A plethora of attorneys on the Hallmark Mystery Movie mini-series Darrow & Darrow. Lawyer characters include Joanna Darrow (Wendie Malick), her daughter Claire (Kimberly Williams-Paisley), and in the fourth episode, their client Cassie Piper (Elysia Rotaru), an attorney accused of insider trading, and then murder.
There are, of course, also prosecutors and judges, and paralegals. It's a well-acted series; watch for the relationships and the romance.
Via Sam Brunson at Loyola Chicago Law, this piece by Leandra Lederman, Indiana University School of Law, about Superman and his tax problems. Published at The Surly Subgroup.
In May It Please the Court, artist Xavier Cortada portrays ten significant decisions by the Supreme Court of the United States that originated from people, places, and events in Florida. These cases cover the rights of criminal defendants, the rights of free speech and free exercise of religion, and the powers of states. In Painting Constitutional Law, scholars of constitutional law analyse the paintings and cases, describing the law surrounding the cases and discussing how Cortada captures these foundational decisions, their people, and their events on canvas. This book explores new connections between contemporary art and constitutional law. Contributors are: Renée Ater, Mary Sue Backus, Kathleen A. Brady, Jenny E. Carroll, Erwin Chemerinsky, Xavier Cortada, Andrew Guthrie Ferguson, Leslie Kendrick, Corinna Barrett Lain, Paul Marcus, Linda C. McClain, M.C. Mirow, James E. Pfander, Laura S. Underkuffler, and Howard M. Wasserman.
New from Katharina Isabel Schmidt of Yale Law School and Princeton University: Theodor Sternberg and the Closet of Conceptualism at the blog History/Sexuality/Law. The piece explores the relationship between law and love through the eyes of German-Jewish jurist-turned-sexologist Theodor Sternberg.
The goal of this Article is to introduce a comprehensive methodology for the analysis of visuals used for communication in legal works, by which I mean transactional and litigation documents, legal instruments, primary and secondary sources of law, and legal informational materials. The new methodology has the following steps drawn from visual rhetoric, visual literacy, and mise en scène studies: Immediate Visual Context, Analysis of Meaning, Taxonomy of Purpose and Function, Immediate Verbal Context, Visual Cultural Context, Mise en Scène and the Rhetorical Topic of Arrangement, Visual Rhetoric and the Ethical and Professional Propriety of the Work. My intent in this Article and the methodology it presents is to examine visual elements as visuals, not as a translation or alternative form of verbal communication. The approach of trying to translate visual works into verbal arguments or verbal elements of legal reasoning limits the scope and the effectiveness of the visual works, because communication through visuals employs a separate visual language, and not in a literal or verbal sense. The methodology proposed in this Article is a set of tools that can help verbally-oriented law-trained writers to become better readers, evaluators, and creators of visual communications in the law. Keywords: visual rhetoric, visual legal rhetoric, visual literacy, multimodal, multimodality, proactive, Proactive Law, visualization, Legal Design, visual context, verbal context, visual cultural context, visualization in contracts, cartoon contracts, comic book contracts, Mise en Scène, diagrammaticsDownload the article from SSRN at the link.
A human body grows and changes but remains the same body. The same is true of other organisms, even though some transform dramatically. Metamorphosis is a poetic and mythological conceit of identity, change, and continuity. It applies just as well to the law of contract and helps us understand the power of the contract law canon and the conventional understanding of the legal history of contract. The ideas probably hold true for private law generally, but the focus is on Anglo-American contract law with a foray into Scots private law. Three aspects of mythology and metamorphosis are highlighted. First, the conventional understanding of legal history shapes what the law is. In the story of legal development, we see an implicit notion of progress — with missteps and complications of plot, but with the conviction that eventually the law, like any myth, will work itself out in a way that is right — not necessarily a way that is good but instead a way that fits with society. And in any system based on case law, this conventional understanding of legal development shapes the law itself. Second, the force of this conventional understanding is scarcely lessened by demonstrable falsity. Classic books, lectures, and cases illustrate the idea that historical inaccuracy is an insignificant check on the power of myth. Finally, myths consist not only of explanatory plotlines; they also draw on characters and settings that reflect and inspire the society they serve. Legal myths are no different. Understanding legal mythology requires an attentive ear and a sharp eye for the characters, as well as the storytellers. The reasonable man is not the same as the reasonable person (or is he — a metamorphosis?), and in any case is not the same as the bonus paterfamilias or bon père de famille—the good father of the family, or good family man, the comparable figure of Roman and civil law. Setting matters as much: the heritage of kings and lords, and judges and Westminster Hall, makes for different offspring than that of Rome and Continental learning, of wise thinkers and treatise authors, of Parliament House and institutional writers. When law is understood as a humanistic and rhetorical discipline, the force of myth, in all its aspects, is only natural.Download the article from SSRN at the link.
Legal systems can be metaphorically taken as semantic and pragmatic enclosures. The ancient world has given us at least three literary loci that display the self-disruptive significance of this kind of metaphor if assumed as a practical guideline in the attempt to steer human experience. The first such loci can be traced in biblical Eden; the second one in the Phaeacian garden described in Homer’s Odyssey; the third in the stories of the first and second mythical Athens included in Plato’s Timaeus and Republic. In all these tales, human beings ineluctably end up straying across the semantic-spatial borders which certain categories and rules have given them to encompass their experience. All these literary loci offer both a semio-cognitive and a constitutional lesson for lawyers and sovereigns. My intention is to exploit these lessons to show that the most relevant limit of legal systems, if taken as semantic and pragmatic enclosures, consists precisely in their inability to constitutively limit themselves and their semiotic borders. This inaptitude is due, in my view, to the semiotic ‘exceedance’ of the phrastic, or descriptive parts of legal rules even more than the semantic vagueness of the values underlying their legitimacy. Any attempt to define the semantic and spatial boundaries of human experience by means of verbal enunciations implies the use of categorical schemes to define the legitimate and/or forbidden behaviors. But categorical schemes, in turn, comprise boundaries that draw protean verges between the inside and the outside of each category. The categorical ‘inside’ compellingly tends to exceed its borders so as to protrude out toward what is outside the category. In turn, the ‘outside’ shows, more often than not, continuities with the axiological/teleological patterns underpinning the semantic boundaries of legal rules. Any attempt to limit the competence/extension of law, if taken in its semantic/spatial significance, would seem to unveil what law could or should be, but is not. Relying on the above literary loci, I will try to demonstrate that this apparently contradictory implication is inherent in the dialectic between equality/universality and difference/plurality that makes up categorization itself, and thereby the semiotic prerequisites to considering any legal rule.Download the article from SSRN at the link.
With this Article, I have completed a trilogy of studies on the jurisprudence of Thomas Aquinas. In “Thomas Aquinas: Definitions and Vocabulary in His Treatise on Law,” I conducted a careful examination of Thomas’ juristic language to conclude that Aquinas viewed law rather as a senior administrator might. In “Thomas Aquinas (1225-1274),” I reviewed the main lines of Aquinas’ constitutional thought. In this Article, I focus intensely on a narrow but compelling theme: Thomas’ thought on the legitimacy of tyrannicide. I conclude that Thomas justifies tyrannicide while trying at the same time to preserve good order. The touchstone of his analysis throughout is the common good. If the ruler breaks faith the common good, the ruler has thereby committed sedition and appropriate action might be taken by private citizens and public authorities.Download the article from SSRN at the link.
Anthony Trollope (1815-1882) resides in the pantheon of nineteenth century English literature. Overcoming a miserable childhood, he became an official with the post office and is credited with introducing the familiar red mailbox. While working full time in his postal position until 1867, he still managed to publish 47 novels, travel books, biographies, short stories, collections of essays, and articles on various topics. Trollope has been described as the novelist of the ordinary for his realistic description of English society. Law and legal issues flow through Trollope’s fiction. The legal system held a special importance to him as the skeleton upholding the social and political framework of the country. Over one hundred lawyers appear in his work and eleven of his novels feature trials or hearings. The law intrigued and exasperated him. Along with the lawyers and legal issues he depicts are ideas of the law and legal system that are part of elaborate philosophical and jurisprudential traditions, which he recognized. This article examines Trollope’s changing attitude toward lawyers. It describes the structure of the Bar in terms of class, status and reputation. Trollope believed the legal system should ensure justice, and those who labored in the law should be the vehicle of that pursuit. Justice for Trollope was the meting out of rewards and punishments as the consequence of a right or wrong decision. However, the law, as he depicted it, was often an impediment to this process, and lawyers were unreliable guides. Initially Trollope portrayed lawyers critically as caricatures as evinced by such names as Alwinde, O’Blather, Slow & Bidewhile, Haphazard, and Chaffanbrass. He was outraged that barristers (lawyers who appear in court) put loyalty to their clients ahead of the search for truth and justice. The adversary system was flawed as the enactment of laws in accord with the laws of nature assumes an inbuilt moral compass in humans that contains self-evident truths of right and wrong. Trollope felt there was no reason why a right-minded person could not intuitively recognize the truth, so criminal law’s adversary system was unnecessary. The legal system sought not the discovery of the truth but was more interested in aiding the guilty defendant to escape punishment. Another grievance was that cross examination in a trial submitted honest witnesses to torture and distracted them from testifying as to the truth. As he matured as a writer and achieved success, Trollope’s understanding and appreciation of the legal profession changed. He met and become friends with leaders of the Bar, and they influenced his descriptions of lawyers, who became realistic and often admirable human beings. Beyond the legal problems of its characters, Trollope’s later novels incorporated the social, political, and jurisprudential issues of the times and engaged the Victorian legal culture in a broader sense of history, traditions, continuity and change. Trollope’s attention to the faults of the adversary system had its source in principles of natural law, which posited that God-given universal axioms of right and wrong gave individual guidance or a map for reaching the right result in a legal controversy. Natural law principles were challenged during the Victorian era by positivist notions that law is what the statute books say, and legislators enact. These divisions lurk in the background of his later portraits of lawyers and the legal system. In his later period Trollope created a realistic characterization of the legal profession at the time that offered universal insights into human nature.Download the article from SSRN at the link.
This is a translation of ‘Der Mensch im Recht’, Gustav Radbruch's inaugural lecture at the University of Heidelberg in November 1926, translated with an Introduction by Valentin Jeutner. Radbruch addresses the way in which law's image of the human informs the operation and content of law.Download the translation of the lecture from SSRN at the link.
Putting yourself in other people’s shoes is a highly evolved cognitive capacity. And it can be argued that it is one of the important tasks of those who make decisions for others which are meant to be fair, including judges and arbitrators, and all manner of other adjudicators. Now, one of the social functions of literary fiction is precisely to allow the reader to experience the story, a situation, from the protagonists’ perspective, to help her see what the world looks like standing where they do. Historically, this played a significant role in advancing women’s rights and minorities’ rights and to end a range of inhumane treatments, including slavery: works of literature got the general public to understand what it really is like to be in the shoes of those who suffer from these discriminations, from those exactions. So why, then, not encourage international adjudicators to connect with literature, with literary works, and remember the ‘centrality of texts to the form and substance of a community’s moral and social life’ (West 1988, 131) – texts which of course are not only legal texts? Study how literary works are constructed, their rhetoric, and you will be a better advocate, a better judge; study what literary works have to say, the societal functions and figures and values and aesthetics that they experiment with, and you may be a better international adjudication scholar. This paper offers an introduction to this way of thinking.Download the article from SSRN at the link.
Tressie McMillan Cottom has published The Black Ton: From Bridgerton to Love & Hip-Hop at Medium. Here's an excerpt.
The Black ton exists. It is a social world with clearly defined norms and beliefs. Like Regency England, that social world relies almost singularly on heteronormative marriage for identity and gatekeeping. Children are groomed for marriage in ways that are modern but would not feel completely foreign to Bridgerton’s conflicted belle à la ton, Lady Daphne Bridgerton. There are cotillions and informal matchmakers and child-bearing expectations. The Black ton has its social institutions and its organizations: from Jabberwockys to Sigma Pi Phi. There are distinctions between “new money” and inherited status. And, befitting any ton worth its salt, there are parties. And, like any elite status group, the Black ton cultivates loyalties and inspires aspirational fantasies. I would go so far as to say that everything from reality television shows like the “Real Housewives of Atlanta” to hip-hop capitalist fantasies are about latent desires for what the Black ton represents. In fact, television producer Mona Scott-Young may be Shonda’s aspirational Black ton equivalent. Scott-Young produces the wildly successful “Love & Hip Hop” reality series. It is a show that melds the desire of the Black ton with the aesthetics of hip-hop culture. Every sub-culture just uses the tools they have to make their own version of the same fantasy: A girl of good parentage eventually marries a Duke or a platinum rapper because the Ton requires it to reproduce itself.
Our fascination with the trickster figure, whose presence is global, stems from our desire to break free from the tightly regimented structures of our societies. Condemned to conform to laws and rules imposed by governments, communities, social groups and family bonds, we revel in the fantasy of the trickster whose energy and cunning knows no bounds and for whom nothing is sacred. One such trickster is Brer Rabbit, who was introduced to North America through the folktales of enslaved Africans. On the plantations, Brer Rabbit, like Anansi in the Caribbean, functioned as a resistance figure for the enslaved whose trickery was aimed at undermining and challenging the plantation regime. Yet as Brer Rabbit tales moved from the oral tradition to the printed page in the late nineteenth-century, the trickster was emptied of his potentially powerful symbolism by white American collectors, authors and folklorists in their attempt to create a nostalgic fantasy of the plantation past. American Trickster offers readers a unique insight into the cultural significance of the Brer Rabbit trickster figure, from his African roots and through to his influence on contemporary culture. Exploring the changing portrayals of the trickster figure through a wealth of cultural forms including folktales, advertising, fiction and films the book scrutinises the profound tensions between the perpetuation of damaging racial stereotypes and the need to keep African-American folk traditions alive. Emily Zobel Marshall argues that Brer Rabbit was eventually reclaimed by twentieth-century African-American novelists whose protagonists ‘trick’ their way out of limiting stereotypes, break down social and cultural boundaries and offer readers practical and psychological methods for challenging the traumatic legacies of slavery and racism.
Monsters, Law, Crime, an edited collection composed of essays written by prominent U.S. and international experts in Law, Criminology, Sociology, Anthropology, Communication and Film, constitutes a rigorous attempt to explore fertile interdisciplinary inquiries into “monsters” and “monster-talk,” and law and crime. This edited collection explores and updates contemporary discussions of the emergent and evolving frontiers of monster theory in relation to cutting-edge research on law and crime as extensions of a Gothic Criminology. This theoretical framework was initially developed by Caroline Joan “Kay” S. Picart, a Philosophy and Film professor turned Attorney and Law professor, and Cecil Greek, a Sociologist (Picart and Greek 2008). Picart and Greek proposed a Gothic Criminology to analyze the fertile synapses connecting the “real” and the “reel” in the flow of Gothic metaphors and narratives that abound around criminological phenomena that populate not only popular culture but also academic and public policy discourses. Picart's edited collection adapts the framework to focus predominantly on law and the social sciences.
More here at the website.
Pragmatism, Logic, and Law offers a view of legal pragmatism consistent with pragmatism writ large, tracing it from origins in late 19th century America to the present, covering various issues, legal cases, personalities, and relevant intellectual movements within and outside law. It addresses pragmatism’s relation to legal liberalism, legal positivism, natural law, critical legal studies (CLS), and post-Rorty “neopragmatism.” It views legal pragmatism as an exemplar of pragmatism’s general contribution to logical theory, which bears two connections to the western philosophical tradition: first, it extends Francis Bacon’s empiricism into contemporary aspects of scientific and legal experience, and second, it is an explicitly social reconstruction of logical induction. Both notions were articulated by John Dewey, and both emphasize the social or corporate element of human inquiry. Empiricism is informed by social as well as individual experience (which includes the problems of conflict and consensus). Rather than following the Aristotelian model of induction as immediate inference from particulars to generals, a model that assumes a consensual objective viewpoint, pragmatism explores the actual, and extended, process of corporate inference from particular experience to generalization, in law as in science. This includes the necessary process of resolving disagreement and finding similarity among relevant particulars.Download the introduction from SSRN at the link. The book is available from Lexington Press. Here is a link to the publisher's website.
This paper was delivered as a keynote talk at the 13th Annual Doctoral Forum on Legal Theory, 'Sirens + Silences: Law in Lockdown', co-hosted by Melbourne Law School and UNSW Law. Responding to the convenors' invitation to reflect on "a year marked by upheaval and stasis", it explores how legal scholars in various settings might plan a route out of the global COVID-19 pandemic that is not simply a return home. Five legal and political "songs" in broad circulation are identified – songs of salvation, separation, suspension, stagnation, and absurdity – and arguments made for resisting some of their appeals. Instead, the paper suggests, legal scholars might do well to look to the commonplace normativity of survival: the ceaseless static of making do and getting by. By planning and organizing around some of the ways that people have lived the pandemic, legal scholars might perhaps become attuned to possible ways of living lawfully without casting sectors of the population into surplus.Download the essay from SSRN at the link.
Lawyers use history in different ways. This is partly because judges are directed to decide consistently with what has been decided before, such that continuity with the past is a matter of legal duty. But, as Maitland said, historical research serves the purpose of explaining and therefore lightening the pressure that the past exercises on the present, and the present upon the future. This article considers – including by reference to images of original documents – the multiplicity of ways in which lawyers use history, including the need for a contextual understanding of judgments, the deployment of expert evidence by legal historians, and the haphazard and imperfect reporting of judgments. It considers three quite different sources of Entick v Carrington, including one manuscript only recently published, and how that decision has been used to address modern disputes.Download the article from SSRN at the link.
This Article examines the history of a Vietnam War-era case: the court-martial of Dr. Howard B. Levy. The U.S. Army court-martialled Dr. Levy for refusing to teach medicine to Green Beret soldiers and for criticizing both the Green Berets and American involvement in Vietnam. Although the Supreme Court eventually upheld Levy's conviction in Parker v. Levy, its decision obscures the political content of Levy's court-martial and its relationship to the war. At the court-martial Levy sought to defend himself by showing that his disparaging remarks about the Green Berets, identifying them as "killers of peasants and murderers of women and children," were true and that his refusal to teach medicine to Green Beret soldiers was dictated by medical ethics, given the ways in which the soldiers would misuse their medical knowledge. Ultimately, Levy put the war itself on trial by arguing that had he trained the soldiers he would have abetted their war crimes. This Article seeks to recapture the history of the Levy case as a case about the Vietnam War. Yet the case was also about much more. The Article shows how imagery evoking beliefs about race and racial difference, war, frontier violence, and medicine and healing all came into play in the Levy case. It also explores the manner in which the court-martial became a forum in which the Vietnam War and aspects of U.S. Army policy and conduct were debated, and in which that debate was eventually suppressed. Ultimately, this Article begins the exploration of how American legal institutions coped with the crisis of political and moral legitimacy that they confronted in the late 1960s.Download the article from SSRN at the link.
This Article presents the findings of a content analysis of 86 family law casebooks published in the United States from 1960 to 2019. Its purpose is to critically assess the discipline of family law with the aim of informing our understandings of family law’s history and exposing its ideological foundations and consequences. Although legal thinkers have written several intellectual histories of family law, this is the first quantitative look at the field. The study finds that coverage of marriage and divorce in family law casebooks has decreased by almost half relative to other topics since the 1960s. In contrast, pages dedicated to child custody and child support have increased, more than doubling their relative share. At the same time, the boundaries of family law appear to remain quite stubborn. Notwithstanding sustained efforts by family law scholars and educators to restructure the field of family law so that it considers additional domains of law affecting families (such as tax, business, employment, health, immigration, and government benefits), the core of the academic field of family law has remained relatively static in the past 60 years. Marriage, divorce, child custody, and child support continue to dominate the topics presented in family law casebooks, representing 55% to 75% of their content since the 1960s.Download the article from SSRN at the link.
This special issue of the Journal of Romanian Studies examines law as a social institution and the ways in which it intersects with the larger social, historical, political and economic world. The articles included here mostly explore the intersections between law, history, and justice, reject positivist and doctrinal analyses of law, and focus on “living law” and the complex interactions between law and social issues, including how law is created, interpreted and implemented, and how individuals and organizations live, shape and evade it in everyday interactions within and outside of the state. We bring together scholars from several disciplines in humanities and social sciences, including anthropology, comparative literature, history, political science, socio-legal studies, and sociology. Regardless of their academic field, the contributors engage in interdisciplinary studies of “law in action” located in various historical settings and different types of political regimes.Download the article from SSRN at the link.
This short article was written as part of a Festschrift for Susan Haack (published in the journal, Cosmos + Taxis, vol. 8 (2020)). It focuses on the intricacies of statements of truth within and about law. Truth about particular legal propositions often turns on some combination of “will” and “reason”: the decisions made by officials authorized to make choices for the community, on one hand, and what follows from those decisions, as a matter of the distinct form of practical reasoning known as “doctrinal reasoning.” And where will and reason conflict, sometimes there may be, if only temporarily, more than one legal truth.Download the essay from SSRN at the link.
The Office of Legal Counsel (OLC) justifies its expansive view of presidential war power by citing long lists of American military conflicts. But OLC misinterprets these events. This article surveys every U.S. conflict between 1789 and 1860 and evaluates whether the conflict was authorized by Congress, a limited defensive measure under Article II, or possibly unconstitutional. Viewed in its entirety, early American history does not support the OLC position. This article calls for a more restrained approach to war power that is based on the original meaning of the Declare War Clause, informed by a more accurate interpretation of history.Download the article from SSRN at the link.
This article seeks to make an original contribution to criminology and the sociology of crime and punishment by elaborating the ‘assemblage’, a concept which originates in the collaborative poststructuralist philosophy of Gilles Deleuze and Félix Guattari and discussing its ontological implications for researching crime. I will first introduce the concept and its application. I then discuss the relationship between the assemblage and Michel Foucault’s concept of the dispositif. I demonstrate how the assemblage could be used to analyze crime events and discuss questions of change and scale within the assemblage. I conclude by outlining some implications for how adopting this concept would change the way we practice and research crime and punishment.Download the article from SSRN at the link.
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 essay from SSRN at the link.
How Americans talk when they talk about #MeToo is often deeply rooted in the law—even in non-legal settings, participants in the #Me-Too conversation often deploy legal definitions of victims and perpetrators, reference legal standards of proof and the role of legal forums, draw explicit or implicit comparisons to legal punishments, and derive meaning from legal metaphors and legal myths. In this essay, I identify and assess the deployment of such law talk to help understand both how legal rhetoric may facilitate the national #MeToo conversation and related legal reforms, but may also simultaneously limit and obscure some of the #MeToo’s more transformative possibilities. Such critical engagement seeks to open space for selective pushback, including initial thoughts on the possibilities of reclaiming colloquial law talk to better match the interests at stake in non-legal settings as well as bringing to the forefront the therapeutic, informative, and structural issues law talk might crowd out.Download the article from SSRN at the link.
Autobiographies are now popular forms of literature, but for those in the legal profession, this tradition has a much longer history. This article examines the memoir written by Lord Nathaniel Lindley (1828–1921). Lord Lindley is famed for his writings in company law and for his judgments in a considerable number of landmark cases in the court of appeal and in the house of lords. The article uses Lindley’s memoir alongside other archival records to shed some much-needed light on Lindley’s background, his relationships and his private life. In doing so, it raises points of note about his life but also some wider methodological concerns. Lindley’s memoir is key in unearthing new insights into Lindley’s life. In this document, he explains how he was able to reach the upper echelons of the legal profession. This article considers the way that autobiographies can be used to present certain narratives. The analysis shows how the evidence presented in these sources can be triangulated and combined with other sources to overcome natural biases and flaws in order to create a fuller and more balanced legal biography. Overall, the article considers the value of autobiographies and memoirs in the construction of a legal biography.
Download the article from SSRN at the link.
When looking at a sexualized image the viewer is both subject and object of the artwork because the gaze of the viewer is turned back on themselves. Thus, the Supreme Court's jurisprudence on obscene speech tells us more about the viewer of an image than we do about the image itself. The existence of the gaze is revealed in the Court’s obscenity jurisprudence and its inability to settle on a definition of obscenity for most of the 20th century. In all of these instances the court looks upon pornographic materials as the object upon which the court gazes, but in reality the nature of these materials flips the view so the Court becomes the object on which pornography gazes At the same time the fixation on criminalizing obscenity has led to the silencing of the models who appear in sexual images. Drawing on social theories, this article argues that the failure of obscenity law was inevitable because at the heart of obscenity lies unending subjectivity. This subjectivity means that obscenity should be protected under the First Amendment. But it also proposes changes to the law that will continue to protect children and give voice to models.Download the article from SSRN at the link.
This essay is one of thirty-five in the book Hamilton and the Law: Reading Today’s Most Contentious Legal Issues Through the Hit Musical(Cornell University Press, Lisa A. Tucker, ed., Oct. 2020). This essay considers the possibility that Hamilton: An American Musical, the sensation that has captivated so many, plus its soundtrack that plays on in our heads and on our devices, will stir and influence United States Supreme Court justices as they interpret the U.S. Constitution. Our Supreme Court justices have always been interested in the lives and the words of the Founding Fathers. For example, The Federalist essays of 1787-1788, most of them penned by Alexander Hamilton, have been cited in hundreds of Court decisions. So have other Founding-era materials, including many words from James Madison, the so-called Father of the Constitution. But as Justice Robert H. Jackson wrote in the 1952 Steel Seizure Case (Youngstown Sheet & Tube Co. v. Sawyer), this judicial enterprise often is not illuminating—“a Hamilton may be matched against a Madison”; “Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.” When the musical Hamilton opened on Broadway in 2016, Hillary Clinton was on her way to being elected president. It was predictable that she would get to appoint new Supreme Court justices, and that they would be, as she is, inclined to read expansively the Constitution’s provisions defining national government powers. These newcomers would constitute a Supreme Court in the Hamilton era. They would see the musical, hear the songs, be stirred, and perhaps even quote from and cite to Hamilton. U.S. politics took a different path. Yes, many of the justices have seen Hamilton. More liberal, nationalistic, Alexander Hamilton-admiring justices have praised it. More conservative justices have had less to say about it. In Supreme Court decisions through June 2019, there is not much trace of Hamiltonian—forefather or modern musical—influence.The full text is not available for download.
This Michigan Bar Journal column discusses the ejusdem generis canon of statutory construction, using a courtroom-based Harry Potter parody as its vehicle.Download the article from SSRN at the link.
This paper, a substantially revised version of a paper previously entitled (and posted as) “A Critical Examination of the Distinction between Interpretation and Construction,” argues not only that the justifiably prominent and valuable distinction between interpretation and construction loses much of its value when applied to technical language, but also that the point of the distinction is undercut by the existence, following Hart and Searle, of constitutive legal language. When legal instruments, whether contracts or statutes or constitutions, create types of behavior that would otherwise not exist, as opposed to regulating antecedently existing behavioral possibilities, it becomes impossible to interpret the language that constitutes behavior without taking into account all of the legal goals and principles that proponents of the distinction would relegate to the “construction zone.” For such constitutive language, just as with technical language, all of the values, aims, and principles of law in general or of a particular legal provision pervade both sides of the distinction, sharply reducing the importance of the distinction for such language.Download the article from SSRN at the link.
The editors of the 2020 Green Bag Almanac and Reader mined Justices' papers held by the Library of Congress for handwritten documents to feature and invited essays about each one. This essay is a gloss on Vern Countryman's letter to Justice William O. Douglas (Jan. 12, 1944) recommending a law student from the University of Washington to serve as a clerk. The law student was Lucile Lomen, who became the first woman to clerk for a Supreme Court Justice. The essay offers biographical tidbits and historical context—including Lomen's childhood in Nome and Seattle life during World War II. Along with shipbuilding and troop movements, the Seattle experience included the internment of Japanese Americans (Gordon Hirabayashi was a student at the UW at the same time Countryman and Lomen were there), an issue that went East to the Supreme Court, as the young clerks did. As a Seattleite whose parents were born the same year as Lomen, I also weave in some personal history.Download the essay from SSRN at the link.
The consequences of first-world globalization on people of color will often be pernicious and will not only affect the lives of Latinas/os in the Americas, the Caribbean, and other areas, but it will have an indirect impact on these groups within the United States. Latina/o communities within this country are pan-ethnic, with ties here and to their homelands. These groups directly affect, and are affected by Latinas/os throughout the world. This reality, among others, demonstrates that Latinas/os residing in this country exist, in many respects, in a transnational status "typically retaining strong material connections to, and cultural identifications with, their homelands' traditions, issues, concerns, hopes and aspirations." These characteristics have global effects that are not limited to trade, which includes the movement of capital to and from transnational regions and the migration of thousands of individuals, it will also affect perceptions of identity, nationality, and democracy.Download the article from SSRN at the link.
The Law and Society Association has issued a Call For Submissions for its 2021 Meeting in Chicago and virtually. The dates are May 27-30, and the theme is Crisis, Healing, Re-Imagining. Here is a link to LSA's website and information about the Call.
The variety of legal history published in general-interest law journals tends to differ from the variety published in history journals. This study compares the two varieties by examining footnote references in five general-interest law journals, and footnote references in two journals of legal history. In the law journals, cases and statutes accounted for the single largest group of footnotes (approximately 35%), followed by references to other law journal articles (nearly 25%). In the legal history journals, these two categories accounted for less than 20% of all references; primary and secondary historical materials predominated in the footnotes. To be sure, legal decisions and law journal articles can also be historical sources: rather than being used as evidence of what the law is, they might be studied for what they reveal about legal reasoning or rhetoric in an earlier age. However, in most legal historical research that attends primarily to cases and statutes, these materials figure as evidence of the state of the law at that time. When the analysis relies on legal sources to trace the development of a certain doctrine, and treats them as sufficient to account for that development, the result is the distinctive style of research that I seek to contrast against approaches that cast the net of historical inquiry more widely. To account for these different approaches, I suggest that law professors rely on a notion of proximate causation as a historiographic method. According to this approach, legal developments are proximately caused by other developments in the legal sphere, and other social and cultural developments play a more attenuated role, such that their influence is less significant. By proposing this explanation, I hope to draw more attention to assumptions about causation in legal historiography, and to question their persuasive force.Download the article from SSRN at the link.
In recent years more and more attention has been paid to the various implications of the so-called ‘material turn’ for legal history. While the ‘filing approach’ focused upon the role of ‘paperwork’ in the making of law, the legal historical methodology recently integrated the book history claim to look at the interconnection between form and content, considering legal books as material objects, especially dealing with the circulation of law and legal ideas. This article offers another approach to using materiality as a tool for doing legal history. It focuses on the interdependence between handwritten notebooks and legal thinking. In particular, I explore the notetaking and excerpting practices of one of the leading figures of the cultural, political and religious life of the first half of the Italian Settecento, Lodovico Antonio Muratori (1672-1750), showing how this practice had an impact on the production of Italian 18th-century legal thinking.Download the essay from SSRN at the link.
Explores similarities between statutory interpretation techniques used by courts, and principles of Biblical interpretation used by Bible scholars.Download the article from SSRN at the link.
Lawyers and historians often quarrel about how to use history in constitutional interpretation. Although originalists are often involved in these disputes today, the disagreements predate the rise of conservative originalism. Lawyers attempt to escape the criticism of historians through two standard stories that explain the differences between what lawyers and historians do. According to the first story, lawyers employ specialized skills of legal exegesis that historians lack. According to the second, lawyers require a usable past that historians will not provide. These stories paint a false picture of how historical work is relevant to constitutional argument. And by emphasizing lawyers’ professional differences from historians, they disguise disagreements within the class of lawyers and legal advocates about how to use (and how not to use) history. When lawyers try to stiff-arm professional historians, often they are actually engaged in long-running disputes with other lawyers who disagree with their interpretive theories, their methods, and their conclusions. To explain how lawyers and historians actually join issue, this article uses a familiar idea in constitutional theory—the modalities of constitutional argument. With respect to most of the modalities, historians are as well-equipped as lawyers. Indeed, many disputes between lawyers and historians do not concern the distinctive skills of lawyers at all, but rather controversial theories of interpretation that many lawyers do not accept either. The more that lawyers try to assert the methodological autonomy of law from history, the more they will fail, ironically, because of law's distinctively adversarial culture. In order to win arguments, lawyers will search for ever new historical sources and approaches, and they will insist on bringing historians back in to undercut the claims of their opponents. Similarly, the claim that lawyers need a usable past fails because it employs history for too limited a purpose and treats too much of history as unusable. Rather, the best way for lawyers to obtain a usable past is to recognize the many modalities of historical argument, and the many different ways to use history in legal argument.Download the article from SSRN at the link.
The UCLA School of Law is accepting applications for a FRONTLINE Fellow for the Documentary Film Legal Clinic.
UCLA School of Law
FRONTLINE FELLOW,
DOCUMENTARY FILM
LEGAL CLINIC
Job Description
UCLA
School of Law is seeking a highly energetic and motivated individual with a significant
interest in entertainment, media and intellectual property law to serve as the FRONTLINE
Fellow for the Documentary Film Legal Clinic (Clinic) at the UCLA School of Law.
The FRONTLINE
Fellow will work under the supervision of the Director (“Director”) of the
Clinic, Dale Cohen, who is also Special Counsel to FRONTLINE, and collaborate
closely with the Associate Director of the Clinic, Daniel Mayeda, and other
administrators and faculty to develop clinical, experiential, and pro bono
opportunities that ensure students receive high-quality educational experiences.
The FRONTLINE Fellow will also take on substantial responsibility for the
development and operation of a documentary filmmaker education program –
tentatively titled “What Doc Filmmakers Should Know About the Law”. We
anticipate this program will be offered will offered at documentary film
festivals and other venues beginning in the Spring 2021 semester.
|
About the
Clinic: The Clinic has achieved notable success in its first few years. It has
established partnerships with prominent film organizations, including the Sundance
Institute, the International Documentary Association (“IDA”) and
FilmIndependent (“FI”), each of which regularly refer filmmakers and grantees
to the Clinic for legal support. Students
coming out of the Clinic have secured coveted positions at several of the
best media/entertainment law firms in the country and applications for the
Clinic far exceed the number of available slots. Application from
documentarians have increased with each successive semester and the Clinic’s
clients have achieved notable success, appearing at prestigious festivals,
including the Sundance and South by Southwest film festivals, and airing on
prestige networks, including HBO and PBS.
The Clinic has also worked closely with filmmakers and personnel
responsible for producing films for the award-winning PBS series FRONTLINE. The Clinic
benefits from the many advantages offered by UCLA’s School of Law. Through the Ziffren Institute for Media,
Entertainment, Technology, and Sports Law and other programs, UCLA offers one
of the nation’s most comprehensive and innovative approaches to the study of
entertainment, media, and intellectual property law. UCLA Law is home to many
leading scholars, alums and practitioners in these subjects and our programs,
location and faculty therefore draw a student body with a strong interest in
media, entertainment and intellectual property. The FRONTLINE Fellow will
have the opportunity to join other leaders in these fields on the UCLA campus
here in Los Angeles.
Qualifications:
Candidates must have a J.D. from an ABA-accredited
law school, plus admission to the California Bar or willingness to sit for
the California Bar. Additional work
experience, particularly in relevant areas of the law, the media industry or
a judicial clerkship is desirable, but not required.
The
successful candidate should demonstrate strong verbal and interpersonal
communication skills, as well as the ability to communicate effectively in
writing. The successful candidate should also demonstrate the ability to
establish and maintain effective working relationships within the law school
and university as well as with external partners. In addition, the Fellow
should possess strong time management, organizational, planning skills and a
commitment to educating our students and the documentary film community.
|
Applications:
Confidential
review of applications, nominations and expressions of interest will begin
immediately and continue until an appointment is made. To ensure full
consideration, applications should be
received by 11/21/20 but will be considered thereafter until the position
is filled. Please apply online at https://hr.mycareer.ucla.edu/applicants/Central?quickFind=79422
The
University of California is an Equal Opportunity/Affirmative Action Employer.
All qualified applicants will receive consideration for employment without
regard to race, color, religion, sex, sexual orientation, gender identity, national
origin, disability, age or protected veteran status. For the complete
University of California nondiscrimination and affirmative action policy, see: http://policy.ucop.edu/doc/4000376/NondiscrimAffirmAct
Textualists insist that judges should follow the ordinary meaning of a legal text, and sometimes texts have an ordinary meaning that judges can follow. But sometimes texts have no such thing, in the sense that they are reasonably susceptible to two or more interpretations. Some textualists fall victim to something like the duck-rabbit illusion. They genuinely see a duck; they insist that a duck is the only thing that reasonable people can see. Their perception is automatic, even though it might have been primed, or a product of preconceptions. But reasonable people might well see a rabbit. Various approaches are possible to determine whether we have a duck or a rabbit; most of them do not turn on the text at all.Download the article from SSRN at the link.
One of the most difficult challenges of mature legal systems is the need to balance the conflicting demands of stability and flexibility. The demand for flexibility is at odds with the principle of impartiality, which is considered a cornerstone of the rule of law. In the present article, I explore the way in which the law copes with this dilemma by developing the idea of tolerance of incoherence. I argue that tolerance of incoherence emerges from the interplay between the inferential and lexical-semantic rules that determine the meaning of legal speech acts. I base this argument on an inferential model of speech acts, which I develop through a discussion of graded speech acts, and on the idea that that the use of speech acts is governed by multiple and potentially conflicting conventions. I show how this tolerance allows the law to resolve the tension between dynamism and traditionality, and discuss its sociological and moral implications.Download the article from SSRN at the link.
This paper examines the origins of legal language. It begins with a discussion of language in the civil law system, which originated in Rome, was refined in Byzantium, rediscovered in Italy, codified in Prussia and France, and ultimately spread throughout most of Europe and, via colonialism, to many other parts of the world. The common law, which developed in England, was heavily influenced by Anglo-Saxon invaders, Latin-speaking missionaries, and French-speaking Normans. Its language also took root in much of the world via the British empire. Finally, we discuss what might be called mixed legal systems, and we conclude by speculating on the possible effects of globalization on the languages of law.Download the essay from SSRN at the link.
Since the inadequacy of the traditional theoretical frameworks for the study of the “global transformation of modernity” (Beck) became more and more visible in the last decades of the twentieth century, “culture” has figured prominently in many literature that theorize the post-national condition. Yet despite studying similar phenomena of displacement, fragmentation and hybridization, in legal academia, cultural analysis perspectives have traditionally played a rather marginal role in the discourse on globalization and trans-nationalization. Although some authors have indeed attempted to ope-rationalize the concept of culture in grappling with effects of legal globalization, the emerging field of transnational law never took a significant “cultural turn”. This chapter retraces this disciplinary development and reflects on the use of "culture" in transnational law discourse. While not advocating a more prominent role for the notoriously difficult concept of culture, this brief survey serves as a reminder that the same substantive and theoretical choices that kept transnational law from drawing more heavily on cultural analysis and traditional legal pluralism also may limit its scope and create theoretical blind spots.Download the essay from SSRN at the link.
This is a reminder that the call for
papers for Graphic Justice Discussions 2020, the annual conference of the
Graphic Justice Research Alliance, is closing on 19 October 2020.
The event is being hosted online by
Middlesex University on 8 December 2020, with the theme ‘Graphic Justice in
Times of Crisis’. See full details here: https://graphicjustice.org/gjd-2020/.
The Graphic Justice Research Alliance is
a research community at the intersections of law, comics, and justice.
This essay celebrates Erie's 80th birthday by charting the decision's extremely dynamic significance as a constitutional decision. Newly collected historical evidence shows that "original Erie" was criticized as constitutionally heretical in the 1930s and 1940s . The decision rose to power only in the 1950s and 1960s, carried forward on the powerful legal-process shoulders of Hart and Wechsler. During the 1970s and 1980s, Erie was pushed toward the periphery of constitutional law along with the legal process school itself. Yet in the 21st century, Erie rose from the ashes as political conservatives articulated a forceful "new Erie" myth about separation of powers. The fact that Erie's multiple meanings are so often conflated or ignored reveals a correspondingly prevalent inattention to methods of interpreting precedents. As a matter of legal theory, iconic court decisions offer legal mixtures of stability and dynamism, of legitimacy and politics, that are analogous to statutes, constitutions, and other forms of law. Erie's birthday offers an especially useful chance to think about the untapped possibilities of "precedential originalism" or "living precedentialism," alongside interpretive schools that are well known in other legal contexts.Download the article from SSRN at the link.
The meaning of sex matters. The interpretive methodology by which the meaning of sex is determined matters. Both of these were at issue in the Supreme Court’s recent landmark decision in Bostock v. Clayton County, Georgia, where the Court held that Title VII protects lesbians, gay men, transgender persons, and other sex and gender minorities against workplace discrimination. Despite unanimously agreeing that Title VII should be interpreted in accordance with its original public meaning in 1964, the Court failed to properly define sex or offer a coherent theory of how long-standing statutes like Title VII should be interpreted over time. We argue that long-standing statutes are inherently dynamic because they inevitably evolve ‘beyond’ the original legislative expectations, and we offer a new theory and framework for how courts can manage societal and linguistic evolution. The framework depends in part on courts defining ‘meaning’ properly so that statutory coverage is allowed to naturally evolve over time due to changes in society, even if the meaning of the statutory language is held constant (via originalism). Originalism in statutory and constitutional interpretation typically focuses on the language of the text itself and whether it has evolved over time (what we term linguistic dynamism), but courts should also recognize that the features of the objects of interpretation may also evolve over time (what we term societal dynamism). Linguistic dynamism may implicate originalism but societal dynamism should not, as originalists have assumed in other contexts (such as Second Amendment jurisprudence). Putting our framework into action, we demonstrate, through the application of corpus analysis and linguistic theory, that sex in 1964 was not limited to “biological distinctions between male and female,” as all of the opinions in Bostock assumed, and gender and sexual orientation were essentially non-words. Sex thus had a broader meaning than it does today, where terms like gender and sexual orientation (and other terms like sexuality) denote concepts that once could be referred to as sex (on its own and in compounds). In turn, ‘gays and lesbians’ and transgender people became new social groups that did not exist in 1964. By limiting the meaning of sex to “biological distinctions” and failing to recognize that societal dynamism can change statutory coverage, the Court missed the opportunity to explicitly affirm that the societal evolution of gays and lesbians and transgender people has legal significance.Download the article from SSRN at the link.
Call for Nominations: Harold Berman Award for Excellence in Scholarship
The AALS Section on Law &
Religion seeks nominations for the Harold Berman Award
for Excellence in Scholarship. This annual award recognizes a paper that “has
made an outstanding scholarly contribution to the field of law and religion,”
in the words of the prize rules. To be eligible, a paper must be published
between July 15, 2019 and July 15, 2020. The
author must be “a faculty member at an AALS Member School with no more than 10
years’ experience as a faculty member.” Fellows are eligible, and
self-nominations are accepted. Nominations should include the name of the
author, the title of the paper, a statement of eligibility, and a brief
rationale for choosing the paper for the award.
Nominations should be sent to
Thomas C. Berg (TCBERG@stthomas.edu), Chair of the Berman Prize Committee, by October 9, 2020. The
winner will receive an award plaque and be recognized at the section’s program
at the AALS annual meeting in January 2021. Thanks to the members of the Prize
Committee: Thomas
Berg (St. Thomas-Minnesota), Chair and Nathan Chapman (Georgia), Marie
Failinger (Mitchell Hamline), Rick Garnett (Notre Dame), Leslie Griffin (UNLV),
and Mark Storslee (Penn State).
The theme for the 2021 African American Intellectual History Society's Sixth Annual Conference is "The West." It will be a virtual conference. The society's conference committee is accepting individual proposals until October 15. Here's more about the conference.
“The West” is a significant, but ambivalent, concept in the diasporic Black experience. From a hegemonic perspective, imperial governments and white intellectuals have used the concept to demarcate the supposedly “civilized” from the “uncivilized,” and the modern from the pre-modern. Globally, it has been used to divide some ethnic and racial groups while coalescing others. “The West” is also a physical location, encompassing various regions, nations and states primarily in Europe, the Americas, Australia, New Zealand, and neighboring islands.
In the United States, “the West” includes a vast and diverse region, typically including the states west of the Mississippi River. By force or choice, voluntarily or involuntarily, Black people immigrated and migrated westward. For many Black people in the US South, especially during the era of Jim Crow, “the West” represented a new beginning. However, Black people migrating west soon learned the landscape offered a complex racial geography that both met and fell short of their expectations.
We invite scholars to think deeply about the complicated and often conflicted relationship between Blackness and “The West” (as a concept, imagined geography, and physical space). We encourage proposals that grapple with these and other questions: a) What does “The West” mean in the contemporary moment of Black life? b) From the early modern period until our contemporary reality, how have Black people in the Americas and around the world navigated “The West” in terms of principle, imagined geography, and physical space? c) What can interactions between Indigenous peoples and peoples of African-descent in the West do to enlighten us about the concept of the West? d) Can Black people, as a historically subjugated population, represent and embody “The West?” And, perhaps just as importantly, why would they want to?
AAIHS welcomes individual proposals for abbreviated presentations (5-6 minutes) that consider “The West” from a variety of perspectives, including, but not limited to, gender, sexuality, religion, digital humanities, politics, class, popular culture, art, literature, and environmental justice. Each proposal will be considered for inclusion in one of the featured conference sessions, which will be scheduled remotely on March 19 or March 20, 2021. Additionally, the conference committee will identify proposals to consider including in a forthcoming special forum AAIHS is organizing for Modern Intellectual History, a leading journal that publishes scholarship in intellectual and cultural history from 1650 to the present. Invited authors will submit a full draft of a journal article no later than December 30, 2021.
Finally, submitted proposals will also be considered for inclusion in a forthcoming AAIHS edited volume based on the 2021 conference theme. This year, AAIHS will not be accepting proposals for full panels. We are only accepting proposals for individual abbreviated presentations. The conference committee, in consultation with the AAIHS board, will select proposals to include in featured panels (and in the forthcoming special journal issue and edited volume). AAIHS invites scholars at various ranks and affiliations (from graduate students to senior faculty and independent scholars) to submit proposals for consideration. Each proposal should include a title and approximately 500 words, clearly explaining the paper’s argument; methods and methodologies; interventions; and engagement with the conference theme.
Submissions should also include a short CV (1-3 pages in length), highlighting previous publications and presentations, if applicable. Proposals should be submitted here no later than 11:59pm EST on October 15, 2020.
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