July 1, 2022

Dhondt on Bringing the Divided Powers of Europe Nearer One Another: The Congress of Soissons, 1728-1730 @HerakleitosMD @VUB_CORE @GRILI_Ugent

Frederik Dhondt, Research Group CORED (Contextual Research in Law); Legal History Institute/Gustave Rolin Jaequemyns Institute of International Law (GRILI), has published Bringing the divided Powers of Europe nearer one another: The Congress of Soissons, 1728-1730 at 2022 Nuova Antologia Militare III 535-642. Here is the abstract.
This contribution reconstructs the Congress of Soissons (1728-1730), a consequence of the Parisian Preliminaries (31 May 1727), an agreement that prevented the eruption of a general war in Europe between the League of Hanover (France, Britain-Hanover, Dutch Republic) and the League of Vienna (Emperor, Spain, Brandenburg-Prussia). The ‘sleeping’ congress did not generate a final peace agreement. Soissons was a congress of peacekeeping (Burkhardt), and in part contributed to the European culture of peace engineering (Ghervas). Besides the central commercial claims that opposed the Maritime Powers to Spain, the delegations reflected on geopolitical questions from the East Indies to Scandinavia, the Baltic and the Mediterranean. They were solicited by multiple actors of the European Society of Princes (Bély), down to the level of private individuals, who hoped for diplomatic intercession. France’s position as equidistant director of various bilateral and collective talks becomes clear through the itineraries of the delegates between Soissons, Fontainebleau, Compiègne and Versailles. The sociability of the congress is not purely curial or Parisian, but also includes life on the countryside. French archives highlight the material and logistical challenges of turning a regional hub as Soissons into an international one. The Hop Archives, which contain a synthesis of the daily reports of the Dutch delegation, and the British diplomatic archives (State Papers Foreign) are complemented by the press and the letters of George Lyttelton, who spent several months in Soissons on his Grand Tour. Not only this public circulation of news on the congress, but also the material culture of the print resources consulted by the diplomats allow to identify this eighteenth-century meeting place within the broader European republic of books, news and letters.

Download the volume from SSRN at the link. 

June 29, 2022

Rawlings on The Highwayman's Case: William Wreathocke--Lawyer, Robber, Spy and "Founder of the Present State of Perjury" @QMSchoolofLaw

Philip Rawlings, Queen Mary University of London, has publishing The Highwayman's Case: William Wreathocke - Lawyer, Robber, Spy and 'Founder of the Present State of Perjury'. Here is the abstract.
Of the six lawyers named as participating in The Highwayman's Case, only Wreathocke has left a significant impression, and the case was not the only unusual event in his life, nor the most important. Contemporary sources represent him as standing at the head of a formidable gang of robbers operating in London in the 1730s, and as developing a strategy by which perjured witnesses would provide alibis for any gang members brought to trial. His life contains many of the features that shaped criminal justice in the early eighteenth century, such as the panic over organised crime in London and the idea that lawyers were corrupting the justice system. A decade after The Highwayman's Case, Wreathocke was convicted of highway robbery and transported to the North American colonies for life. At this time, the allegations about perjured witnesses emerged. By the 1740s, he had returned from North America and was living in France and the Low Countries, where he worked as a merchant. When the Jacobite rebellion broke out in 1745, he saw an opportunity to provide information to the British government on the rebels' activities. Although he does not seem to have realised his objective of obtaining a formal pardon for the robbery, he eventually returned to England, where he rebuilt his fortune and died in 1764.
Download the article from SSRN at the link.

June 28, 2022

Call For Expressions of Interest: Digital Vulnerability in European Private Law (DiVE)








Digital Vulnerability in European Private Law





In recent years, vulnerability has emerged in legal discourse, in dialogue with other disciplines, as a useful concept to capture the fluid and multilayered nature of the human condition and to question the adequacy of some foundational legal and policy norms. Yet, despite the potential of the notion of vulnerability as a key tool to overcome the limits of legal formalism and paternalism and to foster substantive equality, the legal status and effects of the notion under domestic and European laws are is still quite unclear. In particular, the notion of people’s vulnerability has only seldom been applied to the specific forms of exposure to harm that might arise from interaction with digital technologies. In our current and pervasively digitalized world, we believe it is increasingly important to analyze how digital technologies impact preexisting forms of vulnerability or create new ones, and to understand how the law can prevent or address unequal experiences of technology.

This is what we plan to do with our project ‘Digital Vulnerability in European Private Law’ (DiVE), financed by the Italian Ministry of University and Research from June 2022 to May 2025. The project aims to investigate the notion of digital vulnerability by exploring how this notion stands vis-à-vis traditional paradigms of protection of weaker parties (such as rules on incapacity, consumer protection, data protection, anti-discrimination, equality before the law) and to what extent it might properly capture risks and harms stemming from digital technologies.

Throughout the project, three international conferences will be organized.

·      A first conference will be held in April/May 2023 in Ferrara, to inquiry the very boundaries of the notion of digital vulnerability.

·      A second conference will be held in April 2024 in Rome, to examine how digital vulnerability matters in access to, identity construction and protection of health in the digital sphere.

·      A third conference will be held in March 2025 in Trieste, to scrutinize the impact of digital vulnerability on contractual and tortious remedies.




We are particularly interested in identifying the factual conditions in which digital technology – from the web to social media, from platforms to Artificial Intelligence and Distributed Ledger Technologies – might prove disruptive and challenging for people, and in assessing under what conditions, how and to what extent the notion of digital vulnerability might be translated into claims for special legal protection.

The conferences will be held in person and in English. A few speakers will be invited; the majority of contributors will be selected through calls for papers. In line with the scope of each conference, proposals might explore how digital technologies exacerbate pre-existing vulnerabilities or create new ones, and how the notion of digital vulnerability could be translated in legal terms. Our main field of the research is domestic and European private law, but proposals can come from a variety of disciplines (including political science, sociology, linguistics, philosophy, economics) and can be theoretical or empirical, descriptive or prescriptive, quantitative or qualitative, mono-jurisdictional, comparative or pan-European, or combine methods of analysis. Contributions dealing with areas other than Europe might be accepted as well, on a case-by-case basis.

Proposals for contribution will be evaluated by the project’s scientific committee, which is currently under construction. Besides members of the DiVE team, confirmed members of the Scientific Committee currently include Danielle K. Citron (University of Virginia), Hans-Wolfgang Micklitz (European University Institute), Frank Pasquale (Brooklyn Law School), Teresa Rodríguez de las Heras Ballell (University Carlos III of Madrid), Giovanni Sartor (European University Institute), Reiner Schulze (University of Münster), Gunther Teubner (Frankfurt University), Yingqin Zheng (University of London). The organizers of each conference will bear the cost of accommodation and meals for the participants whose proposals have been accepted. Selected conference papers will be published following successful peer review.

Each conference will be preceded by an autonomous call for papers; the call for papers for the Ferrara conference in May 2023 will be distributed soon.

Please feel free to share and spread the word about this call for interest. The project will soon have its own website, but for the time being, should you have any doubt or question or suggestion, please feel free to contact the Project Officer Giacomo Capuzzo at digital.vulnerability@gmail.com.


The DiVE Team


Claudia Amodio

(Ferrara University)

Amalia Diurni

(Rome Tor Vergata University),






Camilla Crea

(Sannio University)

Marta Infantino

(Trieste University)

Loredana Tullio

(Molise University)



Alberto de Franceschi

(Ferrara University)

Luca Perriello

(Marche Polytechnic University)

Archer on How Racism Persists In Its Power @DeborahNArcher @nyulaw @michlawreview

Deborah N. Archer, New York University School of Law, is publishing How Racism Persists in its Power in volume 120 of the Michigan Law Review (2022). Here is the abstract.
The current moment is not unprecedented. Every generation has experienced the rage, urgency, anger, and exhaustion that drive demands for change. Every generation has collectively and publicly grieved racialized brutality and the loss of Black lives. Every generation has been viscerally reminded of racism’s grinding pain and the systems designed to contain, isolate, and crush Black people, physically and psychologically. Every generation is reminded that our systems are still founded on the white-supremacist belief that Black people have “no rights or privileges” beyond those that white people “choose to grant them.” As this country is forced to confront, once again, the truth of who we are and how we got here, James Baldwin’s searing examination of the architecture and consequences of racism, The Fire Next Time, offers a framework for understanding how racism persists in its power. In many ways, Baldwin’s essays were prophetic, diagnosing the ways racism would continue to manifest, day after day, year after year, and generation after generation. It is a lens that connects the injustices of the past to those of today. The Fire Next Time can offer truth and comfort to those of us seeking to understand the cycles of resistance and retrenchment that allow racial inequality to not only persist but thrive.
Download the article from SSRN at the link.

June 27, 2022

Sheley and Rosen on The Purloined Debtor: Edgar Allan Poe's Bankruptcy in Law and Letters @zvisrosen @erin_sheley

Erin L. Sheley, California Western School of Law, and Zvi S. Rosen, Southern Illinois University School of Law, are publishing The Purloined Debtor: Edgar Allan Poe's Bankruptcy in Law and Letters in the Yale Journal of Law and the Humanities. Here is the abstract.
This Article represents the first interdisciplinary case study of the Poe bankruptcy as an inflection point in the legal and cultural history of debt. It shows both how the pitfalls of a short, debtor-focused chapter in bankruptcy history gave rise to the system of today, and how Poe’s indebtedness and bankruptcy helped shape the American Gothic literary forms he made famous. Part One compares bankruptcy law in Poe’s time to that of today, also explaining how bankruptcy came to be and why it was revolutionary. Part Two presents a brief life of Poe and collects evidence of the literal and intellectual impact of the law on his life and thought. Turning to his literary work, it argues that Poe’s fixation on the relationship between debt, degeneration, and official naming reflects the impact of the burgeoning bankruptcy system on individual identity in a Gothic framework. Part Three explores Poe’s bankruptcy case from a technical legal perspective, both in the context of the law at the time and hindsight, showing that there were serious conflicts of interest in the case. We conclude by arguing that Poe’s case, read alongside his literary output, reveals both legal and narrative contradictions at the heart of bankruptcy, which the 1841 Act did a poor job of resolving. On the one hand, bankruptcy reframes the identity of the debtor, who becomes the object of a quasi-confessional process. On the other, bankruptcy restores some degree of material agency to the debtor as a subject, often at the expense of creditors.
Download the article from SSRN at the link.

Golia on The Critique of Digital Constitutionalism @AJrGolia @MPILheidelberg

Angelo Golia, Max Planck Institute for Comparative Public Law and International Law, has published The Critique of Digital Constitutionalism as Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2022-13. Here is the abstract.
This article analyses the critical potential of digital constitutionalism using the instruments provided by societal constitutionalism. The central argument is that, in order to address the challenges posed by new technologies, digital constitutionalism should embrace a more explicitly critical discourse, questioning several assumptions of liberal, state-centred constitutional theory. Digital constitutionalism could then be framed as a theory for the digital age and as an opportunity for a reckoning with the inner contradictions of modern constitutional theory. This article has three goals. First, linking different discourses within digital constitutionalism while highlighting its own critical potential. Second, offering some preliminary proposals based on such reflection. Third, bringing digital constitutionalism closer to the broader galaxy of global constitutionalism. After the introduction, section II offers an overview of societal constitutionalism, highlighting the elements of critique toward liberal, state-centred constitutionalism. Section III reconciles societal constitutionalism and digital constitutionalism, focusing on the latter’s definition and three functionally differentiated systems: politics, economy, law. For each of them, it highlights analytical and normative gains and points at proposals to be further developed. Section IV concludes.
The full text is not available from SSRN.

June 23, 2022

Swanson on The Tulsa Race Massacre of 1921: A Lesson in the Law of Trespass @KaraWSwanson @ConnLRev

Kara W. Swanson, Northeastern University School of Law, is publishing The Tulsa Race Massacre of 1921: A Lesson in the Law of Trespass in the Connecticut Law Review. Here is the abstract.
In my remarks today, I am focusing on this symposium’s subtitle: “What’s Law Got to Do with It?” In one sense, the answer to that question is easy. Since 1921, Black Tulsans have been looking to law and lawyers to address harms suffered during the Tulsa Race Massacre, largely unsuccessfully. This starting panel, though, is not about redress, as important as that topic is, but rather about the startling lack of recognition of the Massacre, that is, the seemingly impossible feat of forgetting the racially motivated wholesale destruction of a community. I want to focus on one space of non-recognition, law schools, and particularly, on the property law classroom. US lawyers learn what property is and how the law defines, shapes, and protects it without any knowledge of the Tulsa Race Massacre. Without knowledge of the Massacre, lawyers are ill-equipped to answer “what’s law got to do with it?” We cannot use law to change injustices that we cannot see. The costs of such ignorance on the part of lawyers reach beyond the bounds of Tulsa and “its search for justice,” however, as important as those localized discussions are. To explore these deeper costs, I have rewritten our starting question to ask: what might we learn if property law was taught with knowledge of the Tulsa Race Massacre? My short answer is that we all, as lawyers, would learn about race and property in ways that would not only better equip us to engage in the crucial on-going tasks of reevaluation, reparations, and redress with respect to Tulsa, but also to understand how property works in each community in the United States. The events in Tulsa on May 31 and June 1, 1921 offer new insights into how, as Professor Cheryl I. Harris demonstrated, “rights in property are contingent on, intertwined with, and conflated with race.” As my long answer, I invite you to follow me on a thought experiment into a lesson that is included early in most property courses, a lesson on the law of trespass. By adding the Tulsa Race Massacre to this lesson, we consider Black Americans as successful property owners, a role in which they seldom appear in a property course. I consider how, once students have learned the definition and purpose of trespass doctrine, often considered foundational to the very meaning of property, we could then review the lesson with attention to the events of the Massacre, asking who committed trespass against whose property and what the legal consequences were. The revised lesson encourages us as lawyers to be attentive to our roles in defining and enforcing property rights in racialized ways. By recognizing the conflation of property rights and race in US law, a truth grounded in history, we gain the power not just to address history – as important as that task is – but also to avoid repeating it, that is, to make a different future by disrupting historic relationships that have tied property and power to racial identity.
Download the article from SSRN at the link.

June 19, 2022

Risinger on The Welles of Belleville: A Black New Jersey Family of Substance in the Nineteenth and Twentieth Centuries

D. Michael Risinger, Seton Hall University School of Law, has published The Wellses of Belleville: A Black New Jersey Family of Substance in the Nineteenth and Twentieth Centuries. Here is the abstract.
The Wells family that is the subject of this article was a free Black family originating in Lancaster County, Pennsylvania in the early 19th Century.. This article follows the Wells family saga over the course of nearly a century and a half, including involvement in the bold act of resistance to the fugitive Slave act of 1850 which occurred in Christiana (Lancaster County) Pennsylvania in 1851, service in the U.S. Colored Troops in the Civil War, family separation and lost children in the period after the war, a surprising reunification after 20 years, an extended family exodus to Newark, New Jersey in the early 1880s, a further exodus as an extended family to Belleville, New Jersey, Newark’s neighbor to the north, in the late 1880s, and a variety of fraternal business and religious activities in New Jersey over 50 years, including the establishment of the first Black church in Belleville in 1886, It is the story of a Black family that persevered and found a way to flourish in the face of the social conditions it encountered over the course of a century and more.
Download the article from SSRN at the link.

Katz on Mary Lou Graves, Nolen Breedlove, and the Nineteenth Amendment @UMichLaw

Ellen D. Katz, University of Michigan Law School, is publishing Mary Lou Graves, Nolen Breedlove, and the Nineteenth Amendment in volume 20 of the Georgetown Journal of Law & Public Policy. Here is the abstract.
This close examination of two cases is part of a larger ongoing project to provide a distinct account of the Nineteenth Amendment. In 1921, the Alabama Supreme Court held the Nineteenth Amendment required that any poll tax be imposed equally on men and women. Sixteen years later, the Supreme Court disagreed. Juxtaposing these two cases, and telling their story in rich context, captures my larger claim that – contrary to the general understanding in the scholarly literature – the Nineteenth Amendment was deliberately crafted as a highly circumscribed measure that would eliminate only the exclusively male franchise while serving steadfastly to preserve and promote social hierarchies more generally, specifically those based on race and gender.
Download the article from SSRN at the link.

June 18, 2022

Ross on The Foundations of Criminal Law Epistemology @ErgoEditors

Lewis Ross, London School of Economics & Political Science (LSE), is publishing The Foundations of Criminal Law Epistemology in ERGO. Here is the abstract.
Legal epistemology has been an area of great philosophical growth since the turn of the century. But recently, a number of philosophers have argued the entire project is misguided, claiming that it relies on an illicit transposition of the norms of individual epistemology to the legal arena. This paper uses these objections as a foil to consider the foundations of legal epistemology, particularly as it applies to the criminal law. The aim is to clarify the fundamental commitments of legal epistemology and suggest a way to vindicate it.
Download the article from SSRN at the link.

June 17, 2022

Zietlow on Freedom Seekers: The Transgressive Constitutionalism of Fugitives From Slavery @ProfessorRZ @utoledolaw @NotreDameLRev

Rebecca E. Zietlow, University of Toledo College of Law, is publishing Freedom Seekers: The Transgressive Constitutionalism of Fugitives From Slavery in volume 97 of the Notre Dame Law Review (2022). Here is the abstract.
In the years leading up to the Civil War, fugitives from slavery ("freedom seekers") put their lives on the line to improve their own status and that of their families in their quest for freedom. Freedom seekers were constitutional actors who made constitutional claims with their actions when they transgressed borders from slave states to free spaces, and across Civil War battle lines to volunteer for the Union army. By transgressing these borders, fugitives from slavery triggered constitutional controversy over issues of interstate comity, federalism, citizenship rights, and fundamental human rights, and made rights claims for themselves with their actions. Their actions destabilized the structure of our country, leading to the Civil War. After the war, members of the Reconstruction Congress cited the sacrifices of freedom seekers as they debated measures to protect the rights that they claimed. Freedom seekers engaged in civil disobedience, resisting law that they believed to be unjust and inhumane. In the North, free Black people and their white allies supported freedom seekers by engaging in civil disobedience of their own. The transgressive actions of freedom seekers sparked constitutional controversy during the antebellum era over issues of interstate comity, federalism, citizenship rights, and fundamental human rights, Their actions were central to the antislavery struggle, and their sacrifices send a profound message which inspired other activists and strengthened their cause. Eventually, the Reconstruction Congress enshrined their claims into constitutional law. Until now, fugitives form slavery have largely been absent from virtually all of the legal scholarship about the antebellum and Reconstruction eras. This article seeks to remedy that oversight.
Download the article from SSRN at the link.

Roberts on The Global Red Scare and the Anti-Worker Repressive Model, 1913-1927 @CUHKLaw

Christopher M. Roberts, The Chinese University of Hong Kong Faculty of Law, is publishing The Global Red Scare and the Anti-Worker Repressive Model, 1913-1927 in volume 5 of the Cardozo Journal of International and Comparative Law (2022). Here is the abstract.
This article considers the extensive repressive measures enacted around the world during and in the wake of the First World War. While repressive developments in the World War I and post-war periods have previously been examined in different national contexts, little scholarship has adopted a more global lens. To better organize and consider the relevant developments, this article develops a typology of six different categories of public order governance into which the majority of the repressive measures of the period may be classified: the passage of new laws; the development of new institutions; raids, arrests, prosecutions, and other judicial and administrative measures taken against suspected dissidents; direct suppression via the deployment of state force; the development of new ideological formations; and the creation and strengthening of parastatal organizations. Considering developments around the world during and in the aftermath of World War I with the help of this typology helps to make clear how extensive in both kind and scope the innovations and extensions of repressive public order governance in the period were. Global study of such developments helps to reveal, moreover, how little such measures were solely or even primarily concerned with wartime exigencies, and how much, in contrast, they were concerned with clamping down on labor unrest, socialist agitation, and anti-colonial resistance. The developments of the period are not only a historical curiosity; rather, they continue to inform key components of repressive governance in numerous states today. As such, more directly confronting and addressing the history of such laws is essential to achieving greater respect for human rights in the contemporary world.
Download the article from SSRN at the link.

June 16, 2022

Craig and Dhonchak on A Feminist Theory of Moral Rights, Creative Agency, and Attribution @craigcarys @AnupriyaDh_19 @Elgar_Law @OsgoodeNews @NLUDofficial

Carys J. Craig, Osgoode Hall Law School, York University, and Anupriya Dhonchak, Faculty of Law, University of Oxford; National Law University, Delhi, are publishing Against Integrity: A Feminist Theory of Moral Rights, Creative Agency, and Attribution in the Research Handbook on Intellectual Property and Moral Rights (Ysolde Gendreau, ed., Edward Elgar) (Forthcoming).
The term “moral rights” captures a collection of personal rights of the author that run parallel to economic copyright interests. These moral rights include the right of attribution (the right to be associated with the work as its author) and the right of integrity (the right to object to modifications of the work that may prejudice the author's honor or reputation). It is generally agreed that moral rights occupy a unique place (the moral high ground, if you will) within the copyright realm, reflecting an intimate and ongoing personal connection between the author and their work that is deserving of acknowledgement and respect. Yet it is not generally recognized that feminist theory has something to say about the nature of this intimate personal connection and the rights that it seemingly entails. This Chapter explores insights that feminist theories can bring to the study and development of moral rights protections in copyright law. We begin by explaining why certain facets of conventional moral rights theory (typically based on the writings of Kant and Hegel) are ill-suited to—indeed inconsistent with—a feminist approach in both concept and effect. Conceptually, they demand and support an individualized and romanticized conception of the (patriarchal) author-figure. In practice, to the extent that strong moral rights of integrity and association limit dialogic engagement and transformation of protected works, they risk suppressing the kind of critical and counter-hegemonic expression that is vital to a feminist political agenda. Employing alternative feminist conceptions of situated selfhood, relationality, and dialogic authorship, we then explore what it might mean to reimagine moral rights in a way that resists claims to exclusion and control, but reflects the personal, social, and political value of creative agency. We present a limited defense of the right of attribution on these terms, and conclude with a call for attribution as feminist praxis.
Download the chapter from SSRN at the link.

June 15, 2022

Rebeiro on Frederick Douglass and the Original Originalists @RebeiroBradley @BYULaw

Bradley Rebeiro, Brigham Young University Law School, is publishing Frederick Douglass and the Original Originalists in volume 48 of the Brigham Young University Law Review. Here is the abstract.
Constitutional scholars incessantly grapple over the significance of the Constitution’s original meaning. More specifically, they are preoccupied with, on the one hand, what that meaning is (if such meaning exists) and, on the other hand, the exact nature of that meaning’s authority (if any) over the Constitution and its interpreters. But this debate is hardly novel. In fact, one of the most compelling voices in U.S. history was immersed in similar debates and, out of the constitutional sparring of his time, forged an arresting theory of constitutional interpretation. Frederick Douglass, once a fierce opponent of the U.S. Constitution, evolved into a defender of the Constitution with a robust theory of constitutional interpretation that addressed the constitutional evil of slavery. For example, in 1847, Douglass stated: “The Constitution I hold to be radically and essentially slave-holding . . . [t]he language of the Constitution is you shall be a slave or die.” Yet, five years later in his famous speech, “What to the Slave is the Fourth of July?”, Douglass declared: “interpreted as it ought to be interpreted, the Constitution is a glorious liberty document.” Because Douglass was primarily a political and constitutional actor that never wrote a treatise of jurisprudence, his understanding of constitutionalism must be gleaned from his many speeches and other writings. I therefore take on the task of welding together these speeches and writings to demonstrate how Douglass’s theory fuses historical meaning, established legal rules of interpretation, natural rights principles, and a conception of justice into a cohesive approach that addresses the problem of constitutional interpretation and construction. Though Douglass was one of the most prominent political thinkers and constitutional actors of the 19th century, his constitutional thought has been overlooked by most legal scholars and mostly mischaracterized by political scientists. Due to the aforementioned lack of a singular treatise on the subject, as well as Douglass’s constitutional transformation over the course of his life, this comes as no surprise. Legal scholars tend either to dismiss his constitutional theory as incoherent or to assume that Douglass’s reformed theory was not sincere, but merely a smokescreen for political purposes. Others have referred to Douglass as a living constitutionalist or offered wholly new categories to explain Douglass’s position, such as “reform textualism.” However, Douglass’s theory, similar to his contemporaries, may be seen as anticipating the modern shift to originalism. But this claim challenges the conventional scholarly wisdom in two ways. First, the current literature mostly characterizes Douglass as, at the very least, anti-originalist. Second, though Douglass’s theory shares many elements with originalism, originalism’s current formulations leave little room for philosophical inquiry, which Douglass’s theory admittedly does. His theory does not fit perfectly into any of the many variations of originalism today, thereby offering present-day originalists new possibilities. I will thus refer to Douglass’s theory as “natural rights originalism.” Natural rights originalism deviates most importantly in not abandoning the original philosophical principles that animated the Constitution’s framing. This theory, the product of an insatiably inquisitive mind, transformed Douglass’s constitutional thinking—no longer was the Constitution an instrument of oppression, but one of freedom.
Download the article from SSRN at the link.

June 13, 2022

Ban and Belavusau on Memory Laws @BloomsburyBooks

Marina Bán, University of Copenhagen, and Uladzislau Belavusau, T.M.C. Asser Institute - University of Amsterdam; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law, have published Memory Laws in Bloomsbury History: Theory and Method (2022). Here is the abstract.
This entry provides an ample and detailed analysis on the emerging phenomenon of memory laws. It outlines how these legal measures, the symbols of interaction between history and law, have developed in the last two centuries and how their scope have drastically expanded. It further reflects of the consequences of states’ growing reliance on the legal governance of historical memory. First, by tying memory laws to their impact on different fundamental rights, then by demonstrating how the increasing breadth and potential misuse of these provisions appears in debates around constitutionalism, citizenship and the rule of law. Finally, the contribution highlights how this initially European phenomenon have captured increasing attention around the world and what its future may hold.

Download the essay from SSRN at the link.

ICYMI: Frohnen on Tocqueville's Law: Integrative Jurisprudence in the American Context

ICYMI: Bruce P. Frohnen, Ohio Northern University College of Law, published Tocqueville's Law: Integrative Jurisprudence in the American Context at 39 American Journal of Jurisprudence 241 (1994). Here is the abstract.
This article examines the jurisprudence of nineteenth century scholar and magistrate Alexis de Tocqueville. Best known for his analysis of American democratic society, Tocqueville brought to his work a lawyer’s eye for legal rules and structures, and their impact on public life. Tocqueville’s jurisprudence, integrating moral, political, and historical practices and influences, enabled him to explain the role of law and lawyers in maintaining stability in a society permeated by egalitarian and individualist impulses. Central to this stabilization, according to Tocqueville, were the legalistic norms inculcated through administrative decentralization and the jury system in a society that accorded high status to legal practitioners.
Download the article from SSRN at the link.

June 11, 2022

Kinsinger on Bringing About a Reformation? Religious Freedom and Canadian Constitutionalism, 1759-1774 @kkinsinger @RunnymedeSoc

Kristopher Kinsinger, Runnymede Society; Cardus, has published Bringing About a Reformation? Religious Freedom and Canadian Constitutionalism, 1759-1774 at 105 SCLR 2d 395 (2022). Here is the abstract.
The human rights and civil liberties guaranteed by the Canadian Charter of Rights and Freedoms did not spring into existence in 1982. Although this assertion might seem trite, the Charter has engulfed how scholars study constitutional rights and freedoms in Canada. As a result, many jurists are not fully aware of the broader history of Canadian civil liberties. This article seeks to remedy this amnesia through a study of the constitutionally significant statutes and documents enacted following the Seven Years’ War which promised varying degrees of religious freedom to British North America’s Roman Catholic population. Geopolitics played an undeniable role in shaping imperial policy regarding religious freedom in Canada. But it would be a mistake to conclude (as the Quebec Superior Court did in its 2021 ruling in Hak c. Procureur général du Québec) that these guarantees were little more than the product of a political calculus. While many colonial leaders in late 18th century Canada appeared to largely value religious freedom for its political utility, others came to articulate a decidedly aspirational vision for these guarantees. It was to the efforts of these latter individuals that the late W.P.M. Kennedy referred when he asserted that this period of history establishes “religious toleration [as] one of the corner-stones of the Canadian constitution”.
Download the article from SSRN at the link.

Rawlings on The Highwayman's Case: John Everett--Soldier, Robber, Publican, Gaoler @QMSchoolofLaw

Philip Rawlings, Queen Mary University of London, School of Law, has published The Highwayman's Case: John Everett - Soldier, Robber, Publican, Gaoler. Here is the abstract.
Of the two parties named in The Highwayman's Case, only John Everett (or Everet) has left a significant trace. Born in Hitchin in 1690, he abandoned his wife and an apprenticeship in around 1709, becoming a soldier, then a court bailiff, a robber, an informer, an alehouse keeper, an inmate of the Fleet prison, a gaoler, a thieftaker, and, finally, around the age of 40, he returned to robbery, was arrested, convicted, and executed. His life provides insights into the relationship between criminals and the justice system. In the 1720s, when Everett was active, the authorities became increasingly concerned about gangs of robbers believed to be infesting London, and breaking these gangs meant depending on robbers like Everett giving evidence against their former comrades. But it was his work as a keeper in the Fleet prison that made him notorious. He was brought before the first parliamentary inquiry into the prisons, and, although never prosecuted, his involvement in the abuse of prisoners brought the financial ruin that, according to Everett, led him to commit his final robbery.
Download the article from SSRN at the link.

June 9, 2022

Call For Abstracts: Law and Magic II

 Call For Abstracts:  Law and Magic II


Do you remember this book? Whether or not you do, we’re calling for abstracts for essays to fill a second volume of






Suggested topics might include, but are not limited to:

·       The law of fortune telling, tarot, phrenology, or other crafty sciences

·       The history of law and magic

·       Law and religion

·       Law as magic

·       Law and magic in popular culture

·       Law and magic in anthropology

·       Literature reviews of law and magic topics

·       Magic in the courtroom (using magic in advocacy)




For your convenience, here’s the table of contents from the first volume of Law and Magic (published 2010).

Loren A. Smith, Law and Magic: An Introduction Out of a Hat

Julie D. Cromer, It’s In the Cards: The Law of Tarot (and Other Fortunes Told)

Craig Freeman and Stephen A. Banning, Rogues, Vagabonds, and Lunatics: How the Right to Listen Cleared the Way For Fortunetellers

Pamela Edwards, Non-Mainstream Religions and the Law

Indra Spiecker genannt Doehmann, The Effects of Freedom of Information Laws on Corruption and the Quality of Decision-Making under U.S., E.U., and German Freedom of Information Laws

Christine A. Corcos,  “Ghostwriters”: Spiritualists, Copyright Infringement, and Rights of Publicity

F. Jay Dougherty, Now You Own It, Now You Don’t: Copyright and Related Rights in Magic Productions and Performances

Jacob Loshin, Secrets Revealed: Protecting Magicians’ Intellectual Property without Law

Florian Faust, Selling Secrets: Legal Problems of the Magic Market

Frederick A. Brodie, The Magic of Civil Procedure

Robert M. Jarvis, The Case of the Magician’s Assistant: McAfoos v. Canadian Pacific Steamships, Ltd.

Jessie Allen, Magical Realism

Wendy J. Turner, The Legal Regulation and Licensing of Alchemy in Late Medieval England

Eric J. Gouvin, On Death and Magic: Law, Necromancy, and the Great Beyond

Susan D. Rozelle, The Type of Possession Is Nine-Tenths of the Law: Criminal Responsibility for Acts Performed under the Influence of Hypnosis or Bewitchment

Garrett Epps,  “When You Awake You Will Feel No Remorse”: Stage Hypnotism and the Law

Peter W. Edge, Unsympathetic Magic: Charitable Status and Magical Practice in the United Kingdom  

Rebekah Heiser Hanley, Principled Conjuring Tails: A Twenty-First Century Lawyer’s View of the History of Animals in Magic

Lisa Johnson, Taking the Rabbit out of the Hat: Let the Animals Disappear from Magic Acts

Noel Marcovecchio, Hocus Ipsa Loquitur: The Affinity between Law and Magic

Kenneth M. Trombly, Conjuring and the Courtroom: All I Needed to Know about Trying Cases I Learned by Doing Magic Shows

We invite abstracts of up to 500 words on any topic linked to law and magic. 


Deadline for submission of abstracts: October 15, 2022

Send your submission as well as any questions about the project to: Christine Corcos, Richard C. Cadwallader and Judge Albert Tate Foundation Associate Professor of Law, LSU Law Center,  at ccorcos@lsu.edu


We’ll let you know of acceptances no later than November 15, 2022.

 Final essays may be up to 15,000 words in length, not including references, although we might consider some deviations from that length. The deadline for submission of final essays would be September 30, 2023.


June 8, 2022

Oren on No-Fault Divorce Reform in the 1950s: The Lost History of the "Greatest Project" of the National Association of Women Lawyers @UHLawCenter

Laura E. Oren, University of Houston Law Center, has published No-Fault Divorce Reform in the 1950s: The Lost History of the 'Greatest Project' of the National Association of Women Lawyers as U of Houston Law Center No. 2022-A-. Here is the abstract.
In the 1950s, the National Association of Women Lawyers (“NAWL”) undertook what it considered its 'greatest project', the drafting and promotion of a model no-fault divorce law. It launched its campaign at a time when post-war realities and the law in practice were putting increasing pressure on the law on the books which lagged behind contemporary sensibilities. NAWL acted two decades before the no-fault divorce 'revolution' of the 1970s. It did so in the 1950s when women were said to be both 'domestic' and 'quiescent'. The Article has three aims. First, it considers NAWL’s project as a missing piece in the history of divorce law, the no-fault revolution, and the rise of mass divorce in mid-twentieth century America. Second, it reflects on the implications of NAWL’s undertaking for the standard narrative of 'domesticity' in the 1950s, an account that has been questioned in recent years. Last, it tells a story of women’s activism in the depth of the so-called 'doldrums' of the organized women’s movement. Focusing on NAWL’s 'greatest project', this Article demonstrates the fallacies of an Equal Rights Amendment-centric account of women’s activism in the 1950s. It contributes to the evidence of continuity and transition that has led historians to question the 'waves' theory of women’s movement history.
The full text is not available from SSRN.

Tobia, Slocum, and Nourse on Progressive Textualism @kevin_tobia @vicnourse @GeorgetownLJ

Kevin Tobia, Georgetown University Law Center; Georgetown University, Department of Philosophy, Brian G. Slocum, University of the Pacific, McGeorge School of Law, and Victoria Nourse, Georgetown University Law Center,are publishing Progressive Textualism in volume 110 of the Georgetown Law Journal. Here is the abstract.
Textualism is now the Court’s lingua franca. In response, some have proposed a “progressive textualism,” defined by the use of traditional textualist methods to reach politically progressive results. This Article explores a different kind of “progressive textualism.” Rather than starting with the desired policy outcome—politically progressive or conservative—we begin from one of modern textualism’s central values: A commitment to “democratic” interpretation. As Justice Barrett argues, this commitment views textualists as “agents of the people” who “approach language from the perspective of an ordinary English speaker.” Textualists thereby claim to promote democracy by interpreting law consistently with what it communicates to the ordinary public. However, recent empirical studies reveal discrepancies between textualist interpretive commitments and how ordinary people understand legal texts. These discrepancies undermine claims that textualists’ methodology is committed to democratic interpretation. A textualism centered on democratic interpretation would be methodologically more progressive if it centered facts rather than fictions about how ordinary people interpret language. It would recognize that people understand legal language in light of linguistic “(co)text” and “(con)text,” and sometimes nonliterally; they often understand ambiguous terms in law to have legal, not ordinary, meanings; and their understanding of law is informed by its apparent purpose and sometimes by interpretive rules that are conventionally justified on normative grounds. In contrast, current textualism is often methodologically regressive, crafting a fictional “ordinary person” more closely connected to ideological policy goals than facts about ordinary language comprehension.
Download the article from SSRN at the link.

June 6, 2022

Solum on The Public Meaning Thesis: An Originalist Theory of Constitutional Meaning @lsolum @BULawReview

Lawrence B. Solum, University of Virginia School of Law, has published The Public Meaning Thesis: An Originalist Theory of Constitutional Meaning at 101 Boston University Law Review 1953 (2021). Here is the abstract.
Public Meaning Originalism is the predominant form of constitutional originalism. What makes Public Meaning Originalism distinctive is the Public Meaning Thesis—the claim that the best understanding of constitutional meaning focuses on the meaning communicated by the constitutional text to the public at the time each constitutional provision was framed and ratified. This Article provides a precise formulation of the Public Meaning Thesis, supplies reasons for affirming the thesis, and answers objections. The constitutional record strongly supports the claim that the constitutional text was intended to communicate to the public. The Constitution begins with “We the People” and the ratification process included intense popular participation. Jurists and scholars emphasized the public nature of the Constitution. The communication of public meaning is made possible by two features of constitutional communication. The first of these features is a shared language: the drafters of the constitutional text could rely on the fact that American English was spoken by most Americans and was accessible via translation to those who spoke German and Dutch. The second feature is a shared public context of constitutional communication: the drafters could rely on widely shared understandings of the circumstances in which the Constitution was framed and ratified. These features enable the creation of public meaning. Common objections to the Public Meaning Thesis, including the “summing problem,” are based on mistaken assumptions about the way linguistic communication works. In sum, the central claim of the Article is that Public Meaning Originalism provides the best understanding of original meaning and hence the most attractive form of originalist constitutional theory.
Download the article from SSRN at the link.

Want More Jeremy Bentham? Check Out UCL Press's Website @UCLpress @TranscriBentham

UCL Press has a number of open-access titles on Jeremy Bentham available, including the Journal of Bentham Studies. Explore them here. 

June 3, 2022

ICYMI: Murray on The Legal Gaze and Women's Bodies @murrayyxta @LoyolaLawSchool @ColumbiaJGL

ICYMI: Yxta Maya Murray, Loyola Law School, has published 'We Just Looked at Them as Ordinary People Like We Were:' The Legal Gaze and Women's Bodies at 32 Columbia Journal of Gender and Law 252 (2017). Here is the abstract.
This article analyzes the struggles of two female musicians who were caught in the criminal justice system because they revealed their bodies. Using archival research and personal interviews, I tell the story of punk rocker Wendy O. Williams’ 1981-1984 obscenity and police brutality court battles. I also relay the life of Lorien Bourne, a disabled and lesbian rock-n-roller who was charged with disorderly conduct in Bowling Green, Ohio in 2006. I examine how legal actors, including courts and jurors, viewed Williams and Bourne using classed, ableist, sexist, and homophobic optics. In so doing, I extend my previous work on legal “gazes,” or what I have called the legal practice of “peering.” I end the article by looking to the women’s art and lives as correctives to oppressive manners of legal seeing.
Download the article from SSRN at the link.

Brazeal on The Politics of Crime Stories: Book Review of Andrew Pepper, Unwilling Executioner (OUP, 2016) @TheNewRambler @OxUniPress

Gregory Brazeal, University of South Dakota Law School, has published The Politics of Crime Stories in The New Rambler. Here is the abstract.
Book review of "Unwilling Executioner: Crime Fiction and the State," by Andrew Pepper. To what extent has popular crime fiction served to defamiliarize and critique the everyday injustices of criminal justice? "Unwilling Executioner" offers a wide-ranging global tour of the development of crime fiction over the last three centuries, with a focus on the political orientations of specific writers and works. But the book has relatively little to say about how crime fiction has responded to the changing politics and institutions of criminal justice. Instead, the book’s main interest is how various works of crime fiction express a tension between “Marxist” and “liberal” views of markets and the state. Literary scholarship would be well-equipped to contribute to our understanding of historical differences in the ideology of crime and punishment, in part because close attention to language and literary form can reveal subtleties, contradictions, ambiguities, and conflicting ways of thinking that sometimes receive too little attention in social scientific analyses. Can comparisons of U.S. and European crime fiction shed any light on why the culture of criminal justice in the United States has tended to be harsher than in Europe? Can the global development of crime fiction help us understand the apparently universal tendency to condemn subordinated groups as “criminals”?
Download the review from SSRN at the link.

The review is also available at The New Rambler website here. 

June 2, 2022

Jouet on A Lost Chapter in Death Penalty History: Furman v. Georgia, Albert Camus, and the Normative Challenge to Capital Punishment @MugambiJouet @AmJCrimL @LawMcGill

Mugambi Jouet, McGill Faculty of Law, is publishing A Lost Chapter in Death Penalty History: Furman v. Georgia, Albert Camus, and the Normative Challenge to Capital Punishment in the American Journal of Criminal Law. Here is the abstract.
Overlooked historical sources call into question the standard narrative that the Supreme Court’s landmark decision in Furman v. Georgia (1972), which temporarily abolished the death penalty, reflected a challenge to its arbitrary, capricious, and discriminatory application. This Article examines materials that scholars have neglected, including the main brief in Aikens v. California, a companion case to Furman that presented the fundamental constitutional claim: the death penalty is inherently cruel and unusual. Aikens was largely forgotten to history after it became moot, leaving Furman as the main case before the Court. The Aikens brief’s humanistic claims and rhetoric are at odds with the widespread idea that Furman was a case about administrative or procedural problems with capital punishment. This is truer of the Furman decision itself than of the way the case was litigated. Depicting any execution as “barbarity,” as an “atavistic horror,” the Aikens brief marshaled an argument that has garnered much less traction in modern America than Europe: the death penalty is an affront to human dignity. Yet the transatlantic divergence in framing abolitionism was not always as pronounced as it came to be in Furman’s aftermath. Since the Enlightenment, American and European abolitionists had long emphasized normative arguments against capital punishment, thereby revealing why they played a central role in Aikens-Furman. Strikingly, the Aikens brief insistently quoted a European figure whose role in this seminal Supreme Court case has received no attention: Albert Camus. “Reflections on the Guillotine,” Camus’s denunciation of the death penalty’s inhumanity, is among the sources prominently featured in the Aikens-Furman briefs. The architect of this strategy was Anthony Amsterdam, a famed litigator. Subsequent generations of American abolitionists have placed less weight on humanistic objections to executions, instead stressing procedural and administrative claims. This shift has obscured how a lost chapter in death penalty history unfolded. These events are key to understanding the evolution of capital punishment, from its resurgence in the late twentieth century to its present decline as the number of executions nears record lows. On Furman’s fiftieth anniversary, the Article offers another window into the past as scholars anticipate a future constitutional challenge to the death penalty in one or two generations.
Download the article from SSRN at the link.

May 31, 2022

Munir on The Necessary Connections Between Law and Morality: Assessing the Hart-Fuller Debate

Muhammad Munir, International Islamic University, Islamabad, Department of Law, has published The Necessary Connections between Law and Morality: Assessing the Hart-Fuller Debate. Here is the abstract,
This work examines Hart’s argument that law and morality are totally separate from each other. It discusses Hart’s views on whether there are some necessary connections between law and morality; what is the minimum content of natural law for Hart? What is Hart’s methodology regarding the grudge Nazi informer case? Would Hart’s methodology regarding the grudge Nazi informer case make any difference as far as the outcome of the case is concerned? What are Lon Fuller’s eight conditions of inner morality? What are Fuller’s arguments in support of the view that law and morality are inseparable? How did Hart respond to Fuller’s eight conditions of inner morality? The main findings of this work are that Hart believes that the necessary connection between law and morality is that both have common terminology as well as content but it does not mean that morality has influenced law. Hart argues that any legal system must have the minimum content of natural law in order to be good. He invokes a moral principle to justify his methodology regarding the grudge Nazi informer case and to tell the naturalists that they are wrong. Fuller argues that there are eight conditions or principles of inner morality in making a law that must be satisfied by every legal system. He mentions that no compliance with any principle of inner morality means that there is no legal system, however, complete compliance may be difficult in practice. Hart’s rejection of Fuller’s position is absurd and unacceptable.
Download the paper from SSRN at the link.

May 30, 2022

Jeon on Legal Aid Without Lawyers: How Boston's Nonlawyers Delivered and Shaped Justice for the Poor, 1879-1921 @PovertyLaw_Jrnl @kelppsea @StanfordLaw

Kelsea A. Jeon, Stanford Law School, has published Legal Aid Without Lawyers: How Boston’s Nonlawyers Delivered and Shaped Justice for the Poor, 1879–1921 at 29 Georgetown Journal on Poverty Law and Policy 122 (2022). Here is the abstract.
Women nonlawyers were some of the first actors to provide organized legal aid to America’s poor. Yet, today, unauthorized practice of law statutes bar nonlawyers from providing legal help, citing concerns about malpractice and public harm. This Article uses a historical case study to challenge conceptions that nonlawyers cannot provide effective legal services to the people. The study focuses on the development of legal aid in Boston via two organizations, the nonlawyer-led Women’s Educational and Industrial Union and the lawyer-centric Boston Legal Aid Society. Although organized legal aid in Boston began with the nonlawyers at the Union, they were eventually overtaken by the lawyer-centric Legal Aid Society. This paper examines this transition in legal aid practitioners, emphasizing how nonlawyers provided effective legal help. In doing so, it challenges the modern-day conception that access to justice requires access to an attorney and serves as a powerful counter to claims that nonlawyer practitioners endanger the public.
Download the article from the journal's website at the link.

May 27, 2022

Robbins on Explaining Florida Man @AUWCL @fsulawreview

Ira P. Robbins, American University College of Law, is publishing Explaining Florida Man in the Florida State University Law Review. Here is the abstract.
“Florida Man” is a popular cultural phenomenon in which journalists report on Floridians’ unusual (and often criminal) behavior, and readers relish in and share the stories, largely on social media. A meme based on Florida Man news stories emerged in 2013 and continues to capture people’s attention nationwide. Florida Man is one of the latest unique trends to come from the Sunshine State and contributes to Florida’s reputation as a quirky place. Explanations for Florida Man center on Florida’s Public Records Law, which is known as one of the most expansive open records laws in the country. All states and the District of Columbia have open records laws that establish procedures for individuals to obtain access to public records in the spirit of government transparency. Because many Florida Man stories are based on arrest records and incident reports and incorporate mugshots, those who have written about Florida Man claim that the Florida Public Records Law, which allows reporters to access those records, is behind the trend. The problem with this theory is that it incorrectly implies that Florida’s Public Records Law offers journalists advantages in writing stories that other states’ laws do not. Despite the broad grant of access to police documents that Florida’s open records law provides, other states’ open records laws similarly provide the public with access to arrest records, incident reports, and, although to a lesser extent, mugshots. Other provisions of Florida’s Public Records Law that contribute to the ease of access to Florida’s public records compared with other states’ equivalent laws are largely irrelevant to Florida Man’s existence. Even coupled with the characteristics of Florida and its residents that many people claim are unique, the open records law-based theory for Florida Man’s existence falls short of explaining the phenomenon. This Article posits that the primary reasons for Florida Man’s popularity are preexisting popular culture trends and the venue in which Florida Man rose to fame: the internet. Internet platforms allow a wide audience—which may already have been receptive to jokes about Florida due to its reputation for being a newsworthy state—to easily consume, share, and re-share Florida Man content, inspiring journalists to continue to write Florida Man stories. This cycle of generation and consumption of Florida Man stories has allowed Florida Man to become one of the longest-living memes in internet history. While the Florida Public Records Law and characteristics of Florida and its people work together to provide raw material for Florida Man articles, the heretofore unmentioned popular culture and internet trend factors of the phenomenon complete the story behind Florida Man’s existence.
Download the article from SSRN at the link.

May 25, 2022

Palmer on The Legal History and Framework of the New Zealand Constitution

Sir Geoffrey Palmer, QC, Victoria University of Wellington Faculty of Law, has published The Legal History and Framework of the New Zealand Constitution as Victoria University of Wellington Legal Research Paper 30/2022. Here is the abstract.
A paper presented to the “Building the Constitution” conference, held on 7–8 April 2000. The paper provides an overview of New Zealand’s constitutional history and system. It notes that uncertainty surrounding New Zealand's constitution renders any assessment of its adequacy quite challenging. Nevertheless, it ends by posing a number of questions for reformers to consider.
Download the paper from SSRN at the link.

May 22, 2022

Levinson and Graber on Justice Accused at 45: Reflections on Robert Cover's Masterwork @TouroLawReview @UTexasLaw @mgraber_ @UMDLaw

Sanford Levinson, University of Texas Law School, and Mark Graber, University of Maryland School of Law, have published Justice Accused at 45: Reflections on Robert Cover's Masterwork at 37 Touro Law Review 1851 (2022). Here is the abstract.
We raise some questions about Robert Cover’s Justice Accused, not to criticize magnificent and audacious scholarship motivated by the most pressing moral concerns, but to consider the timeliness and timelessness of certain themes explored in that masterwork. Our concern is how the issues Cover raised when exploring the ways antislavery justices decided fugitive slave cases played out in the antebellum United States, played out in the United States when Cover was writing, and play out in the United States today. Cover’s opus was a work of the Great Society, even if the text discusses the American judiciary of more than a century before. The moral-formal dilemma faced by the justices Cover studied when adjudicating cases arising from the Fugitive Slave Acts of 1793 and 1850 was whether judicial decision-makers should interpret the law in light of the antislavery values of many northern constituencies or defer to laws that reflected the moral values of politicians eager to compromise on slavery to preserve a bisectional consensus. As times change, so does the moral-formal dilemma. The civil rights movement and, for many, the anti-War movement, at least as viewed from the academy in the 1960s, presented the moral-formal dilemma in pure form. Jim Crow laws were unjust. Young men were being drafted to fight an immoral war. Every respectable ethicist and every decent lawyer, at least as defined by the bulk of the academy, understood that morality and law were opposed. The sole question in the academy was whether laws widely agreed to be immoral should be respected and obeyed. One feature of much contemporary civil disobedience—consider illegal protests at abortion clinics or a public willingness to disobey state bans on abortion—is that the moral debate is marked by good faith disagreement on both sides. Pro-choice and pro-life activists in this environment face the same more-formal dilemma, as each decides the extent to which the Constitution reflects the values they cherish and the extent to which they have obligations to respect the Constitution or official decisions interpreting the Constitution that either fail to protect all women from exercising their fundamental right to reproductive choice or fail to prevent the wholesale slaughter of the unborn. Donald Trump and the contemporary Republican party may be providing Americans with a new variation on the moral-formal dilemma grappled with by nineteenth century justices in fugitive slave cases and twentieth century justices in civil rights cases. The moral-formal dilemma many Americans in institutions far remote from courts are facing is whether to follow the letter of the law and retain the basic structure of constitutional law in the United States even when following and maintaining the letter of the law threatens to warp the constitutional fabric, undermine the political regime, and risk an environmental catastrophe that could easily leave humans near extinction.
Download the article from the Touro Law Review website at the link.

May 20, 2022

Balkin on Constitutional Memories @jackbalkin @YaleLawSch

Jack M. Balkin, Yale University Law School, has published Constitutional Memories. Here is the abstract.
Many arguments in constitutional law invoke collective memory. Collective memory is what a group—for example, a religion, a profession, a people, or a nation— remembers and forgets about its past. This combination of remembering and forgetting helps constitute the group’s identity and structures its values and its commitments. Precisely because memory is selective, it may or may not correspond to the best account of historical facts. The use of memory in constitutional argument is constitutional memory. It shapes people’s views about what the law means and why people have authority. Lawyers and judges continually invoke and construct memory; judicial decisions both rely on constitutional memory and produce constitutional memory. What is remembered and what is erased has powerful normative effects. It shapes our understanding of who we are and how things came to be; what is traditional and what is an innovation; who has committed wrongs and who has been wronged; what we owe to others and what they owe to us. What is erased from memory, by contrast, can make no claims on us. Many of the most important forms of constitutional interpretation— arguments from precedent, arguments from tradition, and arguments from original meaning or understanding—involve an mixture of memory and erasure. They emphasize certain elements of the past while effacing others. Yet the selectivity and erasure of constitutional memory can have ideological effects, and can bestow on constitutional claims a legitimacy that they do not always deserve. The scope of constitutional memory matters to legitimacy because many features of constitutional legitimacy depend, whether directly or indirectly, on implicit notions of societal consensus, majority opinion, and the consent of the governed. But if the consensus is not real, if the majority is artificially constructed, and if the consent of the governed is not genuine, this undermines assumptions about legitimacy. At stake in constitutional memory is which historical figures and movements will count as makers of constitutional meaning for the present. If the memory of the adoption of the Constitution and its amendments features only a small group of white men as the central actors, the American constitutional tradition belongs to them and it is their views that matter. Women and racial minorities have constitutional rights only because these white men allowed them to have them. This is a false portrait of the country’s history. When we engage in constitutional construction therefore, we should embrace an expansive conception of collective constitutional memory, including the views and experiences of people left out of formal constitution-making, as well as the claims of social and political movements that have shaped our constitutional tradition. These can provide both positive and negative examples for the present. Not all of the lessons of constitutional memory are positive. Not everyone in the past was heroic, and even people and groups that we celebrate today had serious flaws and failings. Some of the lessons of constitutional memory are deeply ambivalent. But all can be grist for the mill of constitutional construction. When we implement and apply the Constitution in our own time, many different groups and many different people can be makers of constitutional meaning. What matters is what their ideas and experiences mean for the present, and whether they can serve as positive or negative examples for us today.
Download the article from SSRN at the link.

May 19, 2022

Forthcoming, June 2022: Jessica Silbey, Against Progress: Intellectual Property and Fundamental Values in the Information Age (2022) @JSilbey @stanfordpress @BU_Law

Forthcoming: Jessica Silbey, Professor of Law, Boston University, is publishing Against Progress: Intellectual Property and Fundamental Values in the Information Age (Stanford University Press, 2022). Here from the publisher's website is a description of the book's contents.
When first written into the Constitution, intellectual property aimed to facilitate "progress of science and the useful arts" by granting rights to authors and inventors. Today, when rapid technological evolution accompanies growing wealth inequality and political and social divisiveness, the constitutional goal of "progress" may pertain to more basic, human values, redirecting IP's emphasis to the commonweal instead of private interests. Against Progress considers contemporary debates about intellectual property law as concerning the relationship between the constitutional mandate of progress and fundamental values, such as equality, privacy, and distributive justice, that are increasingly challenged in today's internet age. Following a legal analysis of various intellectual property court cases, Jessica Silbey examines the experiences of everyday creators and innovators navigating ownership, sharing, and sustainability within the internet eco-system and current IP laws. Crucially, the book encourages refiguring the substance of "progress" and the function of intellectual property in terms that demonstrate the urgency of art and science to social justice today.