From 1790 to 1891, the United States prevented foreign authors from obtaining domestic copyright protection, implicitly subsidizing a domestic reprinting industry. With foreign works a “free” and unprotected resource, American publishers created a system of voluntary norms, known as “trade courtesy” to create and enforce psuedo- property rights in uncopyrighted foreign works, simulating the effects of legal copyright protection. This paper analyzes this system using the Bloomington School’s Institutional Analysis and Design (IAD) framework to under- stand its effectiveness, and pitfalls, in managing the commons of unprotected foreign works in 19th Century America.Download the document from SSRN at the link.
April 1, 2021
Safner on Honor Among Thieves: How 19th Century American Pirate Publishers Simulated Copyright Protection @ryansafner
March 31, 2021
In May 1852, Charles Perkins decided he wanted his slaves back. Perkins was from Mississippi, but in 1849 he caught gold fever and moved to California in search of easy fortune. When he came, like hundreds of others from the southern states, he also brought an enslaved man with him, and later had two others sent from his family’s plantation. In 1851, following California’s admission to the Union as a free state, Perkins returned to his home in Mississippi, leaving the three men behind. A year later they were in court, litigating the question of whether California’s recently enacted Fugitive Slave Act—which promised the resources of the state to help slaveholders recover their slaves—was constitutional, and with it the larger issue of whether slavery could exist on free soil. The answer, provided five years before Dred Scott, foreshadowed the coming of the Civil War, and firmly planted the West in the middle of the national debate over race, slavery, and the law. This paper is a narrative history of In re Perkins, the case involving Charles Perkins and the three men he maintained were his slaves. In takes place during the Gold Rush and the decade that followed, and it has two primary goals. First, by centering a story about slavery in the American West, it provides a critical lens through which we can explore how the ideological conflicts animating the North-South axis also extended horizontally to the Pacific Ocean. With rare exception, scholars of American slavery and those of the West do not engage in the type of rich discussions that allow for the West to be brought into the national discourse over slavery and the growing sectional crisis. Yet, as In re Perkins demonstrates, these issues very much shaped both the experiences of those who settled the area and the positions of those back east. Second, as a narrative history, this paper also affords an opportunity to dig down deep into the main participants in the case and reconsider who we think the makers and interpreters of the law are. Unlike like most legal histories, which place primary emphasis on court decisions and legislative enactments, the focus here is on how the law was experienced on a local and more nuanced level. By shifting the emphasis from the high courts to the county courtrooms, this paper is part of a larger story of how people of color and their allies turned to the courts in an effort to protect their rights in ways that have not always been understood or appreciated.Download the article from SSRN at the link.
The Senato of Milan was one of the most powerful European courts of justice in the early modern period, and its case law greatly influenced the development of substantive law. Indeed, recent research on the problems of legislation, law and the role of judges today has shone a spotlight on how case law impacts sources of law—and I believe this is an interesting opportunity to examine the issue by looking back on the institutional values and systems that society had in place during the ancien régime, of which the Senato itself was at once an expression and a guarantor.Download the essay from SSRN at the link.
March 30, 2021
Crawford, Jackson, and Hartzel on Stealing Culture: The Internalization of Critical Race Theory Through the Intersection of Criminal Law and Museum Studies
Consider this scenario: You walk into a museum or a collector’s home and take the most valuable item located within. Society, via criminal laws, would label you a thief and your actions as theft, robbery, or some other heinous activity. Yet, when the actors are flipped, and the museum (via its agents) enters the homes or lands of certain peoples, the law labels that 'an acquisition' and the thief turn into 'a collector.' Critical Race Theory (CRT) gives us a legal analytical tool to reconsider these labels, definitions, and outcomes.The full text is not available from SSRN.
The paper concerns the relation between argumentative and narrative features of legal texts and the question whether legal texts can be perceived as narrative texts. A narrative text is understood as transferring a story to the recipient through a given medium. The story, being the content of a narrative text, constitutes a specific way of manifesting the plot. The latter is a sort of internal logic of the story. The very same plot might be told in many different ways. Hence, the narrative text does not depict events directly, but through a story that requires a storytelling agent – the narrator. Certainly, there are different kinds of narrators, who can be more or less exposed within the text. In consequence, there are at least five positions concerning the relation between argumentation and narration in law: 1) sceptic – narration is a negation of the reasonableness of law; 2) narration is a structure of presentation of facts; 3) narration is a means of rhetoric persuasion; 4) narration is a meta-argumentative structure; 5) narration is a subject of critical analysis as it reveals the identity of an author. The theory of narration is applied to a particular problem of participation of professional self-governments in law-making.Download the article from SSRN at the link.
March 24, 2021
Legions of law students in property or trust and estates courses have studied the will dispute, In re Strittmater’s Estate. The cases, casebooks, and treatises that cite Strittmater present the 1947 New Jersey supreme court decision as a model of the “insane delusion” doctrine. Readers learn that snubbed relatives successfully invalidated Louisa Strittmater’s will, which left her estate to the Equal Rights Amendment campaign, by convincing the court that her radical views on gender equality amounted to insanity and, thus, testamentary incapacity. By failing to provide any commentary or context on the overt sexism, these sources affirm the court’s portrait of Louisa Strittmater as an eccentric landlady and fanatical feminist. This is troubling. Strittmater should be a well-known case, but not for the proposition that feminism is an insane delusion. Despite the decision’s popularity on law school syllabi, no scholar has interrogated the case’s broader historical background. Through original archival research, this Article centers Strittmater as a case study in how social views on gender, psychology, and the law shaped one another in the immediate aftermath of World War II, hampering women’s property rights and efforts to achieve constitutional equality. More than just a problematic precedent, the case exposes a world in which the “Champion Man-Hater of All Time”—newspapers’ epithet for Strittmater—was not only a humorous headline but also a credible threat to the postwar order that courts were helping to erect. The Article thus challenges the textbook understanding of “insane delusion” and shows that postwar culture was conducive to a strengthening of the longstanding suspicion that feminist critiques of gender inequality were, simply put, crazy.Download the article from SSRN at the link.
March 22, 2021
Professor Abrams authors a column, Writing it Right, in the Journal of the Missouri Bar. In a variety of contexts, the column stresses the fundamentals of quality legal writing — conciseness, precision, simplicity, and clarity.Download the article from SSRN at the link.
March 19, 2021
ICYMI: Barrett on A New CJ in the Sight of His Predecessor: Stone and Hughes, Summer 1941 @JohnQBarrett @StJohnsLaw
Most Chief Justices of the United States have died in office. And few served initially as an Associate Justice. Thus after the founding period, only two Chiefs—Charles Evans Hughes and Warren E. Burger—ever saw an Associate Justice colleague be appointed to succeed him as Chief Justice. This article chronicles that history. It also describes the rare instance in Summer 1941 of such a succession, and the telegrams and letters that Chief Justice Hughes and his colleague Associate Justice Harlan Fiske Stone exchanged as Hughes retired and Stone was appointed to be his successor.
Download the article from SSRN at the link.
March 15, 2021
This essay, using insights derived from linguistics and the philosophy of language, explores the relationship between how natural language expresses degrees of certainty in the truth of an assertion on the one hand, and how the law handles this issue on the other. The hearsay rule bars certain kinds of speech acts from serving as legal evidence, in particular assertions that report what another person earlier said, and which are offered to express the truth about the events at issue in a case. Some languages actually require that a speaker specify the source of information conveyed. At a trial, the witness will use one expression if he saw the defendant at the relevant time, another expression if he knows this information from having been told, and perhaps a third if he figured it out from the circumstances. Just as English speakers include tense as part of their linguistic expressions, other languages, including Cuzco Quechua (a Peruvian language) and Turkish include information about how the speaker came to know the assertions that he makes. These linguistic elements are called evidentials. In essence, these languages have a built-in identifier of hearsay. They require that the speaker tip off the hearer when a statement is made based on hearsay evidence. In some ways, the use of evidentials mirrors the hearsay rule in law. But in other respects, the two systems differ. This essay introduces the legal community to evidentials, and explores similarities and differences between legal and linguistic rules.Download the essay from SSRN at the link.
March 12, 2021
This article demonstrates that the histories of conquest and slavement are foundational to U.S. property law. Over centuries, laws and legal institutions facilitated the production of the two commodities, or forms of property, upon which the colonial economy and the United States came to depend above all others: enclosures of Native nations’ land and enslaved people. By describing the role of property law in creating markets for lands and people, this article addresses the gap between the marginal place of these histories in the contemporary property law canon and the growing scholarly and popular recognition that conquest and enslavement were primary modes of property formation in American history. First, this article describes how the field of property law has come to omit these histories from its common understanding of what is basic to its subject by examining property law casebooks published over 130 years. For most of their history, it shows, such casebooks affirmed the racial logic of conquest and slavery and contributed to these histories’ suppression in pedagogical materials. Early treatises avowed the foundational nature of conquest, but after the first property law casebook appeared, at the time of the close of the frontier, casebooks for more than half a century emphasized English inheritance, rather than acknowledging colonization’s formative impact on the property system. In the same period, the era of Jim Crow, casebooks continued to include many cases involving the illegal, obsolete form of property in enslaved people; when they ceased to do so, they replaced them with cases on racially restrictive covenants upholding segregation. After several decades, during which the histories of conquest and slavery were wholly erased, casebooks in the 1970s began to examine these histories through a critical lens for the first time. However, the project of understanding their consequences for the property system has remained only partial and highly inconsistent. The central part of this article focuses on the acquisition of property, which, properly understood, comprises the histories of conquest, slavery, expropriation, and property creation in America. It examines the three main theories of acquisition—discovery, labor and possession-- beginning with the United States’ adoption of the Discovery Doctrine, the international law of conquest, as the legal basis of its sovereignty and property laws. In this context, it shows that the operative principle of the doctrine was not that of first-in-time, as commonly taught, but the agreement of European nations on a global racial hierarchy. Second, it turns to the labor theory, which was selectively applied according to the hierarchy of discovery, and firmly linked ideologies about non-whites and property value. It then reframes the labor theory’s central question—property creation—as a matter of legal and institutional innovation, rather than merely agricultural labor. It examines the correlation between historical production of property value in the colonies to show how the main elements of the Angloamerican land system developed through the dispossession of nonwhites-- the rectangular survey, the comprehensive title registry, headrights and the homesteading principle, laws that racialized the condition of enslavement to create property in human beings, and easy mortgage foreclosure, which facilitated the trade of human beings and land as chattel to increase colonists’ wealth. Third, it assesses how the state organized the tremendous force required to subvert others’ possession of their lands and selves, using the examples of the strategy of conquest by settlement and the freedom quests that gave rise to the fugitive slave controversy. Its analysis highlights the state’s delegation of violence and dispossession to private actors invested in the racial hierarchy of property through the use of incentives structured by law. This article concludes by summarizing how the laws that governed conquest and slavery established property laws, practices, and institutions that laid the groundwork for transformations to interests in land after the abolition of slavery, which I will address in a future companion article. This article aims throughout to offer a framework for integrating the study of English doctrines regulating relations between neighbors-- the traditional focus of a property law course—into an exploration of the unique fruits of the colonial experiment -- the singular American land system that underpins its real estate market and its structural reliance on racial violence to produce value.
March 11, 2021
This article argues that the Canadian judicial attachment to the unwritten Constitution is faith-like. The faith-like aspects of this jurisprudence include the following explicit and implicit commitments:
1. The Constitution is incompletely and imperfectly stated by the constitutional text;
2. The Constitution is revealed through the act of interpretation in glimpses over time to authoritative interpreters;
3. The unwritten Constitution has provided and will provide reliable and morally good guidance for action, sometimes overtaking the written text of the Constitution; and
4. The precise nature and location of the Constitution eludes description, leading to reliance on metaphors and references to tradition.
This matters because the Canadian Constitution is often called upon, through the courts, to settle disputes surrounding religious practices. In resolving such disputes, the law must claim some form of authority over religion. I claim that the Court normatively justifies this assertion of authority by implicitly contrasting its own rationality with religion’s faith-based way of encountering the world. This claim is unstable because of the faith-like aspects of the law. This, however, is not a reason to overhaul the case law. It is instead a reason for judicial humility.Download the article from SSRN at the link.
March 5, 2021
Gerber on The Intellectual History of European Laws About Religious Toleration Prior to the Planting of English America
Law matters, and laws about religion matter a lot. Both the European laws about religious toleration prior to the planting of English America and the laws about religious toleration enacted by the settlers who founded English American colonies for religious reasons employed law primarily as a means of social control. European monarchs wanted power, and they utilized laws about religion to help them acquire it and maintain it. The leaders of the English American colonies planted for religious reasons used law to effectuate their designs: to foster religious toleration in those colonies committed to that animating principle (Maryland, Rhode Island, and Pennsylvania); to try to create an ideal Bible commonwealth for the colonies dedicated to the idea that religion must be practiced as God had ordained (Connecticut and Massachusetts). In short, the settlers of English America were impacted by the European laws about religious toleration that preceded their voyages to the New World. The planters of religiously tolerant colonies tried to learn from what they regarded as Europe’s mistakes, while those who strove for religious purity rejected the prevailing European notion that divine sovereignty must occupy a decidedly secondary place to the sovereignty of the state.Download the article from SSRN at the link.
March 4, 2021
In 2019 I started to work on a small volume on the popular TV franchise 'Game of Thrones' from a political theory perspective; convinced that the show’s plot means not only to expose oneself to the thrills of a sex- and violence-laden fantasy adventure. Watching ‘Game of Thrones’, I thought, requires to do more than simply love or hate the protagonists as they fail or succeed in fighting, scheming and plotting their way to the ‘Iron Throne’. It requires to make political judgments about the agents and their actions. Thus: why not use the characters of the show, the challenges they face, the institutions that determine their fate and the social and legal norms that govern their conduct as a background for an essay in political theory? Save for one chapter, alas, the book has never been written. This chapter (originally intended to be the sixth) focuses on the 'Night's Watch'.Download the article from SSRN at the link.
March 2, 2021
Newly Published: Alexander Lian: Stereoscopic Law: Oliver Wendell Holmes and Legal Education (Cambridge University Press, 2020) @CambridgeUP
Alexander Lian has published Stereoscopic Law: Oliver Wendell Holmes and Legal Education (Cambridge University Press, 2020). Here from the publisher's website is a description of the book's contents.
In this unique book, Alexander Lian, a practicing commercial litigator, advances the thesis that the most famous article in American jurisprudence, Oliver Wendell Holmes's “The Path of the Law,” presents Holmes's leading ideas on legal education. Through meticulous analysis, Lian explores Holmes's fundamental ideas on law and its study. He puts “The Path of the Law” within the trajectory of Holmes's jurisprudence, from earliest scholarship to The Common Law to the occasional pieces Holmes wrote or delivered after joining the U.S. Supreme Court. Lian takes a close look at the reactions “The Path of the Law” has evoked, both positive and negative, and restates the essay's core teachings for today's legal educators. Lian convincingly shows that Holmes's “theory of legal study” broke down artificial barriers between theory and practice. For contemporary legal educators, Stereoscopic Law reformulates Holmes's fundamental message that the law must been seen and taught three-dimensionally.
The book is available through Cambridge Core.
February 26, 2021
Call For Papers: FRANKENLAW: Critical Legal Conference 2021, University of Dundee, September 2-4 @thomgiddens
The Call For Papers for FRANKENLAW, the Critical Legal Conference 2021, University of Dundee, September 2-4, is now open. It will close on March 31, 2021.
Information and queries: firstname.lastname@example.org
I lived principally in the country as a girl, and passed a considerable time in Scotland. I made occasional visits to the more picturesque parts; but my habitual residence was on the blank and dreary northern shores of the Tay, near Dundee. Blank and dreary on retrospection I call them; they were not so to me then. They were the eyry of freedom, and the pleasant region where unheeded I could commune with the creatures of my fancy.Mary Shelley, preface to the 1831 edition of Frankenstein, or The Modern Prometheus
Dundee had an embryonic role in the creation of Mary Shelley’s novel Frankenstein. Approaching the northern fringes of the United Kingdom, Dundee’s ‘eyry of freedom’ helped shape the imaginary that would result in Shelley’s famous text, and the infamous and unnatural conglomeration that it unleashed upon the world. Shelley’s reconstituted monster, created by Dr Frankenstein in his experimentations with the fringes of life, has become a cultural icon from page to stage to screen, and beyond. In taking it as inspiration for the theme of the delayed Critical Legal Conference 2021, Frankenstein’s monster is reformulated as a rich and productive concept that encounters many of the multiple and profound tensions of modern law.
Frankenstein’s monster is typically characterised by the joining together of dead parts to constitute a reanimated whole, brought (back) to life by the power of modern science. As a conceptual figure, it thus becomes a notion of both unity and separation, of life and death, and of the power of reason to structure and animate otherwise individual and decaying parts. Rendered as a form of law—as a Frankenlaw—it conjures questions of detachment and community, of touching and separation, of independence and being bound, of unity and corporation, of the rational resolution of multiplicity—and of the modern social order: a divided whole, a community of atomistic modern subjects under a single, sovereign hierarchy.
Partaking in critical legal studies at Dundee, in the temporal shadow of Mary Shelley’s nascent imagination, it seems appropriate to let the theme of Frankenlaw permeate our reflections. To think with Frankenlaw is to encounter questions of corporate personhood, of the relationship between life and science, of bodies and their parts, of post-state or post-sovereign modes of power, of law as dead things (texts, buildings, victims) compiled and brought to life in different ways, of the possibility of unifying plurality, of community and modern subjecthood. It is an invitation and an opportunity to construct new concepts and modes of legal thought out of dead and useless ones, to animate our encounters with law in controversial and provocative ways, to seek to go beyond the boundaries of reason and modernity and see what we find.
Huddled around the thought of law, the dark of the uncritical creeping in, we shall make ghost stories of our own—we shall conjure for one another our own terrifying and inspiring visions … of Frankenlaw!
February 25, 2021
Call for Papers: International Roundtables for the Semiotics of Law--IRSL 2021. The roundtables are scheduled for June 17-18, 2021, online. Frank Fleerackers is the organizer, and the Leuven University Faculty of Law will host the event, which is in honor of Jan M. Broekman's 90th birthday.
Newly Published: Sal Nicolazzo, Vagrant Figures: Law, Literature, and the Origins of the Police (Yale University Press, 2021) @yalepress
In this innovative book demonstrating the important role of eighteenth-century literary treatments of policing and vagrancy, Nicolazzo offers a prehistory of police legitimacy in a period that predates the establishment of the modern police force. She argues that narrative, textual, and rhetorical practices shaped not only police and legal activity of the period, but also public conceptions of police power. Her extensive research delves into law and literature on both sides of the Atlantic, tracking the centrality of vagrancy in establishing police power as a form of sovereignty crucial to settler colonialism, slavery, and racial capitalism. The first book in several generations to address policing and vagrancy in the eighteenth century, and the first in the field to center race and empire in its account of literary vagrancy, Nicolazzo’s work is a significant contribution to the field of eighteenth-century literary and cultural studies.
February 24, 2021
Gould on Natural Law and the "Resistance": A Normative Approach to the Skywalker Narrative in "The Last Jedi"
The motion picture The Last Jedi involves important decisions and actions taken by the protagonist of the original Star Wars trilogy, Luke Skywalker. It will be argued that Luke’s narrative in The Last Jedi can be explored through analysing new natural law thought. In particular it draws on Robert P. George’s discussion of the good (human flourishing) to consider whether the opposition provided by Luke Skywalker can been seen as a successful form of opposition to restore public morality. The contrast between Skywalker’s morality and the behaviour of the First Order will be established. It will be argued that the Skywalker narrative symbolises public morality against the politics of the First Order. It will be analysed whether Luke’s sacrifice in The Last Jedi can provide legal restraint to a militant invading force. This will further be shown to be helpful to legal philosophy in negotiating the boundaries over natural rights. As such, it will be shown that key features of George’s natural law reasoning can be usefully applied to examine Luke’s actions, and this will shed light upon concepts such as liberty, sacrifice and fear. Legal idealism in the form of natural law will provide further insight into the jurisprudence that pervades Luke’s narrative arch to demonstrate the film’s wider relevance.
February 23, 2021
Canadian constitutional history, since France ceded Canada to the British Crown, can be divided into five broad stages: the beginning of the British colonial regime, the establishment of “responsible government,” the establishment of the federal system, independence, and finally federal-provincial relations and patriation of the Constitution. The Constitution of Canada is made of a number of components that include certain British Acts and decrees, certain federal and provincial laws, constitutional conventions, the common law and case law, and, to a lesser extent, certain secondary sources, such as legal commentaries and literature, and federal-provincial agreements. The purpose of this chapter is twofold. On the one hand, it is to conduct a very brief review of the major periods of Canadian constitutional history and, on the other, to present the various formal components of Canada’s Constitution.Download the chapter from SSRN at the link.
This chapter first considers the direction of the affirmative defense of legal insanity in the United States before John Hinckley was acquitted by reason of insanity in 1982 for attempting to assassinate President Reagan and others and the immediate aftermath of that acquittal. Since the middle of the 20th Century, the tale is one of the rise and fall of the American Law Institute’s Model Penal Code test for legal insanity. Then it turns to the constitutional decisions of the United States Supreme Court concerning the status of legal insanity. Finally, it addresses the substantive and procedural changes that have occurred in the insanity defense since the wave of legal changes following the Hinckley decision.Download the chapter from SSRN at the link.
February 22, 2021
Creepiness and the emotion of the creeps have been overlooked in the moral philosophy and moral psychology literatures. We argue that the creeps is a morally significant emotion in its own right, and not simply a type of fear, disgust, or anger (though it shares features with those emotions). Reflecting on cases, we defend a novel account of the creeps as felt in response to creepy people. According to our moral insensitivity account, the creeps is fitting just when its object is agential activity that is insensitive to basic moral considerations. When, only when, and insofar as someone is disposed to such insensitivity, they are a creep. Such insensitivity, especially in extreme forms, raises doubts about creeps’ moral agency. We distinguish multiple types of insensitivity, respond to concerns that feeling the creeps is itself objectionable, and conclude with a discussion of epistemic issues relating to the creeps.Download the article from SSRN at the link.
February 20, 2021
Schwabach on Bringing the News from Ghent to Axanar: Fan Works and Copyright After Deckmyn and Subsequent Developments @UARKLaw
Fan works offer a lens through which to view the complex future of copyright law. Recent years have seen an explosion in academic interest in fan works, for reasons including the ongoing crisis in copyright law, changes in the way we consume copyrighted content, and increasing interest in fandom itself. Scholarship on fan works has continued to explore the key questions of fair use, parody, and First Amendment protection that allow fan works to exist yet fail to clearly delineate the boundaries of the legal twilight zone in which they reside and thrive. It has also continued to address the intersection between fanfic and gender and what this says about the gendered nature of intellectual property law. Much has also been written about the future of copyright in general, and of fan works in particular, often looking at fan works from new perspectives, including law and economics and the closely related vexing problem, for content owners, of how to address possible infringement without alienating the fanbase. This article looks at recent developments relating to fanfic first by looking at the historical context and current state of fan works, and next by looking at story elements and the ways in which they are and are not protected by copyright. The article devotes special attention to the related issues of cultural appropriation and reinterpretation, looking at Own Voices stories and street murals as a means of reclaiming a right to cultural property appropriated by others. The article then looks at the shrinking space for online fan works, with a look at two fairly recent decisions dealing with works based on existing popular culture franchises. One, Paramount Pictures Corp. v. Axanar Productions, deals with true fan art (a Star Trek fan film), while the other, Deckmyn v. Vandersteen, deals with hate speech masquerading as fan art. Ultimately the article concludes that there is both good and bad news for fans in the current situation. The good news is that the formerly frustratingly nebulous legal status of fan works is increasingly coming to be understood by fan work creators, courts, and content owners. The bad news is that the balance of powers in copyright generally, is increasingly shifting to large content owners.Download the article from SSRN at the link.
February 15, 2021
Journal for the History of Knowledge Publishes Special Issue: "Histories of Bureaucratic Knowledge" @jhokjournal
The Journal for the History of Knowledge has published its Special Issue, "Histories of Bureaucratic Knowledge," edited by Sebastian Felten and Christine von Oertzen. Here is a link to the Special Issue.
Contributions: Sixiang Wang, Chosŏn’s Office of Interpreters: The Apt Response and the Knowledge Culture of Diplomacy John Sabapathy, Making Public Knowledge—Making Knowledge Public: The Territorial, Reparative, Heretical, and Canonization Inquiries of Gui Foucois (ca. 1200–1268) Susanne Friedrich, Caveat from the Archive: Pieter van Dam’s Beschryvinge van de Oostindische Compagnie and Crisis Management Harun Küçük, The Bureaucratic Sense of the Forthcoming in Seventeenth-Century Istanbul Sebastian Felten, Sustainable Gains: Dutch Investment and Bureaucratic Rationality in Eighteenth-Century Saxon Mines Maura Dykstra, A Crisis of Competence: Information, Corruption, and Knowledge about the Decline of the Qing State Kathryn M. Olesko, The Indaganda Survey of the Prussian Frontier: The Built World, Logistical Power, and Bureaucratic Knowledge in the Polish Partitions, 1772–1806 Anna Echterhölter, Shells and Order: Questionnaires on Indigenous Law in German New Guinea Theodore Porter, Revenge of the Humdrum: Bureaucracy as Profession and as a Site of Science.
The Journal for the History of Knowledge is an open access, peer-reviewed journal.
February 13, 2021
Tzanaki on The Interbeing of Law and Economics: Building Bridges, Not Walls--Interdisciplinary Scholarship and Dialectic Pedagogy @AnnaTzanaki
Some fifty years ago, Pink Floyd topped the music charts irreverently vocalizing the idea that education is just “Another Brick in the Wall.” Should this popular enchantment of hearts and minds cause alarm to professional teachers and higher education scholars? How much relevance does the progressive rock band’s verse have to the spirit of contemporary academy? A calmer, more composed reaction of educators would be one of constructive introspection over disciplinary and our own pedagogical practice. It is important to pause for a moment and ask what the enduring value, function and role of university education in the 21st century are. In the modern-day “knowledge society,” where the sources and means of learning abound, formal education is to be regarded as a tool of individual empowerment and “enlightenment” rather than some off-the-shelf commodity to be provided en masse. By this view, academic training is a building block in creating sustainable and inclusive societies and not merely a functional production machine of a future skilled workforce. With this mission clear, could it be said that legal education today is up to task? Could the discipline of law expand, learn and be enriched by other disciplines? In an equally irreverent manner, this article claims that connecting Law with Economics may recast the image of scholarly education as a cross-disciplinary bridge, instead of a brick wall, in the quest for finer quality and resilience in the curriculum and beyond.Download the essay from SSRN at the link.
During the "Age of Empire" (1800-1920), the concepts of "Liberty" and the "Rule of Law" were subject to various contested understandings or "visions". This chapter examines how these visions were reflected through different cultural outputs, ranging across literature, painting, music and cartoons.Download the essay from SSRN at the link.
February 12, 2021
McGlynn on Moving From Written Records To Bureaucratic Mind: Imagining a Criminal Record @ArsScripta
Via Simon Stern, Professor of Law, University of Toronto:
Margaret McGlynn, University of Western Ontario, has published From Written Record to Bureaucratic Mind: Imagining a Criminal Record, at 250 Past & Present 55-86 (2021). Here is the abstract.
In 1518 the chief justice of King’s Bench initiated an attempt to track successful claims of benefit of clergy on the assize circuits to ensure that laymen could make such claims only once, as mandated by a statute dating from 1490. By doing so he was the first to attempt to create a criminal record in England, where an individual felon’s crimes were recorded with the expectation that an earlier crime would have implications for the punishment of a subsequent one. Both this attempt and a later statutory attempt in 1543 were largely unsuccessful, however. They failed, not because of principled opposition or even inertia, but because the well-established bureaucratic structures of the early Tudor period struggled to keep up with the bureaucratic imagination of those who sought to reform or extend the reach of government. The failed attempt to construct a criminal record demonstrates that as the development of print changed information cultures, and the policies of the Tudors led to an intensification of governance, legal records remained profoundly limited by the intellectual and administrative structures within which they operated. Masters of the gathering of information, Tudor governors struggled to adapt old documents to new purposes or to manage information dynamically.
The right to trial in civil cases is enshrined in the United States Constitution and most state constitutions. Most people, laypersons and legal professionals alike, consider trials an essential component of American democracy. But real life civil trials are disappearing from the American legal landscape. Films, like books designed for consumption by the general public, are cultural documents that embody a society’s attitudes about and views of the law and the legal system. Courtroom films are the most easily recognizable and popular subset of films about law because they provide the stage for an examination of some aspect of a trial—juries, lawyers, litigants, laws or the legal process itself. Some legal commentators contend that legal films have the capacity to teach and encourage film audiences to think more critically about the legal system. But most trial films involve criminal cases. Thus this essay asks whether the distinction between criminal and civil films trials is important when determining the impact of the decline in real-life civil trials on American popular culture and courtroom films in particular.Download the article from SSRN at the link.
February 10, 2021
Newly Published: Peter Goodrich: Advanced Introduction To Law and Literature (Edward Elgar, 2021) @ElgarPublishing
Peter Goodrich presents a unique introduction to the concept of jurisliterature. Highlighting how lawyers have been extraordinarily productive of literary, artistic and political works, Goodrich explores the diversity and imagination of the law and literature tradition. Jurisliterature, he argues, is the source of legal invention and the sign of novelty in judgments.
February 9, 2021
Shakespeare has been quoted and invoked in numerous contexts, but, inexplicably, the insights his immortal words bring to tax law have been ignored. This short and lighthearted piece begins to fill that gap. Expanding on my remarks in accepting the 2009 Dana Latham Memorial Award from the Los Angeles County Bar Association Taxation Section, I discuss quotations from Shakespeare’s plays that illuminate important tax doctrines.Download the article from SSRN at the link.
Patent law promotes innovation by giving inventors 20-year-long exclusive rights to their inventions. To be patented, however, an invention must be “enabled,” meaning the inventor can actually describe it in enough detail to teach others how to make and use the invention at the time the patent is filed. When inventions are not enabled, like a perpetual motion machine or a time travel device, they are derided as “mere science fiction”—products of the human mind, or the daydreams of armchair coots, that are not suitable for the patent system. This Essay argues that, in fact, the literary genre of science fiction has its own unique—albeit far laxer—enablement requirement. Since the genre’s origins, fans have demanded that the inventions depicted in science fiction meet a minimum standard of scientific plausibility. Otherwise, the material is denigrated as lazy hand- waving or, worse, “mere fantasy.” Taking this insight further, the Essay argues that, just as patents positively affect the progress of science and technology by teaching others how to make and use real inventions, so too can science fiction, by stimulating scientists’ imagination about what sorts of technologies might one day be possible. Thus, like patents, science fiction can have real world impacts for the development of science and technology. Indeed, the Essay reveals that this trajectory—from science fiction to science reality—can be seen in the patent record itself, with several famous patents tracing their origins to works of science fiction.Download the article from SSRN at the link.
February 8, 2021
Who were Adam Smith’s lost loves, and how does the enigma of Smith’s love life inform his defense of personal and economic liberty? With a view toward systematizing the available evidence and extending the work of previous scholars, I will re-assemble all the admissible amorous evidence, subject such facts to critical scrutiny, and draw reasonable inferences from these sundry proofs. First, I will present four pieces of primary evidence regarding Adam Smith’s lost loves. Secondly, I will make several new conjectures and revisit several intriguing hypotheses concerning Doctor Smith’s sexuality and romantic attachments. Thirdly, I speculate about Smith’s adamant desire to have his private papers and correspondence destroyed upon his death and about the possibility of a lost travel diary from his Grand Tour of France, and lastly, I will consider two additional clues that may shed light on this amorous enigma. Specifically, I will revisit Adam Smith’s analysis of love and lust in The Theory of Moral Sentiments, and I will conclude this paper by exploring the geographical dimension of Adam Smith’s enigmatic love life: the strict ecclesiastical regulation of sex in the Scotland of Doctor Smith’s youth.Download the article from SSRN at the link.
Lash on The 1791 Amendments as the "Bill of Rights," Founding To Reconstruction (A Response To Revisionists) @URLawSchool
Unlike the “Declaration of Rights” annexed to many state constitutions, the ten amendments added to the federal Constitution in 1791 have no formal title at all. It is only by cultural tradition that Americans refer to these provisions as our national “Bill of Rights.” Until recently, most scholars assumed that this tradition could be traced back to the moment of ratification. Over the last decade or so, however, a number of scholars have challenged this assumption. These “Bill of Rights revisionists” claim that Americans did not commonly refer to the first ten amendments as “the bill of rights” until the twentieth century. Prior to that, most Americans either did not believe they had a national bill of rights or they would have more likely pointed to the Declaration of Independence as the country’s “bill of rights” than to the 1791 amendments. If the revisionists are right, then a substantial portion of constitutional historical scholarship is shot through with historical error, in particular scholarship supporting the incorporation of the Bill of Rights as part of the Fourteenth Amendment. This essay examines the historical record in order to determine whether the claims of the Bill of Rights revisionists are correct. It presents the results of an exhaustive investigation of political, legal and cultural references to the “bill of rights” from the time of the Founding to Reconstruction (and beyond). These references, most of which are presented here for the first time, suggest that the revisionist claims about the ten amendments are false. Long before the twentieth century, and decades before Reconstruction, Americans commonly referred to the first ten constitutional amendments as “the Bill of Rights.” Moreover, references to the 1791 amendments as the national bill of rights vastly outnumber historical references to the Declaration of Independence as a “bill of rights,” and indicate that nineteenth century Americans were not at all confused about the meaning and content of their national “Bill of Rights.” If any “revision” is in order, it is the need to (1) revisit and revise our understanding of the original theoretical role played by the Bill of Rights at the time of the Founding and (2) recognize the remarkably broad coalition of Americans who, by the time of Reconstruction and the Fourteenth Amendment, embraced an altogether different theory of the 1791 amendments.Download the article from SSRN at the link.
February 6, 2021
ICYMI: Peter Leman, Singing the Law: Oral Jurisprudence and the Crisis of Colonial Modernity in East African Literature (Liverpool University Press, 2020) @BYU @LivUniPress
Peter Leman, Department of English, Brigham Young University, has published Singing the Law: Oral Jurisprudence and the Crisis of Colonial Modernity in East African Literature (Liverpool University Press, 2020).
February 5, 2021
Volume 35 of the Journal of Law and Religion (December 2020) is now available. Here's a link to the table of contents.
Among the very interesting pieces: Cuilan Liu, "The Fall of a Chinese Buddhist Monk: Law and State Governance of Buddhism in Post-Imperial China," and a book review of Nathan C. Walker's "The First Amendment and State Bans on Teacher's Religious Garb (Routledge, 2020) by Ashley Rogers Berner.
ICYMI: Sherwin on Law's Enchantment: The Cinematic Jurisprudence of Krzysztof Kieslowski @RKSherwin @OxUniPress
Mythos begets nomos. In myth begins the normative universe in which we live. Law emerges to maintain that universe, and to foreclose others. Law polices the normative reality through the official stories that it tells, for these are the stories whose meanings are backed by the force of the state. But law's stories are often shaped and informed by popular narratives from the culture at large. This shared process of narrative production, adaptation, and critique attests to law's deep entanglement in the meaning-making function of culture.The full text is not available from SSRN.
January 29, 2021
Knowles on Learning the Law in 1830s Massachusetts: The Contrasting Experiences of Wendell Phillips and Lysander Spooner @KnowlesGardner
In the 1840s, Lysander Spooner and Wendell Phillips espoused opposing abolitionist interpretations of the United States Constitution. The former argued that the document did not sanction the enslavement of human beings, the latter denounced the text as a proslavery “covenant with death, and an agreement with hell.” This essay explores the effects of their contrasting legal educations on these theories. In the 1830s, Spooner worked as a legal apprentice under the tutelage of John Davis, Charles Allen, and Emory Washburn, three prominent lawyers (and politicians) working in Worcester, Massachusetts. By contrast, Phillips, consistent with his Boston Brahmin ancestry, attended the then-nascent Harvard Law School. The essay concludes that Spooner’s legal philosophy shows a far greater indebtedness to his legal education than does Phillips’s. This argument is defended by drawing on the voluminous correspondence and papers of both Phillips and Spooner, and the writings of their legal tutors and mentors.Download the article from SSRN at the link.
January 28, 2021
I loved reading Bernadette Meyler’s Theaters of Pardoning, largely because of the way she feasts at the well-laden table of 17th century British theater as she discerns themes of mercy by the powerful. It is also exactly the right time to revisit clemency’s trajectory through Western civilization, as we rebound from a practitioner, Donald Trump, who used it as an extension of his own ego. In the end, though, the book was a great meal that still left me hungry, in that it never really tried to connect clemency’s historical path to the very real challenges we face today.Download the essay from SSRN at the link.
January 27, 2021
Newly Published: Jacqueline D. Lipton, Law and Authors: A Legal Handbook For Authors (2020) @PittLaw
Jacqueline D. Lipton, University of Pittsburgh Law School, has published Law and Authors: A Legal Handbook For Authors (University of California Press, 2020). Here from the publisher's website is a description of the book's content.
Everything a writer needs to know about the law. This accessible, reader-friendly handbook will be an invaluable resource for authors, agents, and editors in navigating the legal landscape of the contemporary publishing industry. Drawing on a wealth of experience in legal scholarship and publishing, Jacqueline D. Lipton provides a useful legal guide for writers whatever their levels of expertise or categories of work (fiction, nonfiction, or academic). Through case studies and hypothetical examples, Law and Authors addresses issues of copyright law, including explanations of fair use and the public domain; trademark and branding concerns for those embarking on a publishing career; laws that impact the ways that authors might use social media and marketing promotions; and privacy and defamation questions that writers may face. Although the book focuses on American law, it highlights key areas where laws in other countries differ from those in the United States. Law and Authors will prepare every writer for the inevitable and the unexpected.
January 24, 2021
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.
January 22, 2021
Newly Published: Painting Constitutional Law: Xavier Cortada's Images of Constitutional Rights, edited by M. C. Mirow and Howard W. Wasserman @BrillPublishing
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.
January 21, 2021
InterLaw Guest Lecture, February 24, 2021, Features Katharina Pistor, Columbia Law School @KatharinaPistor @ThomGiddens @LawDundee @PrincetonUPress
January 18, 2021
Sharp on #Vulnerability--Expectations of Justice Through Accounts of Terror of Twitter @popgoesthelegal @OxfordCSLS
January 15, 2021
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.
January 12, 2021
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.
January 9, 2021
Ricca on Perpetually Being Astride Eden's Boundaries: The Limits to the "Limits of Law" And the Semiotic Inconsistency of "Legal Enclosures" @AnneWag26082949
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.
January 8, 2021
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.
January 6, 2021
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.