law and Evil: The Evolutionary Perspective (book review) @UCF

Carlton Patrick, University of Central Florida, has published Law and Evil: The Evolutionary Perspective, by Wojciech Zaluski at 3 Evolutionary Studies in Imaginative Culture 135 (2019) (book review). Here is the abstract.
How refreshing it is to see someone engage in a nose-to-tail approach to interdisciplinary work the way Wojceich ZaŁuski does in Law and Evil: The Evolutionary Perspective. In just 133 pages of text, including the Introduction and Epilogue, ZaŁuski successfully attempts to “reconstruct an evolutionary view of human nature and to examine through the prism of this view two legal-philosophical problems, viz. the problem of the (historical) evolution of law and the controversy between ius-naturalists (the adherents of natural law doctrine) and legal positivists.” This is a book that begins as a work of biology, morphs into legal history, and ends as philosophy, all the while using the insights of previous chapters to the lay the foundation for successive ones.
Download the review from SSRN at the link.

Shugerman on Removal by Judiciary and the Imaginary Unitary Executive @jedshug

Jed Handelsman Shugerman, Fordham Law School, has published The Decisions of 1789 Were Non-Unitary: Removal by Judiciary and the Imaginary Unitary Executive (Part II) as Fordham Law Legal Studies Research Paper No. 3597496. Here is the abstract.
Supporters of the unitary executive rely on “the Decision of 1789” to establish an originalist basis for presidential removal power at will. However, the first Congress’s legislative debates and a diary (missed by legal scholars) suggest strategic ambiguity and retreat on the constitutional questions, and the Treasury Act contradicted the unitary model. Here are seven overlooked moments from 1789 that dispel unitary assumptions: 1) The “decision” is premised on an ambiguous text and an indecisive unicameral legislative history. The switch from explicit power to a contingency clause was likely strategic ambiguity to get the bill passed in the Senate and to move forward on an urgent legislative agenda. House opponents called this move a retreat and questioned its integrity… 2) …and a Senator’s diary indicates the Senate sponsors, to win passage, denied the clause was important, disclaimed its constitutional meaning, and disavowed even the presidential power itself. A cryptic comment by a presidential House member hinted at this strategy. 3) Justices have erred in claiming that the first Congress decided officers served “at will.” Few members of Congress spoke in favor of presidential removal at pleasure in 1789. The first Congress gave such a low degree of protection to only two offices: marshals and deputy marshals. Meanwhile, in the Treasury debate, opponents of presidential removal power warned against presidential corruption and successfully deleted (without needing debate) a provision that the Treasury Secretary would “be removable at the pleasure of the President.” 4) A tale of two Roberts: two finance ministers, one English, one during the Articles of Confederation era, both scandalous. A reference by Madison during the Treasury debate provide context for independent checks, as opposed to a unitary hierarchy. 5) Judges and scholars have missed that Madison proposed that the Comptroller, similar to a judge, should have tenure “during good behavior.” Though Madison dropped this proposal, the debate reflected his more consistent support for congressional power and how little had been decided in the Foreign Affairs debate. 6) Most problematic for the unitary theory, the Treasury Act’s anti-corruption clause established removal by judges: Offenders “shall be deemed guilty of a high misdemeanor… and shall upon conviction be removed from Office.” The 1789 debates had focused on presidential corruption of finance, and this clause allowed relatively independent prosecutors and judges to check presidential power. Congress added similar judicial removal language to five other statutes between 1789 and 1791, and many more over the next 30 years. 7) These debates pilloried prerogative powers and discussed justiciability of for-cause removals in the English writ tradition, suggesting a larger role for Congress and the courts to investigate presidential power. For the powers cited by unitary theorists (the constitutional basis for presidential removal power, offices held “during pleasure”), the first Congress was, in fact, indecisive. On whether the president had exclusive removal power, the first Congress decisively answered no. If post-ratification history is relevant to constitutional meaning, the “Decision of 1789” presents more challenge than support for the unitary theory, with implications for Seila Law v. CFPB, independent agencies, independent prosecutors, the Trump subpoena cases, and justiciability.
Download the article from SSRN at the link. Part One is available here.

June 23, 2020

Post on How Taft Constructed the Epochal Opinion of Myers v. United States

Robert Post, Yale Law School, is publishing Tension in the Unitary Executive: How Taft Constructed the Epochal Opinion of Myers v. United States in the Journal of Supreme Court History (2020). Here is the abstract.
This article is excerpted from the forthcoming Volume X of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States, which covers the period 1921-1930 when William Howard Taft was Chief Justice. The article will be published in an upcoming issue of the Journal of Supreme Court History. The article offers for the first time a detailed account of the process by which William Howard Taft authored his pathbreaking opinion in Myers v. United States, the first Supreme Court decision ever to hold a statute of Congress unconstitutional because incompatible with Article II prerogatives of the President. The decision was six to three, featuring strong dissents by Brandeis, McReynolds, and Holmes. Using archival sources, the article discusses competing views within Taft’s majority coalition of six, as well as Taft’s own independent views about the question of the presidential power of removal. Analyzing the reasoning of Myers in detail, the article argues that the decision is neither an example of originalism, as Justice Antonin Scalia has claimed, nor is it compatible with contemporary understandings of the “unitary” executive.
Download the article from SSRN at the link.

Gouveia on Episopal Justice in a Time of Change: The Court of Portalegre, 1780-1835

Jaime Ricardo Gouveia, Universidade de Coimbra, has published Episcopal Justice in a Time of Change: The Court of Portalegre, 1780-1835 as Max Planck Institute for European Legal History Research Paper Series No. 2020-11. Here is the abstract.
This study examines the judicial activity of the Episcopal Court of Portalegre, based on a large number of cases, in the late eighteenth century and the first decades of the following century. It is a period of change, marked by a structural and tumultuous rupture of the paradigms of Roman Catholic Church authority, the power of bishops and the role of religion, triggered by Pombalism and established after the Portuguese Liberal Revolution of 1820. As the pastoral office was already strongly marked by the limitations imposed by secular power, it is particularly interesting to analyze the performance of this Portuguese Ecclesiastical Court in that historical context.
Download the article from SSRN at the link.

June 15, 2020

CFP: ASECS 2021 Annual Meeting @ASECSOffice

The American Society For Eighteenth-Century Studies announces its Call For Papers for its 2021 Annual Meeting, to be held in Toronto. Read the call here.

June 11, 2020

Rosen on The 1881 Trademark Act and the Supreme Court @zvisrosen

Zvi S. Rosen, George Washington University Law School, is publishing In the Shadow of the Trade-Mark Cases: The 1881 Trademark Act and the Supreme Court in Forgotten Comparative Intellectual Property Law (Edward Elgar, 2020). Here is the abstract.
In 1879, the US Supreme Court famously struck away federal trademark law in the TradeMark Cases, leading Congress to leap into action and pass a new trademark statute within two years. Much less famously, though, the same thing happened again 24 years later in a largely forgotten case, Warner v. Searle & Hereth, leading to the passage of the 1905 trademark law within two years. This is the story of how a commercial dispute between two early pharmaceutical companies led to the first American trademark law of the 20th Century.
Download the essay from SSRN at the link.

June 10, 2020

Call For Nominations: AALS Section on Women in Legal Education, 2021 RBG Lifetime Achievement Award

Call for Nominations for the AALS Section on Women in Legal Education

2021 Ruth Bader Ginsburg Lifetime Achievement Award

The AALS Section on Women in Legal Education is pleased to open nominations for its 2021 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), Phoebe Haddon (2019), and Robin West (2020). 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.  More than one person may nominate the same candidate; however, the number of nominations for any one nominee is not determinative of the winner.  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 2021 AALS Annual Meeting. 

Nominations will only be accepted by filling out this electronic form on or before the August 30, 2020 deadline.  (Also available by entering the following in your browser:  https://www.surveymonkey.com/r/JY6Y9LW.)

Should you have any difficulties completing the survey, please contact Victoria Haneman at:  VictoriaHaneman@creighton.edu.


Aimonetti on Colonial Virginia: The Intellectual Incubator of Judicial Review @JustinAimonetti @UVALaw

Justin W. Aimonetti, University of Virginia School of Law, has published Colonial Virginia: The Intellectual Incubator of Judicial Review at 106 Virginia Law Review 765 (2020). Here is the abstract.
What is the historical origin of judicial review in the United States? Although scholars have acknowledged that British imperial “disallowance” of colonial law was an influential antecedent, the extant historical scholarship devoted to the mechanics of disallowance is sparse. This limited exploration is surprising. Not unlike modern judicial review, the guiding question imperial overseers considered when disallowing colonial legislation was whether it was ‘repugnant’ to the laws of England. In response, this Note’s first contribution is to explain the process by which the so-called repugnancy principle was enforced against inferior colonial law. Even fewer scholars have attempted to connect the ultimate repugnancy assessment to the historical context surrounding disallowed colonial laws. This Note’s second contribution is thus to augment existing literature by exploring colonial Virginia’s specific experience under imperial supervision. Among the scholars that have explored the connection between colonial disallowance and the origins of judicial review, some have documented the link between imperial legislative review of colonial legislation and James Madison’s proposed constitutional solution to the problem of unrestrained state legislatures in the aftermath of independence. What remains to be explored, however, is how Madison explicitly drew on the history of imperial review of colonial Virginia’s laws as he argued at the Constitutional Convention for a federal power to “negative” state laws. Accordingly, this Note’s third contribution is to reveal that the historical practice of imperial review in Madison’s native Virginia animated his proposed solution to check the unrestrained popular will of state legislators. Although his proposed solution was ultimately rejected at the Convention, that rejection was conditioned on the judiciary possessing the power of judicial review. By exposing this hidden link, this Note demonstrates that colonial Virginia rightly may be regarded as the intellectual incubator of judicial review.
Download the article from SSRN at the link.

June 8, 2020

Simon-Kerr on Unmasking Demeanor @UConnLaw

Julia Ann Simon-Kerr, University of Connecticut School of Law, has published Unmasking Demeanor. Here is the abstract.
Demeanor is seen as a critical tool for assessing credibility in U.S. courtrooms. From the Confrontation Clause to the Immigration and Nationality Act to the Federal Rules of Civil Procedure to the common law of credibility, the U.S. legal system gives priority and deference to assessing demeanor in the courtroom. Evidence law instructs that we must see a witness’s whole face in order to effectively “read” demeanor. Yet, a growing number of jurisdictions will require all participants in the courtroom to wear masks covering the nose, mouth and chin in order to prevent the spread of COVID-19. This essay canvasses the legal impediments to mask-wearing by witnesses. It argues that these legal obstacles are surmountable, and that this mask-wearing moment offers a unique opportunity to reassess the role of demeanor in credibility assessments. Focusing on demeanor forces witnesses to perform credibility, a performance that does not necessarily bring us closer to the truth.
Download the article from SSRN at the link.

June 7, 2020

Call For Applications: Visiting Fellows 2021, Institute for Interdisciplinary Legal Studies

Institute for Interdisciplinary Legal Studies – lucernaiuris
Call for Applications: Visiting Fellows 2021
The Institute for Interdisciplinary Legal Studies – lucernaiuris at the University of Lucerne invites applications for our Visiting Fellows Programme 2021.

The fellowship programme is set up to support junior scholars (PhD students and postdocs) who wish to undertake a short-term research stay at the institute. The scheme is open to all working broadly on interdisciplinary topics at the intersections between law, the humanities and the social sciences. Focusing on critical and theoretical approaches, the institute aims to bring together a diverse group of scholars who read and think widely across fields, contexts and disciplines.

We particularly welcome applications from those working on projects that connect with our own core interests. Currently, these include:
ž  Legal Futures and Futurity
  • Law and New Technologies
  • Law and the Life Sciences
  • Theories of Justice and Histories of the Judiciary
  • Law, Art and Politics

The deadline for submissions is Wednesday 30 September 2020. Further details on eligibility, application and evaluation procedures are available here.
For informal enquiries, please contact Dr. Steven Howe (steven.howe@unilu.ch)

June 3, 2020

Nielsen on Literary Form and Limited Liability: It-Narratives and the Context of Corporate Law in the British Public Sphere, 1860-1880

Jakob Gaardbo Nielsen has published Literary form and limited liability: it-narratives and the context of corporate law in the British public sphere, 1860–1880, in Context in Literary and Cultural Studies. Here is the abstract.
‘What philosopher can explain to me the nature of the causes of which I am the vile effect?’ Laurence Oliphant. ‘Autobiography of a Joint-Stock Company (Limited)’. 1876. Since the 2008 financial crisis, it has become common to imagine corporate and financial bodies as autonomous or even cognisant entities. The concept of ‘corporate personhood’, the idea that companies, as ‘artificial persons’, are, in fact, legal subjects separate from the humans who form them, underscores this metaphorical autonomy, even if it remains a somewhat controversial concept in corporate law. The legal definition of a company as a ‘corporate person’ is useful insofar as it safeguards individuals from personal liability and thus facilitates investment, but it also sits uneasily with ethical and legal concerns about corporate responsibility. As a legal concept, as well as a cultural metaphor, corporate personhood also mediates a fantasy of containment – a fantasy of a separate and autonomous place known as ‘the financial sector’ in which the business of trade takes place according to obscure rules and conducted by experts who are functionally if not ethically ‘in the know’. Even so, incorporation is a lot less controversial today than it used to be. In the late nineteenth century, when incorporation was deregulated and gradually became a common form of business organisation, the idea of a corporate person was still highly controversial and gave rise to an inflamed ethical and political discussion about corporate responsibility. The debate took place in several discourses but became particularly nuanced in fiction, where the abstractions of high finance could be interpreted, questioned, and concretised by the narrative and rhetorical devices of imaginative writing. In this article, I shall focus on the late Victorian period, when rapid financial development afforded new and controversial ways of making money in corporate enterprise. One of the most controversial developments, propagated by deregulatory legislation in the 1840s and 1850s, was the increased availability of company incorporation and the extension of ‘limited liability’ privileges to smaller and smaller private companies. Corporate personhood was a highly controversial topic (economically, politically and ethically) in the 1870s and sparked debates across the public sphere. In this context, narrative fiction, I shall argue, played a key part in negotiating the ethics of these new financial institutions. Literary discourse was able to shed light on the concrete influences of changing economic structures on social and interpersonal experience – to displace finance from its rhetorical obscurity and resituate it in a domain of cultural and aesthetic visibility. Literary devices such as anthro-pomorphism, narrative form, and prosopopoeia helped common readers understand how corporate finance worked, paradoxically enough by representing companies as fundamentally uncanny or contradictory entities. More specifically, I shall analyse the relationship between the new developments in corporate law and a contemporary literary text that built its internal structure directly on this logic of corporate organisation. In his short fictional essay from 1876, ‘Autobiography of a Joint Stock Company (Limited)’, Laurence Oliphant lets a joint stock company be the narrator of its own biography, thus giving narrative authority to an abstract, immaterial financial entity. This anthropomorphic perspective, typical of object tales or ‘it-narratives’, dramatises the issue of corporate ‘personhood’ in a highly specialised and direct way. Oliphant’s text is entangled, formally as well as contextually, in its historical moment and gives literary form to a discussion about incorporation and liability that was not possible in the financial press, in political economy, or even in novels – a form that engages formally with the economic context in question. In this article, I aim to demonstrate that Oliphant’s text offers a unique take on the public debate about joint stock companies in the 1870s. The formal nature of its intervention in an economic context puts it within something of a blind spot in the field of literary studies of economics and finance, which has been predominantly organised around studies of the realist novel.1 It draws on different generic structures – differently orientated connections between writer, text, audience and context – that are difficult to reconcile with either formalist or historicist methodologies and thus, I argue, calls for an analysis based on an extended concept of form. In the first section, I briefly introduce the field of literary studies of finance and argue for an expansion of its traditional empirical horizon to include, on a more consistent basis, financial it-narratives. In the second section, I briefly flesh out the specific aspects of late Victorian corporate law which relate to corporate personhood. In the third section, I analyse Oliphant’s text with an emphasis on the nature of its engagement with this financial context. In the fourth, fifth and concluding sixth section, I discuss these insights by reflecting historiographically on the use of the ‘context concept’ in the field and, referring to recent scholarly works on form, suggest a methodological reorientation towards the historicity of economic and aesthetic forms.

June 2, 2020

Conklin on The Extremes of Rap on Trial: An Analysis of the Movement to Ban Rap Lyrics as Evidence (Book Review) @AngeloState

Michael Conklin, Angelo State University, has published The Extremes of Rap on Trial: An Analysis of the Movement to Ban Rap Lyrics as Evidence, at 95 Indiana L. J. The Supplement 1 (2020). Here is the abstract.
This Article is a review of Rap on Trial: Race, Lyrics, and Guilt in America. The book largely focuses on the dangers of allowing rap lyrics to be presented as evidence in criminal trials. The authors posit that the fictitious and hyperbolic nature of rap lyrics are misrepresented by prosecutors as autobiographical confessions that document illegal activity and violent character traits of defendants. The authors compare rap to other musical genres and conclude that racism is the underlying cause for why the genres are treated differently in court. The authors also advocate for evidence nullification and argue for a complete ban on all rap-related evidence at trial. This Article assesses both the strengths and weaknesses of the evidence presented to support these claims. Furthermore, this Article discusses pragmatic issues such as how the author’s advocacy for their more extreme proposals may be counterproductive to enacting their more reasonable proposals.
Download the article from SSRN at the link.

May 29, 2020

West and Lithwick on The Paradox of Justice John Paul Stevens @sonjarwest @Dahlialithwick

Sonja West, University of Georgia School of Law, and Dahlia Lithwick are publishing The Paradox of Justice John Paul Stevens in volume 114 of the Northwestern University Law Review (2020). Here is the abstract.
In the days following Justice John Paul Stevens’s death last year, numerous tributes and remembrances immediately poured forth. Former clerks, journalists, and legal scholars all grasped for the perfect words to capture the man and the justice we had just lost. Yet many readers of these tributes and homages might have begun to wonder whether they were actually all talking about the same person. Because, taken together, the various portraits appeared to be full of contradictions. In one piece, for example, Justice Stevens is described as a frequent lone dissenter, while in another he is praised for his consensusbuilding leadership. For every tribute depicting him as a moderate around whom the Court shifted rightward, there seemed to be another painting him as a jurist who drifted leftward. He was a Republican yet also a liberal giant. He was deeply patriotic, while also a sharp critic of governmental institutions. So who was the real Justice Stevens? How can we possibly be expected to understand his legacy if we can’t even agree on the basic characteristics he embodied? Which of these portraits is correct? The answer is that they all are. If Justice Stevens were a multiple-choice test, the right answer to pretty much every question would likely be “all of the above.” He was, in so many ways and at so many times, both a thing and also the opposite of that thing. And the secret to understanding Justice Stevens’s legacy is to appreciate how his seemingly paradoxical nature was, in fact, his greatest strength.
Download the article from SSRN at the link.

May 27, 2020

Fletcher on Anishinaabe Law and The Round House @MSULaw

Matthew L. M. Fletcher, Michigan State University College of Law, has published Anishinaabe Law and The Round House at 10 Albany Government Law Review 88 (2017). Here is the abstract.
This paper addresses the Indian country criminal justice system’s difficulties through the context of the Great Lakes Anishinaabeg’s traditional customs, traditions, and laws, and their modern treatment of crime. Louise Erdrich’s The Round House expertly captures the reality of crime and fear of crime in Anishinaabe Indian country, and offers a bleak view of the future of criminal justice absent serious reform in the near future.
Download the article from SSRN at the link or here from the journal's website.

May 26, 2020

Call For Concurrent Panel and Paper Proposals: 2020 Annual Meeting of the American Society of Comparative Law Online Meeting

New Updated Call for Concurrent Panel and Paper Proposals

2020 Annual Meeting of the American Society of Comparative Law
Online Meeting

October 15-16, 2020

The American Society of Comparative Law, the leading organization in the United States promoting the comparative study of law, invites all interested scholars, practitioners and advanced degree students to consider submitting a panel or a paper proposal for the upcoming Annual Meeting of the American Society of Comparative Law entitled Comparative Legal History that will be held online between Thursday, October 15, and Friday, October 16, 2020. This meeting, which was to be held at Boston University on Oct. 15-Oct. 17, will now take place online on the Zoom meeting platform on Oct. 15-Oct. 16. This decision was made in consideration of various difficulties caused by the current Covid-19 pandemic.

Comparative historical analysis is part of a long-standing tradition, prominent in political science, economics, and anthropology. Indeed, among the most influential social scientists of all time one finds a large number of scholars who have used the comparative-historical method. Legal scholars have also relied extensively on comparative historical analysis, producing a body of research that is impressive in depth and scope. However, there has been little dialogue between comparative law experts and historians. More generally, a systematic discussion of the methods and goals of comparative legal history is virtually absent. This omission is unfortunate because comparative historical analysis provides tools that are critical to the understanding of legal institutions and legal change. The comparison of legal ideas and institutions across time and space promises three distinctive benefits. First, comparative legal history has explanatory value, illuminating causal connections. Further, comparative legal history helps de-naturalize existing legal institutions. Finally, comparative legal history fosters legal innovation, delivering instructive and sometimes applicable lessons about the analytics of law or its implementation.
The Annual Meeting of the ASCL will have time slots for concurrent panels on Thursday, October 15, and/or Friday, October 16, 2020. Proposals will be considered on a variety of subjects on comparative legal history. The concurrent panels may also be on any comparative law topic even if different from the main topic of the 2020 Annual Meeting on comparative legal history and, as a way to foster multilingualism at the ASCL, may also be held in languages other than English.

The Annual Meeting Program Committee of the American Society of Comparative Law will select the panels that will be held at the meeting in consultation with Boston University School of Law. Panel proposals should include up to four speakers, a panel title, and a one-to-two-paragraph description of the ideas that the panel will explore. Due to the change to an online venue, we have changed the deadline for submissions. Panel and paper proposals should be submitted via e-mail to Thomas Price at ASCLannualmeeting@law.ucla.edu
on or before July 15, 2020. Decisions regarding accepted panels will be made by the middle of August 2020.

Any questions about the paper or panel proposals should be addressed to Thomas Price at ASCLannualmeeting@law.ucla.edu.

May 22, 2020

Asgerisson on Authority, Communication, and Legal Content @hartpublishing

Hrafn Asgerisson, University of Surrey School of Law, is publishing Authority, Communication, and Legal Content in The Nature and Value of Vagueness in the Law (Oxford: Hart Publishing, 2020). Here is the abstract.
Sample chapter from H. Asgeirsson, The Nature and Value of Vagueness in the Law (Hart Publishing, 2020), in which I present and partially defend a version of what has come to be called the communicative-content theory of law. Book abstract: Lawmaking is – paradigmatically – a type of speech act: people make law by saying things. It is natural to think, therefore, that the content of the law is determined by what lawmakers communicate. However, what they communicate is sometimes vague and, even when it is clear, the content itself is sometimes vague. The monograph examines the nature and consequences of these two linguistic sources of indeterminacy in the law with the aim of providing plausible answers to three related questions: In virtue of what is the law vague? What might be good about vague law? How should courts resolve cases of vagueness?
Download the chapter from SSRN at the link.

Schauer on Social Science and the Philosophy of Law @UVALaw

Frederick Schauer, University of Virginia School of Law, is publishing Social Science and the Philosophy of Law in Cambridge Companion to the Philosophy of Law (John Tasioulas, ed., Cambridge, 2020). Here is the abstract.
H.L.A. Hart’s description of his jurisprudential enterprise as an exercise in “descriptive sociology” raises important questions, questions going beyond Hartian exegesis, about the role of empirical social science in addressing jurisprudential questions. This entry focuses on the background empirical assumptions and conclusions in Hart’s own work, on the empirical dimensions of conceptual analysis, on the empirical challenges of legal pluralism, and on the empirical aspects of philosophical analysis of legal reasoning and legal compliance.
Download the essay from SSRN at the link.

May 21, 2020

Perry on Law's Boundaries

Adam Perry, University of Oxford Faculty of Law, is publishing Law's Boundaries in Legal Theory. Here is the abstract.
The norms of a legal system are relevant in deciding on what rights and duties people have within that system. But many norms which are not part of a legal system will also be relevant within it. These other norms may include the norms of foreign legal systems, games, clubs, contracts, grammar, arithmetic, unions, universities, and so on. What distinguishes norms which are part of a legal system (“local norms”) from norms merely relevant within it (“adopted norms”)? Where, in other words, are the law’s boundaries? There are three main answers in the literature. Matthew Kramer claims that adopted norms are under the control of non-local actors, whereas local norms are not. Scott Shapiro flips that idea on its head. Adopted norms are not created through the exercise of local powers, he says, whereas local norms are. Joseph Raz, meanwhile, distinguishes adopted and local norms based on the reasons officials have for relying on them. But there are obvious counterexamples to each of these answers. My own answer draws on a distinction in constitutional scholarship between direct and indirect relevance. Roughly, directly relevant norms suffice for some conclusion about people’s rights and duties. Indirectly relevant norms bear on the interpretation, applicability, or exact consequences of other norms. Whereas local norms are directly relevant, adopted norms are merely indirectly relevant. Thus, what distinguishes the two types of norms is the directness of their legal relevance. I conclude by showing that it makes a significant practical difference on which side of the boundary a norm falls.
Download the article from SSRN at the link.

Pozen and Samaha on Anti-Modalities @michlawreview

David Pozen, Columbia University Law School, and Adam M. Samaha, New York University School of Law, are publishing Anti-Modalities in the Michigan Law Review. Here is the abstract.
Constitutional argument runs on the rails of “modalities.” These are the accepted categories of reasoning used to make claims about the content of supreme law. Some of the modalities, such as ethical and prudential arguments, seem strikingly open-ended at first sight. Their contours come into clearer view, however, when we attend to the kinds of claims that are not made by constitutional interpreters — the analytical and rhetorical moves that are familiar in debates over public policy and political morality but are considered out of bounds in debates over constitutional meaning. In this Article, we seek to identify the “anti-modalities” of constitutional law and to investigate their implications. The anti-modalities both stabilize and undermine the modalities. On the one hand, they work in tandem to ensure that constitutional interpretation remains a distinctive legal enterprise. The two argument bundles are in this sense mutually reinforcing, even co-constitutive. On the other hand, by ruling out various important categories of reasoning — from general moral theory to emotional judgment to many cost-benefit calculations — the anti-modalities put continuous pressure on the modalities to accommodate such reasoning in adulterated forms, or else insist on a long distance between the inputs into supreme law and the concerns that most people care about. We call this distance constitutional law’s “resonance gap.” Such a gap arises in all areas of law, but it is especially pronounced in the constitutional realm. Although the anti-modalities play a critical role in preserving the law/politics distinction, they have deleterious consequences for each side of that line. The best response, this Article suggests, is not necessarily to narrow the resonance gap but rather to narrow the domain of constitutional law. If constitutional argument must exclude (or purport to exclude) vital modes of reasoning, we might worry less about refining its grammar and more about restricting its reach.
Download the article from SSRN at the link.

May 20, 2020

ICYMI: Emerson on An Ode to the Missive-Writer of the Law Review Rejection

ICYMI: Warren Emerson, Savannah Law School, has published An Ode to the Missive-Writer of the Law Review Rejection. Here is the abstract.
Law and rejection go hand in hand. Litigators must explain to their clients why a claim failed and transaction attorneys describe why a deal fell through. Communicating failure has become a trade par excellence in the study of law. This short piece suggests that the rhetorical tradition of the love sonnet may be helpful in unpacking the mechanics of how communicating legal rejections can be improved. Drawing on exhaustive empirical study of the author’s personal law review rejection letter, for which the author has many, this short piece provides a detailed study of human cognitive emotions at the intersection of labor-based rejection.
Download the essay from SSRN at the link.

Now Available: di Micco, Filho, and Magri, Circolazione, cessione, riciclaggio. Alcuni profili giuridici dell’arte e del suo mercato (Università degli Studi di Torino, 2020)

Newly published:

Domenico di Micco, Marcilio Franca Filho, e Geo Magri, Circolazione, cessione, riciclaggio. Alcuni profili giuridici dell’arte e del suo mercato (Università degli Studi di Torino, 2020) (Quaderni del Dipartimento di Giurisprudenza) Here is a description of the contents (in Italian).
Nella fluidità dello spazio globale, venuti meno i tratti classici delle dinamiche economiche, oggi più che mai l’arte si riscopre oggetto e soggetto del mercato. Così, i problemi legati alla peculiarità della sua circolazione, al suo essere un potenziale strumento nelle complesse dinamiche del riciclaggio internazionale nonché la previsione di specifici strumenti legislativi per incoraggiare la sua acquisizione da parte dei soggetti pubblici senza ricorrere alla mediazione del mercato, costituiscono di fatto un interessante “banco di prova” per il diritto e uno stimolante campo d’indagine per il giurista.
Full text available at the link.

Repost: Through a Glass Darkly: European History and Politics in Contemporary Crime Narratives: Proposals Due By May 31, 2020

Deadline Approaching: Proposals Due By May 31, 2020

Through a Glass Darkly: 
European History and Politics in Contemporary Crime Narratives
Monica Dall’Asta, Jacques Migozzi, Federico Pagello, Andrew Pepper eds.

To talk about the crime genre—as opposed to detective or spy or noir fiction—is to recognise the comprehensiveness of a category that speaks to and contains multiple sub-genres and forms (Ascari, 2007). In this volume, we want to uncover the ways in which the crime genre, in all of its multiple guises, forms and media/transmedia developments, has investigated and interrogated the concealed histories and political underpinnings of national and supranational societies and institutions in Europe, particularly after the fall of the Berlin Wall in 1989.
Two most popular expression of the crime genre, the detective novel and the spy novel, have long been identified as ‘sociological’ in their orientation (Boltanski, 2012). These forms often tackle enigmas or uncover conspiracies that are concealed by and within states, asking searching questions about the failures of democracy and the national and international criminal justice systems to deliver just societies. Similarly, following the example of U.S. hard-boiled fiction, the ‘noir’ variant of the genre has also established itself as a ‘literature of crisis’ (according to Jean-Patrick Manchette’s formula), where the shredding of official truths and of ‘reality’ itself ends up revealing dark political motives that elicit an even starker set of ethical and affective interrogations (Neveu, 2004). While the obvious links between the ‘noir’ and the ‘hard-boiled’ traditions of crime fiction (e.g. between Manchette and Hammett) suggest an American-French or trans-Atlantic connection, we are keen to stress that the sociological and political orientation of the European crime genre—especially since 1989 and the corresponding opening up of national borders and markets—requires examining both global/glocal and multi-national (and state-bound) issues and challenges. It is here that the European dimension of the proposed volume is best articulated because, to do justice to this context, we need to pay attention not just to discreet national traditions, but the ways in which contemporary iterations of the genre interrogate the workings of policing, law, criminality and justice across borders and nations (Pepper and Schmid, 2016).

The transnational framework of the DETECt project (Detecting Transcultural Identities in Popular European Crime Narratives) is necessarily and acutely concerned with civic and ethical issues linked to the construction of new European new identities. The proposed volume aims to explore the ways in which these new identities are formulated and thematised in European crime novels, films or TV series, particularly in relation to the interrogations raised by the uncovering of hidden aspects of both the historical past and the contemporary political landscapes. Contributions are encouraged which look at particular case studies or identify larger national and/or transnational trends or synthesise the relationship between individual texts and these larger trends. It is envisaged that the volume will be organised into the three sections outlined below. Prospective contributors are invited to identify where their articles might sit within this structure as well as to outline the particular focus adopted by their essay in relation to the general topic. The list of topics in each section is to be regarded as indicative rather than exhaustive. 

1. Crime Narratives and the History of Europe
European crime narratives from the last thirty years have frequently referred to collective traumas and conflicts that have torn European societies apart throughout the 20th century. Contributions are invited that look at the ways in which these fictional works have restaged and critically reinterpreted some of the most tragic pages in European recent history, including (but not limited to) the following iterations of violent rupture and social breakdown:
- The Civil War and Francoist dictatorship in Spanish crime narratives (e.g. Montalbán, La isla minima);
- Fascism, surveillance and the police-state (e.g. Lucarelli, Gori, De Giovanni) and the role of oppositional memory (e.g. Morchio, Dazieri) in Italian detective fiction; 
- Fascistic/right-wing nationalist movements in interwar Scandinavia (e.g. Larsson, Mankell);
- The Third Reich as the historical biotope of crime fiction (e.g. Kerr, Gilbers);
- The constant presence of wars as a breeding ground for crime in French crime novels: World War I and II, collaboration, the Algerian War, colonisation, post-colonisation (e.g. Daeninckx, Férey);
- The heavy presence of Cold War images and axiology in spy novels and films, including those appeared after the fall of the Berlin Wall, both in Western and Eastern Europe (e.g. Kondor, Furst);
- The ‘Troubles’ in Irish and British crime fiction (e.g. Peace, McNamee).

2. Crime Narratives and the Present of Europe
Our present time is characterized by a number of social, political, financial/economic crises that threaten the construction of a cosmopolitan pan-European identity in line with the EU’s founding ideals. Crime narratives attempt to offer realistic representations of such contemporary crises by putting in place a number of ‘chronotopes’ that symbolise social divisions and peripheral and marginalized identities. We encourage essays that examine the ways in which post-1989 European crime narratives have represented the emergence of nationalisms, xenophobia, racism and other threats to the social cohesiveness of European democracies. We also invite contributions that use the trope of the crisis to explore how the links between crime, business and politics have polluted or corrupted the democratic imperatives of European social democracies and institutions from the outset. Topics might include:  
- The Kosovo War, and more broadly the Balkan conflicts of the 1990s, as the first signs of a generalised geopolitical chaos (e.g. in French noir novels);
- The financial crisis of 2008 and its devastating consequences for individuals, communities and whole societies (e.g. Bruen and French in Ireland; Markaris in Greece; Dahl in Sweden; Lemaître in France);
- The migrant crisis (within and outside the EU) and the emergence of new anxieties about belonging and/or otherness (e.g. Mankell, Dolan, Rankin);
- Climate change, pollution, and environmental destruction (e.g. Tuomainen, Pulixi);
- The blurring of crime and capitalism and the depiction of crime as a form of social protest vis-à-vis the effects of global capitalism and neoliberal deregulation and privatisation (e.g. Manotti, Carlotto, Heinichen, the TV series Bron);
- Inquiries into the effects of contemporary forms of patriarchy, gendered violence and misogyny and their links to other forms of oppression and domination (e.g. Lemaître, Slimani, Macintosh, Gimenez-Bartlett Larsson, McDermid).

3. Crime Narratives and the Future of Europe 
European crime narratives explore a broad range of social and cultural identities across different scales: from the more stable identities attached to local contexts through the new mobile, precarious and mutating identities fostered by the dynamics of globalization. This section will look into how these different identities and their complex interplay can suggest ways to frame the future of Europe. Contributions could address how crime narratives try to make sense of the complex, if yet perhaps contradictory, set of representations circulating across different European public spaces and collective imaginaries. On the one hand, we might ask whether something like a European crime genre even actually exists, given that these works typically demonstrate suspicions about ‘outsiders’ and only rarely offer positive representations of post-national transcultural identities. On the other hand, however, the genre does give us glimpses into what might be achieved through cross-border policing initiatives, organised under or by Interpol and Europol, in the face of organised crime gangs involved in transnational smuggling and trafficking networking. Contributions to this final section are encouraged to reflect upon how crime narratives produced by and in between the discreet nation-states frame the hopes and limits of European cohesiveness and the continent’s future or futures. Essays could focus on one or more of the following topics:
- The interplay between local, regional, national and transnational identities as represented through specific narrative tropes, such as in particular the local police station, the interrogation room, the frontier or border, and so on;
- The connection between social deprivation at the local end of the geopolitical scale and different global systems and networks at the other end;
- The role of borders, cities, violence, rebellion, policing and surveillance in producing new identities and subjectivities not wholly anchored in discreet nation-states. Attention could also be given to formal innovations insofar as these allow or enable the expression of new identities;
- The hope and consolation offered by the resilient community or village (Broadchurch, Shetland) or the extended family (Markaris’s Kostas Charistos series) in the face of the messy, brutal contingencies of a world ruled by criminal and business elites; 
- Social banditry as a form of contestation directed against social inequalities produced by capitalism (Carlotto’s Alligator series; La casa de papel). 

If you are interested in submitting a proposal to be considered for inclusion in this volume, please send an abstract of no more than 300 words and a short biography to info@detect-project.eu by May 31, 2020. We would encourage you to identify the section of the proposed volume where your essay would be best situated. We are looking to commission up to 14 essays in total of 7000 words each including footnotes and bibliographic references.