May 11, 2021

Baker and Green on the Non-Existence of a "Legal Name" @j_remy_green @AustinACBaker @HRLROnline

Austin A. Baker, Rutgers University, New Brunswick, and J. Remy Green, Cohen & Green, P.L.L.C.; Boston University School of Law, are publishing There is No Such Thing As a 'Legal Name': A Strange, Shared Delusion in volume 53 of the Columbia Human Rights Law Review (2021). Here is the abstract.
As far as federal, most state, and any other source of American law is concerned — as several courts in the early 20th Century put it: there is no such thing as a legal name. Yet, the phrase “legal name” appears everywhere, often beside threats of the penalties of perjury if you give something other than your legal name. For example, transgender people often hear “well, this has to say your ‘Legal Name,’” as an explanation for why they must be referred to by their deadname. One would assume, given the widespread use, surely must be a clear, unambiguous name that constitutes a person’s “legal name” — as well as “legal” reasons an organization insists on using that name, right? Well. Not so much. Thus, this Article seeks to highlight the (legal, moral, and philosophical) wrongness of that notion. We begin by explaining the practical significance of this mistake (the mistake being something like, “legal name means XYZ and only XYZ,” where “XYZ” means “name on [usually one and only one of: birth certificate/social security card/driver’s license/name change order]”). Then, we survey the “legal” status of names in various legal domains, highlighting that legal consensus tends to be that there is no one “correct legal name” for individuals (if anything, people often have many “legal” names). We then frame the wrongheaded notion that a person has a single clearly defined “legal name” as a harmful, collective delusion. So how do we rid ourselves of this delusion? We present a series of ready-to-cite conclusions about the current state of the law and introduce a normative framework for how institutions and individuals ought to choose between people’s various legal names when referring to them. Specifically, we introduce what we call the ‘Preference Norm’, according to we should defer to the legal name someone prefers absent some existent superseding legal reason not to. We argue that violating this norm in many cases constitutes a gross violation of someone’s dignity. We conclude by proposing a series of concrete legal suggestions which are meant capture the spirit of the Preference Norm.
Download the article from SSRN at the link.

Kelly-Ann Couzens on The Police Surgeon in Victorian Edinburgh: A Talk on May 21, 2021@ThomGiddens

From Jennifer Aston, University of Northumbria, an announcement of a very interesting talk:
On 21st May at 11am the Law and Humanities RIG is hosting a talk by Dr Kelly-Ann Couzens discussing the historical role of the police surgeon. The abstract is attached. Kelly’s work is fascinating and she always tells a good story so even if historical research is not your bag it is worth coming along to learn more about the history of this little appreciated official. Kelly’s talk is entitled:
 
‘The office is not a very popular one, and its duties are often disgusting’:
The Police Surgeon in Victorian Edinburgh
 
 
Dr Kelly-Ann Couzens is an Australian-born scholar, specialising in British legal and medical history. Most recently, Kelly has been working as a Postdoctoral Research Fellow in the School of Law at the University in Edinburgh. In 2019 she graduated with a PhD in history from the University of Western Australia and is currently writing her first book - The Victorian Police Surgeon: A History of Crime and Forensic Medicine - for Palgrave.
 
The talk will be hosted on Blackboard Collaborate. Here is the link.
 
https://eu.bbcollab.com/guest/0d2d60c529174da39052bdf46a9069b9
 Here is the abstract of Dr. Couzens' talk.
‘The office is not a very popular one, and its duties are often disgusting’:
The Police Surgeon in Victorian Edinburgh
 
*Dr Kelly-Ann Couzens, Adjunct Research Fellow, Department of History, University of Western Australia
 

Read her essay, "The Police Surgeon, Medico-Legal Networks and Criminal Investigation in Victorian Scotland," in Crime and the Construction of Forensic Objectivity from 1850 (Alison Adam, ed. Springer, 2020), at 125-159.

Despite the ever-growing body of scholarship chronicling the history of forensic medicine within Anglo-American justice systems, the role of the police surgeon – as expert witness – remains largely neglected by historians. This is particularly surprising, given the diverse duties this doctor was tasked with during the Victorian era. For as well as being required to attend to the proper health and fitness of local police forces, the surgeon of police was often the first medical practitioner to make contact with victims and perpetrators in the aftermath of a violent crime. Working alongside local officials and law enforcement and empowered to inspect and certify cases of suspicious injury, sexual assault, death and insanity, the police surgeon held a unique position within the complex system of Scottish criminal justice. Nowhere is this better seen, than in the forensic career of surgeon, Sir Henry Duncan Littlejohn. For over five decades, Littlejohn laboured at the coalface of Victorian forensic medicine, whilst employed as Edinburgh city’s surgeon of police. From his appointment to the role in 1854, to the close of his forensic career in 1908, Littlejohn testified as an expert witness in hundreds of cases within Scotland’s inferior and higher courts. While the close of the Victorian era would see him emerge as a giant of the Scottish medical profession, Littlejohn’s path to recognition and success had been arduous. The bloody, corporeal, and taxing nature of forensic work left the police surgeon poorly regarded by his medical brethren. Moreover, as an employee of the city council who was intimately associated with the reputation and practices of the Edinburgh police, the conduct of the police surgeon was not exempt from public scrutiny. Yet as an intelligent, ambitious, and canny practitioner, Littlejohn was able to use this unpopular office to his professional advantage. Through this public-facing position, and regular involvement in diverse forensic matters, Littlejohn established a robust and distinctive footing in the civic, legal, and medical hierarchies of nineteenth and twentieth-century Edinburgh.


H/T 

May 8, 2021

Hadley on Whitmill v. Warner Bros. and the Visibility of Cultural Appropriation Claims in Copyright Law @DrMarie_IP @uonlawschool

Marie Hadley, Newcastle Law School, University of Newcastle (Australia), has published Whitmill v Warner Bros. and the Visibility of Cultural Appropriation Claims in Copyright Law at 42 European Intellectual Property Review 223-229 (2020). Here is the abstract.
The Māori-inspired tattoo at the heart of the copyright infringement case of Whitmill v Warner Bros. has attracted allegations of cultural appropriation in Aotearoa/New Zealand. An examination of the Māori cultural appropriation claim that surrounds the tattoo and its invisibility throughout the Whitmill v Warner Bros. legal proceedings, shows how the legal system does not receive Indigenous cultural claims over the cultural imagery and arts styles that inspires outsider imagery as an intellectual property interest.
Download the article from SSRN at the link.

May 6, 2021

Stern on Biographical Evidence and the Law of Presumptions @ArsScripta @StanfordLawHist @J19Americanists @HedgehogsFoxes @ProjectMUSE

Simon Stern, University of Toronto, has published Biographical Evidence and the Law of Presumptions, at 9 J19: The Journal of Nineteenth-Century Americanists 83-89 (2021). Here is the abstract.
The rules and history of evidence law can provide useful resources for understanding the role of biographical evidence in literary criticism. During the nineteenth century, as evidence law became increasingly formalized, presumptions acquired a newfound significance as a device for allocating the burden of proof in evidentiary disputes. Presumptions generally operate by stipulating a legal conclusion that flows from a certain factual premise, such that the conclusion remains dispositive unless the opposing party offers witnesses or documents that contradict it. The result is a burden-shifting procedure that licenses a generic inference, assumed to flow from a factual premise but capable of being rebutted by specific details to the contrary. Literary critics often use biographical evidence in a similar fashion: in the absence of concrete information about a writer's beliefs or experiences, critics use some kinds of generic biographical information to draw inferences about the attitudes that someone with a certain background would have held. When more specific biographical details become available, they are used to confirm, refine, or contradict those inferences. Unlike lawyers, however, literary critics tend to use biographical information of all kinds—both generic and specific—to raise new inferences rather than to resolve questions definitively.

Bandes on Feeling and Thinking Like a Lawyer: Cognition, Emotion, and the Practice and Progress of Law @BandesSusan @DePaulLaw @FordhamLRev

Susan A. Bandes, DePaul University College of Law, is publishing Feeling and Thinking Like a Lawyer: Cognition, Emotion, and the Practice and Progress of Law in volume 89 of the Fordham Law Review (2021). Here is the abstract.
Generations of lawyers have been taught that thinking like a lawyer requires putting emotion aside. They are warned, for example, that anger will blind them to the facts as they really are. Yet cognitive science rejects the notion that emotion and reason are autonomous, warring spheres. Recently there has been increasing recognition of the harmful consequences of the narrow conception of “thinking like a lawyer” to lawyers’ well-being, but these consequences are generally portrayed as a necessary trade-off between the well-being of lawyers and the preservation of analytical rigor. This Essay will argue that the harm the narrow conception of “thinking like a lawyer” poses to lawyers’ well-being is not simply an ancillary issue or an unfortunate but necessary collateral consequence of engaging in rigorous, logical thinking. A conception of law that attempts to cordon off emotion is poorly suited to the complexities of legal practice and is inconsistent with modern knowledge about how legal, ethical, and moral reasoning—and indeed, legal change and reform—actually occur. This Essay will focus in particular on the emotion of anger and the consequences of attempting to banish it from the realm of legal reasoning.
Download the article from SSRN at the link.

May 5, 2021

Pollard on Some Oddities of the Law on Age: So You Thought You Reached 21 on Your 21st Birthday? @WilberforceCh

David Pollard, Wilberforce Chambers, has published Some Oddities of the Law on Age: So You Thought You Reached Age 21 on Your 21st Birthday? at 34 Trust Law International 21 (2020). Here is the abstract.
It can be very important to work out for legal purposes precisely how old someone is - what age have they reached? This paper looks at oddities in the law in England and Wales, contrasting the old common law position before the Family Law Reform Act 1969 took effect. This article looks at the history and some of the remaining nooks and crannies in this area, including:

 

● If a person is born on 29 February in a leap year, when is their birthday?

 

● What happens if a person is in a different time zone on his or her birthday? Do they reach the relevant age earlier (or later) than they would in the UK?

 

A story involving:

 

● a death in the first world war;

 

● theft of false teeth;

 

● a rear admiral serving his commutation notice a day before his birthday;

 

● The Pirates of Penzance;

 

● soldiers in Hong Kong; and

 

● a widow arguing that she had reached age 55 when her husband died (on the day before her birthday) because she was born early in the morning in the Philippines.
Download the article from SSRN at the link.

May 4, 2021

Means on Solving the "King Lear Problem" @UofSCLaw

Benajmin Means, University of South Carolina School of Law, is publishing Solving the 'King Lear Problem' in volume 12 of the U.C. Irvine L. Rev. Here is the abstract.
In Shakespeare’s play, King Lear, an aging ruler relinquished control to two of his three daughters. The succession failed miserably, destroying his family and destabilizing his kingdom. King Lear shows why few family businesses survive beyond three generations. Understanding Lear’s failure is crucial to avoiding Lear’s fate, whether the family business in question is a monarchy, a media empire, or a hardware store. The conventional wisdom is that Lear gave away his kingdom too soon and left himself vulnerable to predatory heirs. This has been referred to as the “King Lear Problem.” The conventional wisdom is wrong. Lear’s succession plan failed because he waited too long. Like Lear, those who control family businesses are often reluctant to step aside. For example, until he was well into his 90s, Sumner Redstone declared this his succession plan was to never die. The predictable consequence was litigation that engulfed the companies he controlled, including CBS and Viacom. Yet, despite its importance, the question of family-business succession has been neglected by legal scholars. Using King Lear as a framing device, this Article identifies obstacles to succession and shows how legislative initiatives, judicial intervention, and private ordering can facilitate the timely transfer of ownership and control across generations.
Download the article from SSRN at the link.

May 3, 2021

Mocsary and Person on A Brief History of Public Carry in Wyoming @uw_law

George A. Mocsary and Debora Person, both of the University of Wyoming College of Law, are publishing A Brief History of Public Carry in Wyoming in volume 21 of the Wyoming Law Review. Here is the abstract.
The history of gun carry laws in Wyoming parallels that of many other Western states, impacted the presence of great changes in national and regional events. From the time that Wyoming first became a territory in 1868, the treaties with the Cheyenne, the Crow, the Sioux, and the Arapahoe peoples distributing lands in Wyoming were in force. The Wind River Reservation was created for the Shoshones. The Homestead Act was recently passed, and the Pony Express, the Oregon Trail, the Overland Trail, the Mormon Trail, and the Bozeman Road crossed the plains and mountains of the territory. The Civil War had just ended and recovery was painful. The U.S. government had granted land to the Union Pacific for the transcontinental railroad, bringing with the project an itinerant population of railroad workers, many of whom were immigrants of minority status. Raids and skirmishes between settlers, migrants, and frustrated Indian Nations were increasing, and federal military outposts were built. The Territory of Wyoming encompassed an expansive geographical area, but the population was sparse. Vast prairies surrounded homes and towns, and the arm of justice was often far away. For the few short years that a portion of Wyoming existed as part of the Dakota Territory, the seat of government in Yankton, Dakota Territory, was 500 miles from Cheyenne, with limited access to the courts. Parts of Wyoming were lawless and dangerous, at times exceedingly so. At a time when guns were carried openly upon a person for business or for protection, carrying a concealed weapon came to be viewed with distrust. One Wyoming newspaper editor went so far as to infer intent to harm just by the act of arming oneself. “We take the point that the very act of arming oneself as a result of a quarrel or in anticipation of trouble constitutes malice and premeditation in a strict sense; that in view of the law prohibiting the carrying of concealed weapons, any person who has a grievance against another and arms himself is deserving of no sympathy when, as a result of his misdeeds, he is brought before the bar of justice.” In the 150 years since the creation of the territorial government, the State’s stance on gun carrying has undergone many adjustments. It shows that peaceable open firearm carriage has almost always been allowed everywhere, and always allowed somewhere, in Wyoming. Concealed carry, on the other hand, has a mixed history. It came to be held in disdain, and highly regulated, in the early part of Wyoming’s history. But it became the accepted and default mode of public carry in recent years. Wyoming today has some of the most liberal gun laws in the country. This essay surveys the development of these laws from positive, public-discourse, and comparative perspectives to the extent possible given the relative paucity of sources on the topic.
Download the article from SSRN at the link.

Ely on "All Temperate and Civilized Governments:" A Brief History of Just Compensation in the Nineteenth Century @BrighamKanner @vanderbiltlaw

James W. Ely, Vanderbilt University Law School, is publishing “All Temperate and Civilized Governments;” a Brief History of Just Compensation in the Nineteenth Century in volume 10 of the Brigham-Kanner Property Rights Journal. Here is the abstract.
This article explores the origins of the “just compensation” principle, the rationale behind the compensation requirement, and attempts to define the scope of “just compensation” throughout the Nineteenth Century. It traces the sources of the compensation requirement when property is acquired by eminent domain to English common law and the influence of natural law theorists. Courts in the United States early took the position that payment of compensation was a fundamental principle of universal application even if written constitutions contained no express compensation provision. The Fifth Amendment takings clause was seen as simply an affirmation of this overarching principle. The compensation norm was understood as a matter of “natural equity,” so that the burden of public projects was shared by the community as a whole rather than fall upon a single individual. Moreover, from the outset courts insisted that the determination of the amount of just compensation was a question for the judiciary, and that the legislature could not fix the measure of compensation. The article examines at length the evolution of “just compensation” during the Nineteenth Century. Where an entire parcel was taken, courts gravitated to the fair market value as the appropriate standard for compensation. Yet ascertaining fair market value posed difficulties, and many commentators charged that this standard did not provide adequate compensation to owners. Partial takings presented even more complicated problems. Lawmakers commonly mandated that in such cases the alleged benefits resulting from a project to the remaining land should be offset against the loss suffered by the owner, thus reducing any monetary compensation. Critics argued that supposed advantages were often illusory or inequitably benefited the entire community not the particular owner. The article probes the constitutional issues, as well as the confusion and uncertainty, arising from the offset of benefits. It also considers and questions the contested subsidy thesis, which holds that the offset of benefits amounted to a subsidy to transportation companies, especially railroads, by minimizing the expense of acquiring rights of way by eminent domain. Noting a gap between judicial rhetoric extolling the importance of private property and the frequent practice of awarding inadequate compensation when property was taken by eminent domain, the article concludes by suggesting that undercompensation was a legacy of the Nineteenth Century. In this connection, it looks at some recent cases in which courts stopped short of awarding full compensation.
Download the article from SSRN at the link.

April 29, 2021

Webinar: Conversation with Professor James Boyd White

 

“Mosaic: an Approach to Law and Literature” – A conversation piece with James BOYD WHITE - With the support of the ISLL (Italian Society of Law and Literature) and the ATFD (Portuguese Association for Legal Theory, Philosophy of Law and Social Philosophy, the Portugueses IVR Section), the UCILeR, the University of Coimbra Institute for Legal research  (within its research area "Law and Time") will welcome, on the next May 12th, at 3pm (4pm in Italia), Professor James Boyd White (L. Hart Wright Collegiate Professor Emeritus of Law, University of Michigan Law School). 

The webinar will integrate the lecture "Mosaic", a sequence of brief comments (which will bring some "surprises"!) and a dialogue with the audience. It is a unique opportunity to hear the author of Keep Law Alive considering (with an unmistakable perspective) some of the great challenges that the contemporary world imposes on Law.. 

Free participation upon registration at: https://www.fd.uc.pt/inscricao/ (or https://docs.google.com/forms/d/e/1FAIpQLSdYDSi7e5H6a3C9flvMMstDgBlojC7Y7I0DKRXEpOyDOSC_PA/viewform).

After registration the link will be sent.

Call For Nominations: 2021 Penny Pether Prize for Scholarship in Law, Literature [,] and the Humanities

From Dr. Timothy Peters, ARC DECRA Research Fellow, Senior Lecturer in Law, School of Law and Society, USC:

I am delighted to call for nominations for the 2021 Penny Pether Prize for Scholarship in Law, Literature and the Humanities.

 

The prize will be awarded to the author or authors whose book has, in the judgement of the Committee, made the most significant contribution to the field of Australasian law, literature and humanities since the award of the last prize. An additional ECR Prize may also be awarded if the Prize Committee deems that this is warranted.

 

The Prize Rules and Nomination form are attached and more details about the Prize, along with past winners, are available here: https://www.lawlithum.org/penny-pether-prize/

 

Nominations are due to the chair of the Prize Committee, Professor Marco Wan by the 1st of July 2019 at mwan@hku.hk

[N.B.: There is presumably an error in the submission date, because the prize rules for this year indicate a submission date of July 1st, 2021. --Ed.]

April 28, 2021

Newly Published: ART LAW AND CULTURAL HERITAGE LAW / DIREITO DA ARTE E DO PATRIMÔNIO CULTURAL (v. 17, 2020) @franca_marcilio

Newly published: ART LAW AND CULTURAL HERITAGE LAW / DIREITO DA ARTE E DO PATRIMÔNIO CULTURAL, volume 17, no. 3 (2020). Edited by Marcilio Toscano Franca Filho and Ardyllis Alves Soares. 

Here is a link to the website, which has links to PDFs of the articles.

McKenna on Designing for International Law: The Architecture of International Legal Organisations 1922-1952 @miriambmac

Miriam Bak McKenna, Lund University Faculty of Law, has published Designing for International Law: The Architecture of International Legal Organisations 1922 - 1952 at 34 Leiden Journal of International Law 1 (2021). Here is the abstract.
Situating itself in current debates over the international legal archive, this article delves into the material and conceptual implications of architecture for international law. To do so I trace the architectural developments of international law’s organizational and administrative spaces during the early to mid twentieth century. These architectural endeavors unfolded in three main stages: the years 1922–1926, during which the International Labor Organization (ILO) building, the first building exclusively designed for an international organization was constructed; the years 1927–1937 which saw the great polemic between modernist and classical architects over the building of the Palace of Nations; and the years 1947–1952, with the triumph of modernism, represented by the UN Headquarters in New York. These events provide an illuminating allegorical insight into the physical manifestation, modes of self-expression, and transformation of international law during this era, particularly the relationship between international law and the function and role of international organizations.
Download the article from SSRN at the link.

Ramsey on Women's Votes, Women's Voices, and the Limits of Criminal Justice Reform, 1911-1950 @ColoLaw

Carolyn B. Ramsey, University of Colorado Law School, is publishing Women's Votes, Women's Voices, and the Limits of Criminal Justice Reform, 1911-1950 in volume 92 of the University of Colorado Law Review. Here is the abstract.
On the eve of the Nineteenth Amendment’s ratification in 1920, Carrie Chapman Catt—the leader of the National American Woman Suffrage Association (NAWSA)—envisioned the establishment of a nonpartisan body dedicated to female voters’ political education that would help newly enfranchised women develop a voice in public affairs. To this end, Catt guided the conversion of NAWSA into a post-suffrage association called the National League of Women Voters (LWV). While Catt’s goal of training women for full citizenship was abstract, many state and local Leagues took a more practical approach, learning from the experience of tackling specific social problems. This Article, written for a symposium commemorating the centennial of the Nineteenth Amendment, assesses the role of LWV leaders in California in reforming three aspects of the criminal justice system that affected women: courts, police, and prisons. It draws from the archival papers of the San Francisco Center of the LWV, as well as other primary sources, to reveal the contradictions and shortcomings, as well as the achievements, of newly enfranchised California women who sought to carry on the suffragists’ legacy. During the four decades between 1911 and the middle of the twentieth century, the San Francisco Center advocated gender-specific approaches to crime with varying degrees of success or failure. Initially prompted to investigate the ills of lower-level criminal courts (known as “police courts”) by a local judge’s mishandling of rape cases, San Francisco clubwomen launched a full-fledged effort to establish a Women’s Court. Part I of this Article discusses the origins, goals, and limitations of the Women’s Court and the San Francisco Center’s subsequent campaign for the appointment of a female prosecutor and municipal judge. Although influenced by Progressive ideas about the use of specialized courts and trained experts, League members mostly confined their efforts to morals offenses that recalled the Victorian social purity movement, rather than seeking remedies for domestic violence and other aspects of crime that affected women. Part II explores another project supported by the San Francisco Center that exemplified how Progressive tools might perpetuate essentially Victorian values. During the first half of the twentieth century, San Francisco clubwomen urged the SFPD, with little success, to hire a substantial number of female police officers. The San Francisco Center emphasized prostitution and other vices of “fallen” women as areas of law enforcement for which female officers supposedly possessed special skills. Limited both by the SFPD’s reluctance to hire women and female reformers’ myopic interest in preventing prostitution, the San Francisco Center doggedly pursued an agenda that entrenched gender segregation on the police force without bringing real remedies to systemic sexism or the victimization of women. Part III describes the most revolutionary criminal justice reform project that members of the California LWV spearheaded in the first half of the twentieth century: the creation of a “prison without walls” for female offenders. Based on the notion that women who committed crimes, even felonies, might be taught law-abiding ways through education, hard work, and humane treatment, the Tehachapi prison experiment demonstrated that newly enfranchised female voters had gained traction in public life. However, while the creation and operation of the women’s prison gave substance to a rehabilitative ideal more forward-looking than many LWV proposals for moral enforcement, the male-dominated legal system created substantial impediments to the success of the Tehachapi facility. The Conclusion assesses the contributions of the LWV and its state and local branches in California. Like their sisters in the national organization, members of the San Francisco Center worked tirelessly on social welfare issues and civil service reform, opening unprecedented paths to jobs and community involvement for women. In contrast, their criminal justice reform efforts were hampered, not only by the differing interests and continued power of male jurists, police chiefs, and prison officials, but also by the clubwomen’s obsession with prostitution. The affluent white activists of the San Francisco Center and the state-level LWV failed to advocate structural changes that might have liberated women, especially poorer and racial-minority women, from gendered violence. Yet despite the San Francisco Center’s limited success in obtaining justice for victims of sexual exploitation, integrating the San Francisco Police Department, and rehabilitating female offenders, its activities helped put women into public office and provide concrete opportunities for political engagement in the first few decades after suffrage was achieved.


Download the article from SSRN at the link. 

April 27, 2021

Cogan on A History of International Law in the Vernacular @IntLawReporter

Jacob Katz Cogan, University of Cincinnati College of Law, is publishing A History of International Law in the Vernacular in the Journal of the History of International Law. Here is the abstract.
Histories of international law have typically focused on the origins of legal rules and doctrines, the decisions of courts and other formal tribunals, the views of professors and legal theorists and diplomats, and the evolution of the legal profession. That is, international legal histories have centered on the concerns of lawyers and states and have reflected a positivist vision of international lawmaking. We need a history of international law that focuses more on international law in action — the invocation, elaboration, and contestation of rules in and through their everyday application, not just by states, high-level state actors, legal theorists, and state-organized domestic and international institutions, but also by individuals, low-level officials, private groups, and nongovernmental actors and in places outside of the usual fora where “international law” is said to be found. We need a history of international law in the vernacular.
Download the article from SSRN at the link.

April 22, 2021

Newly Published: Mixed-Race Superheroes (Rutgers, 2021), Edited by Sika A. Dagbovie-Mullins and Eric L. Berlatsky @RutgersUPress @booksnerrd

New from Rutgers University Press: Mixed-Race Superheroes (Sika A. Dagbovie-Mullins and Eric L. Berlatsky, eds., 2021). Here from the publisher's website is a description of the book's contents.
American culture has long represented mixed-race identity in paradoxical terms. On the one hand, it has been associated with weakness, abnormality, impurity, transgression, shame, and various pathologies; however, it can also connote genetic superiority, exceptional beauty, and special potentiality. This ambivalence has found its way into superhero media, which runs the gamut from Ant-Man and the Wasp’s tragic mulatta villain Ghost to the cinematic depiction of Aquaman as a heroic “half-breed.” The essays in this collection contend with the multitude of ways that racial mixedness has been presented in superhero comics, films, television, and literature. They explore how superhero media positions mixed-race characters within a genre that has historically privileged racial purity and propagated images of white supremacy. The book considers such iconic heroes as Superman, Spider-Man, and The Hulk, alongside such lesser-studied characters as Valkyrie, Dr. Fate, and Steven Universe. Examining both literal and symbolic representations of racial mixing, this study interrogates how we might challenge and rewrite stereotypical narratives about mixed-race identity, both in superhero media and beyond.



 


April 20, 2021

Davis on Legal Ethics, Legal Dualism, and Fidelity to Law @usflaw

Joshua P. Davis, University of San Francisco School of Law, has published Legal Ethics, Legal Dualism, and Fidelity to Law. Here is the abstract.
This Article argues that there is an important relationship between the nature of law and legal ethics. A crucial claim in support of this thesis is that the nature of law varies with the purpose for which it is being interpreted. In particular, the Article contends that natural law provides the best account of the nature of law when an interpreter seeks moral guidance from the law, and legal positivism provides the best account when an interpreter seeks instead to describe the law or to predict how others will interpret it. This philosophical position it labels “legal dualism.” Legal dualism has a significant implication for legal ethics: to the extent the law serves as a source of moral guidance for interpreters, they must act as natural lawyers. The Article tests legal dualism and its corollary for legal ethics against Bradley Wendel’s justly lauded book, LAWYERS AND FIDELITY TO LAW. Wendel pairs legal positivism and the moral legitimacy of law, commitments that legal dualism suggests are incompatible. The Article argues that, while Wendel makes many important contributions, his argument is not fully successful to the extent it conflicts with legal dualism. It concludes that he—and others—should acknowledge and address the need for ethical attorneys to act as natural lawyers. That means lawyers sometimes must make moral judgments in saying what the law is.
Download the article from SSRN at the link.

April 16, 2021

Brunschwig on Visual Law and Legal Design: Questions and Tentative Answers

Colette R. Brunschwig, University of Zurich, Department of Law, Centre for Legal History, Legal Visualization Unit, has published Visual Law and Legal Design: Questions and Tentative Answers in Proceedings of the 24th International Legal Informatics Symposium IRIS 2021 179-230 (Erich Schweighofer, Franz Kummer, Ahti Saarenpää, Stefan Eder, and Philip Hanke, Bern: Editions Weblaw, 2021). Here is the abstract.
This paper rests on three premises: First, ongoing digitalization is unleashing visualization (still or moving images) and audio visualization (videos, audiovisual animations, etc.). This massive technological development is also initiating multi sensorization (humanoid robots, virtual realities, etc). Second, visual law and legal design are still largely unknown as fi elds of scholarly inquiry to many legal and non-legal actors. My paper therefore uses “visual law” and “legal design” as working terms to delineate these fi elds. Third, I take an etymological approach to the word “responsible” featuring in the conference title of the International Symposion on Legal Informatics 2020 as it implies a quality that is required of digitalization. The English adjective “responsible” comes from the Latin verb respondēre, whose meanings include answering (responding) and corresponding to something. Based on these premises, this paper explores four key questions: How does current legal research respond to visualization? What are visual law and legal design? How are visual law and legal design similar or diff erent? What should visual lawyers or legal designers do to act responsibly in the face of ongoing digitalization? Tackling these questions yields new insights for the debate on legal visualization. The answers given in this paper reveal how various basic legal disciplines and law-and areas gravitate around this topic. The answers also demonstrate that the insights of the basic legal disciplines and law-and areas are or should be interconnected. Taking such steps will promote not only visualization itself but also interdisciplinary legal research on this important topic.
Download the essay from SSRN at the link.

April 15, 2021

Chin on The Blueprint for Dred Scott: United States v. Dow and the Multi-Racial Jurisprudence of White Supremacy @UCDavisLaw

Gabriel Jackson Chin, University of California, Davis, School of Law, has published The Blueprint for Dred Scott: United States v. Dow and the Multi-Racial Jurisprudence of White Supremacy. Here is the abstract.
Chief Justice Taney’s 1857 opinion in Dred Scott v. Sandford is justly infamous for its holdings that African Americans could never be citizens, that Congress was powerless to prohibit slavery in the territories, and for its proclamation that persons of African ancestry “had no rights which the white man was bound to respect.” For all of the interest in and attention to Dred Scott, however, no scholar has previously analyzed United States v. Dow, an 1840 decision of Chief Justice Taney in a Circuit Court trial which is apparently the first federal decision to articulate a broad theoretical basis for White supremacy. Dow identified Whites as the “master” race, and it explained that only those of European origin were either welcomed or allowed to be members of the political community in the colonies. Non-Whites such as members of Dow’s race, Taney explained, could be reduced to slavery, and therefore their rights continued to be subject to absolute legislative discretion. Dow, however, was not a person of African descent, he was Malay, from the Philippines. Chief Justice Taney’s employment in Dow of legal reasoning which he would later apply in Dred Scott suggests that Dred Scott should be regarded as pertinent to all people of color, not only African Americans. This understanding of Dred Scott helps explain the revival of Taney’s reputation during the Jim Crow era after Reconstruction. Courts declined to invalidate restrictions with respect to a broad range of civil rights on citizens and immigrants of African, Indian, Asian, and Mexican ancestry to which Whites were not subject. Indeed, Whites could not be subject to them, unless it is conceivable that under the U.S. Constitution, the law could provide, for example, that all races would be ineligible to testify or vote because of their race. Accordingly, even after Reconstruction, just as Dred Scott and Dow contemplated, the White race remained the master race, in the sense that they were the exclusive holder of truly inalienable rights.
Download the article from SSRN at the link.

April 14, 2021

Bernstein on How Technologies of Language Meet Ideologies of Law @UBSchoolofLaw @anyabernstein

Anya Bernstein, University at Buffalo Law School, is publishing Technologies of Language Meet Ideologies of Law (Symposium: Law, Language, and Technology) in the 2020 volume of the Michigan State Law Review (forthcoming in 2021). Here is the abstract.
A new technology of interpretation is taking the legal world by storm. Legal corpus linguistics, an approach generally unknown in the field until a few years ago, has suddenly become a focus for articles, conferences, legal briefs, and even judicial opinions. Taking advantage of evolving computational approaches and data collection abilities, legal corpus linguistics searches big data sets of language use to help interpret legal texts. This Article puts legal corpus linguistics in the context of other meaning-making technologies and suggests an approach for analyzing any technology of language in the law. One of my aims is to caution against technological exceptionalism—a view that computerized, automated, or big-data approaches are somehow special, perhaps more trustworthy, less subjective, and most likely to succeed. Rather, I argue that we should ask the same questions, and make the same demands, of any method of interpretation. As science and technology studies (STS) and related scholarship has demonstrated, technology is not neutral or passive. It is a cause in its own right. That makes it particularly important to examine the underlying assumptions that help construct, and are perpetuated through, a given technology. To elucidate these points, I draw on theorists who have influenced our understandings of the production of knowledge and technological development, showing how he key contributions by Bruno Latour, Ian Hacking, and Michel Foucault should inform our evaluation of legal language technologies. I then introduce legal corpus linguistics, describing its origins in academic linguistics and the somewhat different way it has been practiced in legal interpretation. Having laid this groundwork, I ask how we should evaluate this emerging technology in legal interpretation. I argue that legal corpus linguistics fails to coherently relate its methods, questions, aims, and claims. Moreover, it inscribes a peculiar view of legal meaning: a narrow, asocial, and abstracted notion of things that are in fact broad, social, and practice-based. The illusion of simplicity that legal corpus linguistics propagates undermines our evolving understanding of the real complexities of law and leaves out participants and contexts that are crucial to the production of law as a social force. To probe its implications further, I then put legal corpus linguistics in the context of some other ways of giving laws meaning. I choose two that sit at the extremes of simplicity and complexity: dictionary definitions, on the one hand, and administrative rulemaking procedures, on the other. These may seem unrelated or incommensurable, but in fact they all are technologies of legal interpretation that should be considered in comparison to one another. Comparison also helps illuminate those aspects of legal corpus linguistics that fit it snugly into particular legal ideologies, but blind it to the realities of how law functions in society.
Download the article from SSRN at the link.

April 13, 2021

Zipporah B. Wiseman Prize for Scholarship on Law, Literature, and Justice: Writing Competition The Bernard and Audre Rapoport Center for Human Rights and Justice at the University of Texas School of Law @UTexasLaw

 From the Bernard and Audre Rapoport Center for Human Rights and Justice:


The Bernard and Audre Rapoport Center for Human Rights and Justice at the University of Texas School of Law is proud to administer the Zipporah B. Wiseman Prize for Scholarship on Law, Literature, and Justice. Awarded to the winners of an annual international and multidisciplinary writing competition, the prize is made possible by donations from the friends, family, and colleagues of the late Zipporah Batshaw Wiseman, in honor of her important work at the intersection of law and literature.

TOPIC: We welcome papers from any discipline that engage both legal and literary methods or texts. For these purposes, literary texts include written and other narrative forms, such as film. Papers should use an interdisciplinary lens to explore issues of justice, broadly understood. The papers may work from any of a variety of perspectives: legal and literary, of course, but also philosophical, historical, sociological, political, economic, or cultural.

PRIZE: The winning paper will receive $1,250 and will be published in the Working Paper Series of the Bernard and Audre Rapoport Center for Human Rights and Justice. A second-place prize of $750 might also be awarded, with the paper considered for publication in the Working Paper Series.

ELIGIBILITY: The prize is open to students currently enrolled in graduate or professional programs as well as to those who have graduated from such programs in or after May 2020. Papers must consist of original work, primarily undertaken as a student, that has not been published or undergone professional editing at the time of submission. Authors must have rights to the content and be willing to publish the paper in the Rapoport Center’s Working Paper Series shortly after the winner has been announced. If papers are later published in a journal or other edited collection, they may be replaced in the Working Paper Series with a citation to that publication.

JUDGMENT CRITERIA: An interdisciplinary and international panel of scholars will judge the papers anonymously. Relevant judgment factors include the strength and logic of the thesis, depth of the analysis, originality and importance of intervention, thoroughness and soundness of the research, and quality of writing (clarity and organization).

FORMAT: Papers must be between 8,000 and 12,000 words, including notes and appendices, and written in English. Text should be double-spaced, with 12-point font and 1-inch margins. Citational style should be disciplinarily appropriate. Via email, please submit, in three separate documents, the paper (without any identifying information), abstract (100 to 250 words), and full contact details (including university, degree, and anticipated/actual graduate date). Include “Zipporah Wiseman Prize” in the subject line of the email. All submissions must be submitted in .doc or .docx format.

DEADLINE: June 15, 2021, 11:59 p.m. (CT).  Submissions should be sent via email to humanrights@law.utexas.edu.


April 12, 2021

Gerber on The Intellectual History of European Laws about Religious Toleration Prior to the Planting of English America

Scott D. Gerbert, Ohio Northern Univeristy College of Law, is publishing The Intellectual History of European Laws about Religious Toleration Prior to the Planting of English America in Glossae: The European Journal of Legal History (2021). Here is the abstract.
Law matters, and laws about religion matter a lot. Both the European laws about religious toleration prior to the planting of English America and the laws about religious toleration enacted by the settlers who founded English American colonies for religious reasons employed law primarily as a means of social control. European monarchs wanted power, and they utilized laws about religion to help them acquire it and maintain it. The leaders of the English American colonies planted for religious reasons used law to effectuate their designs: to foster religious toleration in those colonies committed to that animating principle (Maryland, Rhode Island, and Pennsylvania); to try to create an ideal Bible commonwealth for the colonies dedicated to the idea that religion must be practiced as God had ordained (Connecticut and Massachusetts). In short, the settlers of English America were impacted by the European laws about religious toleration that preceded their voyages to the New World. The planters of religiously tolerant colonies tried to learn from what they regarded as Europe’s mistakes, while those who strove for religious purity rejected the prevailing European notion that divine sovereignty must occupy a decidedly secondary place to the sovereignty of the state.
Download the article from SSRN at the link.

April 1, 2021

Safner on Honor Among Thieves: How 19th Century American Pirate Publishers Simulated Copyright Protection @ryansafner

Ryan Safner, Hood College, has published Honor Among Thieves: How 19th Century American Pirate Publishers Simulated Copyright Protection. Here is the abstract.
From 1790 to 1891, the United States prevented foreign authors from obtaining domestic copyright protection, implicitly subsidizing a domestic reprinting industry. With foreign works a “free” and unprotected resource, American publishers created a system of voluntary norms, known as “trade courtesy” to create and enforce psuedo- property rights in uncopyrighted foreign works, simulating the effects of legal copyright protection. This paper analyzes this system using the Bloomington School’s Institutional Analysis and Design (IAD) framework to under- stand its effectiveness, and pitfalls, in managing the commons of unprotected foreign works in 19th Century America.
Download the document from SSRN at the link.

March 31, 2021

Gillmer on Black, White, and Gold: Litigating Slavery in the American West @GonzagaLaw

Jason Gillmer, Gonzaga University School of Law, has published Black, White, and Gold: Litigating Slavery in the American West. Here is the abstract.
In May 1852, Charles Perkins decided he wanted his slaves back. Perkins was from Mississippi, but in 1849 he caught gold fever and moved to California in search of easy fortune. When he came, like hundreds of others from the southern states, he also brought an enslaved man with him, and later had two others sent from his family’s plantation. In 1851, following California’s admission to the Union as a free state, Perkins returned to his home in Mississippi, leaving the three men behind. A year later they were in court, litigating the question of whether California’s recently enacted Fugitive Slave Act—which promised the resources of the state to help slaveholders recover their slaves—was constitutional, and with it the larger issue of whether slavery could exist on free soil. The answer, provided five years before Dred Scott, foreshadowed the coming of the Civil War, and firmly planted the West in the middle of the national debate over race, slavery, and the law. This paper is a narrative history of In re Perkins, the case involving Charles Perkins and the three men he maintained were his slaves. In takes place during the Gold Rush and the decade that followed, and it has two primary goals. First, by centering a story about slavery in the American West, it provides a critical lens through which we can explore how the ideological conflicts animating the North-South axis also extended horizontally to the Pacific Ocean. With rare exception, scholars of American slavery and those of the West do not engage in the type of rich discussions that allow for the West to be brought into the national discourse over slavery and the growing sectional crisis. Yet, as In re Perkins demonstrates, these issues very much shaped both the experiences of those who settled the area and the positions of those back east. Second, as a narrative history, this paper also affords an opportunity to dig down deep into the main participants in the case and reconsider who we think the makers and interpreters of the law are. Unlike like most legal histories, which place primary emphasis on court decisions and legislative enactments, the focus here is on how the law was experienced on a local and more nuanced level. By shifting the emphasis from the high courts to the county courtrooms, this paper is part of a larger story of how people of color and their allies turned to the courts in an effort to protect their rights in ways that have not always been understood or appreciated.
Download the article from SSRN at the link.

Monti on the Legal Authority of the Senate of Milan (16th-17th Centuries) @Unibocconi

Annamaria Monti, Bocconi University Department of Law, has published Under the Legal Authority of the Senate of Milan (16th-17th Centuries) in Authorities in Early Modern Courts in Europe 137-149 (G. Rossi, ed., Edinburgh University Press, Edinburgh, 2021). Here is the abstract.
The Senato of Milan was one of the most powerful European courts of justice in the early modern period, and its case law greatly influenced the development of substantive law. Indeed, recent research on the problems of legislation, law and the role of judges today has shone a spotlight on how case law impacts sources of law—and I believe this is an interesting opportunity to examine the issue by looking back on the institutional values and systems that society had in place during the ancien régime, of which the Senato itself was at once an expression and a guarantor.
Download the essay from SSRN at the link.

March 30, 2021

Crawford, Jackson, and Hartzel on Stealing Culture: The Internalization of Critical Race Theory Through the Intersection of Criminal Law and Museum Studies

Nicole Crawford, University of Wyoming Art Museum, Darrell Jackson, University of Wyoming College of Law, and Toni Hartzel have published Stealing Culture: The Internalization of Critical Race Theory Through the Intersection of Criminal Law and Museum Studies in Critical Race Theory in the Academy (V. L. Farmer and E. S. W. Farmer, eds., Information Age Publishing, 2020). Here is the abstract.
Consider this scenario: You walk into a museum or a collector’s home and take the most valuable item located within. Society, via criminal laws, would label you a thief and your actions as theft, robbery, or some other heinous activity. Yet, when the actors are flipped, and the museum (via its agents) enters the homes or lands of certain peoples, the law labels that 'an acquisition' and the thief turn into 'a collector.' Critical Race Theory (CRT) gives us a legal analytical tool to reconsider these labels, definitions, and outcomes.
The full text is not available from SSRN. 

Skuczynski on Narrativity of Legal Language in the Law-Making Process

Pawel Skuczynski, University of Warsaw, Faculty of Law and Administration, has published Narrativity of Legal Language in the Law-making Process, in issue one of the Archiwum Filozofii Prawa i Filozofii Społecznej/Journal of the Polish Section of IVR (2020). Here is the abstract.
The paper concerns the relation between argumentative and narrative features of legal texts and the question whether legal texts can be perceived as narrative texts. A narrative text is understood as transferring a story to the recipient through a given medium. The story, being the content of a narrative text, constitutes a specific way of manifesting the plot. The latter is a sort of internal logic of the story. The very same plot might be told in many different ways. Hence, the narrative text does not depict events directly, but through a story that requires a storytelling agent – the narrator. Certainly, there are different kinds of narrators, who can be more or less exposed within the text. In consequence, there are at least five positions concerning the relation between argumentation and narration in law: 1) sceptic – narration is a negation of the reasonableness of law; 2) narration is a structure of presentation of facts; 3) narration is a means of rhetoric persuasion; 4) narration is a meta-argumentative structure; 5) narration is a subject of critical analysis as it reveals the identity of an author. The theory of narration is applied to a particular problem of participation of professional self-governments in law-making.
Download the article from SSRN at the link.

March 24, 2021

Zier on Feminism, Insanity, and Property Rights in 1940s America @MagdaleneZier

Magdalene Zier, Stanford University School of Law, Stanford University Department of History, is publishing 'Champion Man-Hater of All Time': Feminism, Insanity, and Property Rights in 1940s America in the Michigan Journal of Gender & Law. Here is the abstract.
Legions of law students in property or trust and estates courses have studied the will dispute, In re Strittmater’s Estate. The cases, casebooks, and treatises that cite Strittmater present the 1947 New Jersey supreme court decision as a model of the “insane delusion” doctrine. Readers learn that snubbed relatives successfully invalidated Louisa Strittmater’s will, which left her estate to the Equal Rights Amendment campaign, by convincing the court that her radical views on gender equality amounted to insanity and, thus, testamentary incapacity. By failing to provide any commentary or context on the overt sexism, these sources affirm the court’s portrait of Louisa Strittmater as an eccentric landlady and fanatical feminist. This is troubling. Strittmater should be a well-known case, but not for the proposition that feminism is an insane delusion. Despite the decision’s popularity on law school syllabi, no scholar has interrogated the case’s broader historical background. Through original archival research, this Article centers Strittmater as a case study in how social views on gender, psychology, and the law shaped one another in the immediate aftermath of World War II, hampering women’s property rights and efforts to achieve constitutional equality. More than just a problematic precedent, the case exposes a world in which the “Champion Man-Hater of All Time”—newspapers’ epithet for Strittmater—was not only a humorous headline but also a credible threat to the postwar order that courts were helping to erect. The Article thus challenges the textbook understanding of “insane delusion” and shows that postwar culture was conducive to a strengthening of the longstanding suspicion that feminist critiques of gender inequality were, simply put, crazy.
Download the article from SSRN at the link.

March 22, 2021

Abrams on References to Aesop's Fables in Judicial Opinions and Written Advocacy

Douglas E. Abrams, University of Missouri School of Law, has published References to Aesop's Fables in Judicial Opinions and Written Advocacy at 77 Journal of the Missouri Bar 24 (Jan.-Feb. 2021). Here is the abstract.
Professor Abrams authors a column, Writing it Right, in the Journal of the Missouri Bar. In a variety of contexts, the column stresses the fundamentals of quality legal writing — conciseness, precision, simplicity, and clarity.
Download the article from SSRN at the link.

March 19, 2021

ICYMI: Barrett on A New CJ in the Sight of His Predecessor: Stone and Hughes, Summer 1941 @JohnQBarrett @StJohnsLaw

ICYMI: John Q. Barrett, St. John's University School of Law; Robert H. Jackson Center, has published A New Chief Justice in the Sight of His Predecessor: Stone and Hughes, Summer 1941 at 42 Journal of Supreme Court History 202 (2017). Here is the abstract.
Most Chief Justices of the United States have died in office. And few served initially as an Associate Justice. Thus after the founding period, only two Chiefs—Charles Evans Hughes and Warren E. Burger—ever saw an Associate Justice colleague be appointed to succeed him as Chief Justice. This article chronicles that history. It also describes the rare instance in Summer 1941 of such a succession, and the telegrams and letters that Chief Justice Hughes and his colleague Associate Justice Harlan Fiske Stone exchanged as Hughes retired and Stone was appointed to be his successor.


Download the article from SSRN at the link. 

March 15, 2021

Solan on Linguistic Evidentials and the Law of Hearsay @brooklynlaw @OxUniPress

Lawrence M. Solan, Brooklyn Law School, is publishing Linguistic Evidentials and the Law of Hearsay in Philosophical Foundations of Evidence (Oxford University Press, 2020) (forthcoming). Here is the abstract.
This essay, using insights derived from linguistics and the philosophy of language, explores the relationship between how natural language expresses degrees of certainty in the truth of an assertion on the one hand, and how the law handles this issue on the other. The hearsay rule bars certain kinds of speech acts from serving as legal evidence, in particular assertions that report what another person earlier said, and which are offered to express the truth about the events at issue in a case. Some languages actually require that a speaker specify the source of information conveyed. At a trial, the witness will use one expression if he saw the defendant at the relevant time, another expression if he knows this information from having been told, and perhaps a third if he figured it out from the circumstances. Just as English speakers include tense as part of their linguistic expressions, other languages, including Cuzco Quechua (a Peruvian language) and Turkish include information about how the speaker came to know the assertions that he makes. These linguistic elements are called evidentials. In essence, these languages have a built-in identifier of hearsay. They require that the speaker tip off the hearer when a statement is made based on hearsay evidence. In some ways, the use of evidentials mirrors the hearsay rule in law. But in other respects, the two systems differ. This essay introduces the legal community to evidentials, and explores similarities and differences between legal and linguistic rules.
Download the essay from SSRN at the link.

March 12, 2021

Park on Conquest and Slavery as Foundational To Property Law @ksuenamu

K-Sue Park, Georgetown University Law Center, has published Conquest and Slavery as Foundational to Property Law. Here is the abstract.
This article demonstrates that the histories of conquest and slavement are foundational to U.S. property law. Over centuries, laws and legal institutions facilitated the production of the two commodities, or forms of property, upon which the colonial economy and the United States came to depend above all others: enclosures of Native nations’ land and enslaved people. By describing the role of property law in creating markets for lands and people, this article addresses the gap between the marginal place of these histories in the contemporary property law canon and the growing scholarly and popular recognition that conquest and enslavement were primary modes of property formation in American history. First, this article describes how the field of property law has come to omit these histories from its common understanding of what is basic to its subject by examining property law casebooks published over 130 years. For most of their history, it shows, such casebooks affirmed the racial logic of conquest and slavery and contributed to these histories’ suppression in pedagogical materials. Early treatises avowed the foundational nature of conquest, but after the first property law casebook appeared, at the time of the close of the frontier, casebooks for more than half a century emphasized English inheritance, rather than acknowledging colonization’s formative impact on the property system. In the same period, the era of Jim Crow, casebooks continued to include many cases involving the illegal, obsolete form of property in enslaved people; when they ceased to do so, they replaced them with cases on racially restrictive covenants upholding segregation. After several decades, during which the histories of conquest and slavery were wholly erased, casebooks in the 1970s began to examine these histories through a critical lens for the first time. However, the project of understanding their consequences for the property system has remained only partial and highly inconsistent. The central part of this article focuses on the acquisition of property, which, properly understood, comprises the histories of conquest, slavery, expropriation, and property creation in America. It examines the three main theories of acquisition—discovery, labor and possession-- beginning with the United States’ adoption of the Discovery Doctrine, the international law of conquest, as the legal basis of its sovereignty and property laws. In this context, it shows that the operative principle of the doctrine was not that of first-in-time, as commonly taught, but the agreement of European nations on a global racial hierarchy. Second, it turns to the labor theory, which was selectively applied according to the hierarchy of discovery, and firmly linked ideologies about non-whites and property value. It then reframes the labor theory’s central question—property creation—as a matter of legal and institutional innovation, rather than merely agricultural labor. It examines the correlation between historical production of property value in the colonies to show how the main elements of the Angloamerican land system developed through the dispossession of nonwhites-- the rectangular survey, the comprehensive title registry, headrights and the homesteading principle, laws that racialized the condition of enslavement to create property in human beings, and easy mortgage foreclosure, which facilitated the trade of human beings and land as chattel to increase colonists’ wealth. Third, it assesses how the state organized the tremendous force required to subvert others’ possession of their lands and selves, using the examples of the strategy of conquest by settlement and the freedom quests that gave rise to the fugitive slave controversy. Its analysis highlights the state’s delegation of violence and dispossession to private actors invested in the racial hierarchy of property through the use of incentives structured by law. This article concludes by summarizing how the laws that governed conquest and slavery established property laws, practices, and institutions that laid the groundwork for transformations to interests in land after the abolition of slavery, which I will address in a future companion article. This article aims throughout to offer a framework for integrating the study of English doctrines regulating relations between neighbors-- the traditional focus of a property law course—into an exploration of the unique fruits of the colonial experiment -- the singular American land system that underpins its real estate market and its structural reliance on racial violence to produce value.

March 11, 2021

Kislowicz on Law, Faith, and Canada's Unwritten Constitution @HowieKislowicz @UCalgaryLaw

Howard Kislowicz, University of Calgary Faculty of Law, is publishing Law, Faith, and Canada’s Unwritten Constitution in volume 25 of the Review of Constitutional Studies (2021). Here is the abstract.
This article argues that the Canadian judicial attachment to the unwritten Constitution is faith-like. The faith-like aspects of this jurisprudence include the following explicit and implicit commitments:

 

1. The Constitution is incompletely and imperfectly stated by the constitutional text;

 

2. The Constitution is revealed through the act of interpretation in glimpses over time to authoritative interpreters;

 

3. The unwritten Constitution has provided and will provide reliable and morally good guidance for action, sometimes overtaking the written text of the Constitution; and

 

4. The precise nature and location of the Constitution eludes description, leading to reliance on metaphors and references to tradition.

 

This matters because the Canadian Constitution is often called upon, through the courts, to settle disputes surrounding religious practices. In resolving such disputes, the law must claim some form of authority over religion. I claim that the Court normatively justifies this assertion of authority by implicitly contrasting its own rationality with religion’s faith-based way of encountering the world. This claim is unstable because of the faith-like aspects of the law. This, however, is not a reason to overhaul the case law. It is instead a reason for judicial humility.
Download the article from SSRN at the link.

March 5, 2021

Gerber on The Intellectual History of European Laws About Religious Toleration Prior to the Planting of English America

Scott D. Gerber, Ohio Northern University College of Law, is publishing The Intellectual History of European Laws about Religious Toleration Prior to the Planting of English America in GLossae: European Journal of Legal History (2021). Here is the abstract.
Law matters, and laws about religion matter a lot. Both the European laws about religious toleration prior to the planting of English America and the laws about religious toleration enacted by the settlers who founded English American colonies for religious reasons employed law primarily as a means of social control. European monarchs wanted power, and they utilized laws about religion to help them acquire it and maintain it. The leaders of the English American colonies planted for religious reasons used law to effectuate their designs: to foster religious toleration in those colonies committed to that animating principle (Maryland, Rhode Island, and Pennsylvania); to try to create an ideal Bible commonwealth for the colonies dedicated to the idea that religion must be practiced as God had ordained (Connecticut and Massachusetts). In short, the settlers of English America were impacted by the European laws about religious toleration that preceded their voyages to the New World. The planters of religiously tolerant colonies tried to learn from what they regarded as Europe’s mistakes, while those who strove for religious purity rejected the prevailing European notion that divine sovereignty must occupy a decidedly secondary place to the sovereignty of the state.
Download the article from SSRN at the link.

March 4, 2021

Bezemek on Game of Thrones: An Essay in Politics Theory--The Men of the "Night's Watch" @UniGraz

Christoph Bezemek, University of Graz, Faculty of Law, Institute of Public Law and Political Science, has published Game of Thrones: An Essay in Political Theory - The Men of the 'Night's Watch'. Here is the abstract.
In 2019 I started to work on a small volume on the popular TV franchise 'Game of Thrones' from a political theory perspective; convinced that the show’s plot means not only to expose oneself to the thrills of a sex- and violence-laden fantasy adventure. Watching ‘Game of Thrones’, I thought, requires to do more than simply love or hate the protagonists as they fail or succeed in fighting, scheming and plotting their way to the ‘Iron Throne’. It requires to make political judgments about the agents and their actions. Thus: why not use the characters of the show, the challenges they face, the institutions that determine their fate and the social and legal norms that govern their conduct as a background for an essay in political theory? Save for one chapter, alas, the book has never been written. This chapter (originally intended to be the sixth) focuses on the 'Night's Watch'.
Download the article from SSRN at the link.

March 2, 2021

Newly Published: Alexander Lian: Stereoscopic Law: Oliver Wendell Holmes and Legal Education (Cambridge University Press, 2020) @CambridgeUP

 Alexander Lian has published Stereoscopic Law: Oliver Wendell Holmes and Legal Education (Cambridge University Press, 2020). Here from the publisher's website is a description of the book's contents.



In this unique book, Alexander Lian, a practicing commercial litigator, advances the thesis that the most famous article in American jurisprudence, Oliver Wendell Holmes's “The Path of the Law,” presents Holmes's leading ideas on legal education. Through meticulous analysis, Lian explores Holmes's fundamental ideas on law and its study. He puts “The Path of the Law” within the trajectory of Holmes's jurisprudence, from earliest scholarship to The Common Law to the occasional pieces Holmes wrote or delivered after joining the U.S. Supreme Court. Lian takes a close look at the reactions “The Path of the Law” has evoked, both positive and negative, and restates the essay's core teachings for today's legal educators. Lian convincingly shows that Holmes's “theory of legal study” broke down artificial barriers between theory and practice. For contemporary legal educators, Stereoscopic Law reformulates Holmes's fundamental message that the law must been seen and taught three-dimensionally.


The book is available through Cambridge Core.

 


Yale Journal of Law & the Humanities, v. 31, Issue 2, Now Available

The Yale Journal of Law & the Humanities has published volume 31, issue 2. Here is a link to the table of contents. Many articles of interest, including Paulo Bazzaro's Law in Time: Legal Theory and Legal History, Ntina Tzouvala's The Specter of Eurocwntrism in International Legal History, and Megan Ming Francis and John Fabian Witt's Movement Capture or Movement Strategy? A Critical Race History Exchange on the Beginnings of Brown v. Board.

Via @ArsScripta.

February 26, 2021

Call For Papers: FRANKENLAW: Critical Legal Conference 2021, University of Dundee, September 2-4 @thomgiddens

 The Call For Papers for FRANKENLAW, the Critical Legal Conference 2021, University of Dundee, September 2-4, is now open. It will close on March 31, 2021.

Information and queries: contact@clc2021.com









Theme Information

I lived principally in the country as a girl, and passed a considerable time in Scotland. I made occasional visits to the more picturesque parts; but my habitual residence was on the blank and dreary northern shores of the Tay, near Dundee. Blank and dreary on retrospection I call them; they were not so to me then. They were the eyry of freedom, and the pleasant region where unheeded I could commune with the creatures of my fancy.

Mary Shelley, preface to the 1831 edition of Frankenstein, or The Modern Prometheus

Dundee had an embryonic role in the creation of Mary Shelley’s novel Frankenstein. Approaching the northern fringes of the United Kingdom, Dundee’s ‘eyry of freedom’ helped shape the imaginary that would result in Shelley’s famous text, and the infamous and unnatural conglomeration that it unleashed upon the world. Shelley’s reconstituted monster, created by Dr Frankenstein in his experimentations with the fringes of life, has become a cultural icon from page to stage to screen, and beyond. In taking it as inspiration for the theme of the delayed Critical Legal Conference 2021, Frankenstein’s monster is reformulated as a rich and productive concept that encounters many of the multiple and profound tensions of modern law.

Frankenstein’s monster is typically characterised by the joining together of dead parts to constitute a reanimated whole, brought (back) to life by the power of modern science. As a conceptual figure, it thus becomes a notion of both unity and separation, of life and death, and of the power of reason to structure and animate otherwise individual and decaying parts. Rendered as a form of law—as a Frankenlaw—it conjures questions of detachment and community, of touching and separation, of independence and being bound, of unity and corporation, of the rational resolution of multiplicity—and of the modern social order: a divided whole, a community of atomistic modern subjects under a single, sovereign hierarchy.

Partaking in critical legal studies at Dundee, in the temporal shadow of Mary Shelley’s nascent imagination, it seems appropriate to let the theme of Frankenlaw permeate our reflections. To think with Frankenlaw is to encounter questions of corporate personhood, of the relationship between life and science, of bodies and their parts, of post-state or post-sovereign modes of power, of law as dead things (texts, buildings, victims) compiled and brought to life in different ways, of the possibility of unifying plurality, of community and modern subjecthood. It is an invitation and an opportunity to construct new concepts and modes of legal thought out of dead and useless ones, to animate our encounters with law in controversial and provocative ways, to seek to go beyond the boundaries of reason and modernity and see what we find.

Huddled around the thought of law, the dark of the uncritical creeping in, we shall make ghost stories of our own—we shall conjure for one another our own terrifying and inspiring visions … of Frankenlaw!

Plenary Information

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February 25, 2021

Call For Papers: International Journal for the Semiotics of Law, Roundtables

Call for Papers: International Roundtables for the Semiotics of Law--IRSL 2021. The roundtables are scheduled for June 17-18, 2021, online. Frank Fleerackers is the organizer, and the Leuven University Faculty of Law will host the event, which is in honor of Jan M. Broekman's 90th birthday.


More information here.


Newly Published: Sal Nicolazzo, Vagrant Figures: Law, Literature, and the Origins of the Police (Yale University Press, 2021) @yalepress

Sal Nicolazzo, University of California, San Diego, has published Vagrant Figures: Law, Literature, and the Origins of the Police (Yale University Press, 2021). Here from the publisher's website is a description of the book's contents.
In this innovative book demonstrating the important role of eighteenth-century literary treatments of policing and vagrancy, Nicolazzo offers a prehistory of police legitimacy in a period that predates the establishment of the modern police force. She argues that narrative, textual, and rhetorical practices shaped not only police and legal activity of the period, but also public conceptions of police power. Her extensive research delves into law and literature on both sides of the Atlantic, tracking the centrality of vagrancy in establishing police power as a form of sovereignty crucial to settler colonialism, slavery, and racial capitalism. The first book in several generations to address policing and vagrancy in the eighteenth century, and the first in the field to center race and empire in its account of literary vagrancy, Nicolazzo’s work is a significant contribution to the field of eighteenth-century literary and cultural studies.


 


February 24, 2021

Gould on Natural Law and the "Resistance": A Normative Approach to the Skywalker Narrative in "The Last Jedi"

James Gould, University of Plymouth, School of Law, Criminology, and Government, has published Natural Law and the ‘Resistance’: A Normative Approach to the Skywalker Narrative in The Last Jedi, at 34 International Journal for the Semiotics of Law 357-375 (2021). Here is the abstract.
The motion picture The Last Jedi involves important decisions and actions taken by the protagonist of the original Star Wars trilogy, Luke Skywalker. It will be argued that Luke’s narrative in The Last Jedi can be explored through analysing new natural law thought. In particular it draws on Robert P. George’s discussion of the good (human flourishing) to consider whether the opposition provided by Luke Skywalker can been seen as a successful form of opposition to restore public morality. The contrast between Skywalker’s morality and the behaviour of the First Order will be established. It will be argued that the Skywalker narrative symbolises public morality against the politics of the First Order. It will be analysed whether Luke’s sacrifice in The Last Jedi can provide legal restraint to a militant invading force. This will further be shown to be helpful to legal philosophy in negotiating the boundaries over natural rights. As such, it will be shown that key features of George’s natural law reasoning can be usefully applied to examine Luke’s actions, and this will shed light upon concepts such as liberty, sacrifice and fear. Legal idealism in the form of natural law will provide further insight into the jurisprudence that pervades Luke’s narrative arch to demonstrate the film’s wider relevance.

February 23, 2021

Zhou on The Historical and Formal Foundations of Canadian Constitutional Law @hanruzhou

Han-Ru Zhou, University of Montreal, has published The Historical and Formal Foundations of Canadian Constitutional Law in F. Chevrette and H. Marx, Constitutional Law: Fundamental Principles - Notes and Cases (Thémis), 2020. Here is the abstract.
Canadian constitutional history, since France ceded Canada to the British Crown, can be divided into five broad stages: the beginning of the British colonial regime, the establishment of “responsible government,” the establishment of the federal system, independence, and finally federal-provincial relations and patriation of the Constitution. The Constitution of Canada is made of a number of components that include certain British Acts and decrees, certain federal and provincial laws, constitutional conventions, the common law and case law, and, to a lesser extent, certain secondary sources, such as legal commentaries and literature, and federal-provincial agreements. The purpose of this chapter is twofold. On the one hand, it is to conduct a very brief review of the major periods of Canadian constitutional history and, on the other, to present the various formal components of Canada’s Constitution.
Download the chapter from SSRN at the link.