September 30, 2022

Andrew Majeske on Greta Olson, From Law and Literature To Legality and Affect (Oxford University Press) @NASJ_org @Greta_Olson_ @OxUniPress

Andrew Majeske, John Jay College of Criminal Justice, has published a review of Greta Olson, From Law and Literature to Legality and Affect (Oxford University Press) (forthcoming October 10, 2022), in the New American Studies Journal: A Forum.  


 

September 26, 2022

Crawford and Afield on How Yesterday's Protestor May Be Tomorrow's Saint: Reimagining the Tax System Through the Work of Dorothy Day @HaubLawatPace @ProfBCrawford @ProfAfield @GeorgiaStateLaw @nyulaw

Bridget J. Crawford, Pace University School of Law, and W. Edward "Ted" Afield, Georgia State Univeristy College of Law, are publishing Yesterday's Protestor May Be Tomorrow's Saint: Reimagining the Tax System Through the Work of Dorothy Day in the Tax Law Review. Here is the abstract.
When is the nonpayment of taxes justified by conscientious objections? Legendary Catholic social activist Dorothy Day refused to pay federal income taxes, because she was an avowed pacifist who also cautioned against government overreach into the lives of citizens. This article asks whether the tax system should accommodate those who have moral objections, and if so, how accomplish that. Through the lens of Dorothy Day, who devoted her adult life to workers’ rights, pacificism, and service to the poor, this article makes three contributions to the conversation about the administration of a fair tax system. First, the article examines Day on her own terms. It is difficult, but not impossible, to reconcile Day’s tax resistance with the Catholic social teaching on taxation that was emerging during her lifetime. Second, the article considers what insights Catholic doctrine offers into the structure and substance of a just tax system. Although there is not as much theological writing on taxation as there is on other social issues, Catholic social teaching does provide some guidance about the purpose, form and operation of a just tax system. From these insights, the article moves to suggest specific improvements to the tax system: formal mechanisms that bring conscientious objectors into tax compliance; enhanced communication about the tax system’s role in administering the country’s most effective anti-poverty programs; and enforcement priorities that do not disproportionately target the poor. While these proposals might not be sufficient to have caused a steadfast antiwar protestor like Day to pay taxes, they illuminate a path toward much-needed reforms of the federal income tax system.
Download the article from SSRN at the link.

September 22, 2022

Guerra-Pujol on Coase's Parable @PUCPR1

F. E. Guerra-Pujol, Pontifical Catholic University of Puerto Rico, is publishing Coase's Parable in the Mercer Law Review. Here is the abstract.
Some stories have heroes and villains. Others involve a voyage, a quest, or a monster to be defeated. The law is no exception. Broadly speaking, most legal stories are generally about identifying wrongdoers and vindicating the rights of victims, but what if harms are “reciprocal” or jointly-caused? In other words, what if victims are just as responsible as wrongdoers for their plight? It was Ronald Coase who first proposed this novel counter-narrative to the standard victim-wrongdoer narrative in law. Researching and writing in the late 1950s and early 1960s, Professor Coase--an obscure, middle-aged English economist at the time--plucked a number of leading cases from the English Law Reports and other sources. Coase then used these old cases to create a compelling but controversial legal counter-narrative: compelling because Coase’s parable forever changed the way many economists, lawyers, and judges see the law; controversial because it was Coase who first conceived of harms as a “reciprocal” problem. Simply put, whenever one party accuses another party of harming them, it is almost always the case that both parties are responsible for the harm--that is the essence of Coase’s novel and unorthodox parable.
Download the article from SSRN at the link.

September 21, 2022

Costello on Courtroom Dialogues and Feminist Legal Theory in Irish Literature

R. A. Costello, Dublin City University, School of Law and Government, has published Courtroom Dialogues and Feminist Legal Theory in Irish literature at 20 Irish Studies Review 370 (2020). Here is the abstract.
This article examines the use of courtroom dialogues in two of the leading works of Irish language literature, and how they acted, at the time of their writing, as a mechanism which permitted both author and audience to question societal attitudes to female agency and sexuality – and how they continue to facilitate such critical reflection contemporaneously. Specifically, the piece examines the use of courtroom dialogues in Cúirt an Mheán Oíche by Brian Merriman (CMO) written around 17802 and in An Triail by Máiréad Ní Ghráda (AT) originally performed in 1965 and published in 1978. Both pieces, written nearly two centuries apart, use courtroom dialogues, and the formal mechanisms of testimony and cross-examination to articulate and critique the social subordination of women portrayed in the texts, and to question the restraints on female agency and sexuality imposed by the societies in which their characters exist. Through the works’ use of judicial settings and dialogues both texts articulate a feminist theory of law which aligns with Catherine McKinnon’s dominance theory.
N.B. SSRN indicates the article is not available for download but the author indicates it is available open access. The website shows the content might be available for purchase or through institutional subscription.

Howe and Peterson on Law and Art In the Aftermath

Steven Howe, University of Lucerne, and Laura Petersen, University of Melbourne, have edited a special focus section of Pólemos: Journal of Law, Literature and Culture, on ‘Law and Art in the Aftermath’.

 

Aftermath is a “peculiar concept” (Frank Möller). Frequently invoked, in both popular and academic discourse, it is rarely theorised, or even explicitly considered. What is the aftermath? Where is it? When does it begin, when does it end? What comes after the aftermath – what endures and what passes, what is transformed and what emerges new? Does all life carry the “taint of aftermath” (Joseph O’Neill)? Are we ever not, in some sense, in the aftermath?

 

The contributions in this special focus section revisit the idea of aftermath as it relates to critical matters of law, justice and jurisprudence. They pose new questions of the concept, and look again at what it means to be in the aftermath – legally, politically and experientially. At the same time, they offer fresh takes on the resonances of law and art as they move alongside, through and against one another across distinct legal, political and critical aftermaths.

 

Featuring essays by: Eliza Garnsey, Paul Gough, Connal Parsley, Clotilde Pégorier and Lars Waldorf.

 

Access via the link above.

 

September 16, 2022

von Bernstorff and Mayer on The Historical School and German 19th Century Contributions to International Legal Thought

Jochen von Bernstorff, University of Tuebingen, Faculty of Law, and Max Mayer, University of Tuebingen, have published The Historical School and German 19th Century Contributions to International Legal Thought. Here is the abstract.
In the second half of the 19th century, European international law became what Western international lawyers up until the 1930s conceived of as international law. The transformative process during that time led to the establishment of a number of important concepts: the modern notion of the sovereign state as the foundational unit of an international legal order based on common consent; a dualist notion of customary law as an empirical emanation (state practice) of a common legal “consciousness”; post-natural law concepts of a ius ad bellum, sovereign equality, the balance of power, a (constitutive) recognition-doctrine; and the closely connected Eurocentric legal dichotomy of a “civilized” core of Western states and a non-Western periphery. The rise of these concepts was shaped by major political, ideological, jurisprudential and philosophical currents during the long 19th century.The contribution will disentangle some of the most important 19th century doctrinal developments and the associated German jurisprudential theories. In a first step we will describe the reception of the Historical School in international legal scholarship and its doctrinal implications for a modern theory of customary law. As a second step we will reconstruct the contribution of German theories of the sovereign will of the state as the formal basis of international law [Staatswillenspositivismus] leading to new theories of “common consent” and recognition. These two broader developments shaped the last decades of the 19th century and would have long lasting implications for modern international law. Despite the reformist rhetoric of our main scholarly protagonists, both the new historicist foundation of international law in custom and the late 19th century turn to multilateral treaties and common consent were regarded by late 19th century contemporaries as complementing each other. German Staatswillenspositivismus à la Jellinek or Oppenheim developed its theories on “common civilised consent” inside the new historicist foundation of European international provided by the reception of the Historical School in the mid-19th century.
Download the article from SSRN at the link.

September 15, 2022

Junde on Protection of Traditional Art Forms under Geographical Indications Law: A Case Study of Madhubani and Sujini Art Forms of Bihar India @JIPLP

Akanksha Jumde, University of Tasmania Faculty of Law, is publishing Protection of Traditional Art Forms under Geographical Indications Law: A Case Study of Madhubani and Sujini Art Forms of Bihar, India in the Journal of Intellectual Property & Practice (2022). Here is the abstract.
Using case studies of two of the oldest art forms practiced in Bihar, India, this article analyses challenges relating to the implementation of the law on Geographical Indications (GIs) in India, to better protect the rights and the craft of its most important stakeholders: the artists. This article is also a critique on the application of the current Indian GI regulatory framework to its traditional handicraft sectors. The findings derived with reference to handicrafts are also relevant to the broader question of whether GIs can protect the traditional knowledge or indigenous knowledge of the stakeholders. This article finds that lack of provisions related to quality control and monitoring mechanisms, discrepancies in the definition of ‘Goods’ and ‘GI’, the anomalous concept of authorized users and difficulties in the application for registration requirements, impose serious limitations. We, therefore, suggest that the extant regulatory framework needs to be strengthened by adequate support by the government to help artists to promote and market their work, and establishment of adequate regulations for quality control, post-GI registration.
Download the article from SSRN at the link.

September 11, 2022

Wolcher on Ronald Dworkin's Wittgenstein @routledgebooks

Louis E. Wolcher, University of Washington School of Law, is publishing Ronald Dworkin's Wittgenstein in Wittgenstein and Other Philosophers (A. Khani & G. Kemp, eds., Routledge) (forthcoming). Here is the abstract.
Wittgenstein’s influence on the legal theory of the late Ronald Dworkin (1931-2013) is an excellent illustration of the truth of the former’s statement, “The seed I’m most likely to sow is a certain jargon.” Dworkin, one of the most prolific and important legal philosophers of his era, developed a distinctly normative theory that links the rule of law, legal rights, and legal interpretation to the claimed objective unity of legal, moral, and political values, especially in the United States. In doing so he relied directly for support on the authority of Wittgenstein’s concepts “language-games” and “form of life,” and indirectly on the latter’s anti-metaphysical insight (in Dworkin’s words) that “the key to meaning is use.” This chapter discusses both the few points of contact and the large areas of divergence between the methods and goals of these two thinkers. It does so from two opposite yet complimentary perspectives, which it calls “Dworkin’s Wittgenstein” and “Wittgenstein’s Dworkin.” It concludes that Wittgenstein would not have recognized Dworkin’s writings as philosophy but would (perhaps) have respected them as expressions of a secular kind of religious faith – a Religion Without God as the title of Dworkin’s last book would have it.
Download the essay from SSRN at the link.

Soifer on Remembrance, Group Gripes, and Legal Frictions: Rule of Law or Awful Lore? @UHMLawSchool @TouroLawReview

Aviam Soifer, University of Hawaii, Manoa, School of Law, is publishing Remembrance, Group Gripes, and Legal Frictions: Rule of Law or Awful Lore? in volume 37 of the Touro Law Review. Here is the abstract.
The rise of groups that honor and seek to advance their particular imagined or real pasts has seemed increasingly dangerous in the years since Bob Cover’s death in 1986. This essay briefly examines the challenges such groups pose to Bob’s hope, and even his faith, that law and legal procedure could be bridges to more just worlds. It may not be ours to finish consideration of how to distinguish the Rule of Law from Awful Lore—both composed of exactly the same letters— but we should continue that task, with remembrance, even within our troubled world.
Download the article from SSRN at the link.

September 10, 2022

Tay on The Stories We Tell Ourselves: National Memories and Historical Narratives in International Legal Claims

Xuan W. Tay, University of Adelaide, has published The Stories We Tell Ourselves: National Memories and Historical Narratives in International Legal Claims. Here is the abstract.
“The universe is made of stories, not of atoms.” The social sciences recognize that States are motivated by their historical narratives. Narratives play a key role in shaping how States understand their world and their place in it. Scholars of nationalism crisply note, “no memory, no identity; no identity, no nation”. The emerging international relations tagline, Ontological Security Theory, asserts that the conduct of States is also motivated by their self-identity needs. Even so, there are unsettled questions about the motivational strength of historical narratives, the processes by which narratives gain salience, and how narratives are crafted. Contrastingly, the role historical narratives play in motivating international legal behavior is not well-studied in the international law (IL) scholarship. Most scholars employ rationalist assumptions to explain the international legal behavior of States. Whereas other scholars turn to constructivist explanations, the literature here predominantly focuses on how legal norms affect the general conduct of States, not how historical narratives motivate international legal behavior. This is peculiar, given that the practice of international law typically calls on lawyers to navigate the subjective historical narratives States perpetuate. The proposed thesis seeks to contribute to both the social science and IL scholarship by pursuing a comprehensive understanding of how a State’s historical narratives motivate the international legal claims it makes. This is done through a three-stage interdisciplinary inquiry. It first draws on social science insights to conjecture a theoretical model of how a State’s historical narratives may motivate a State’s international legal claims. Secondly, this model is tested against an empirical legal examination of China’s international legal claims from the period of the Unequal Treaties to present day. The hypothesis to be addressed here is whether the theoretical model provides an intelligible basis for explaining how and why China makes the international legal claims it does. The third stage takes into account the empirical findings to modify the conjectured theoretical model, and suggest implications therefrom for both the social science and IL scholarship. At a broader level, it is hoped the inquiry will spur readers to reflexively consider the degree to which the practice of international law is informed by the stories we tell ourselves.
Download the proposal from SSRN at the link.

September 3, 2022

Katz, Rozema, and Sanga on Women in U. S. Law Schools, 1948-2021 @elizabethdkatz @kyle_rozema @WashULaw @sarathsanga @NorthwesternLaw

Elizabeth D. Katz and Kyle Rozema, both of Washington University, St. Louis, School of Law, and Sarath Sanga, Northwestern University School of Law, have published Women in U.S. Law Schools, 1948-2021. Here is the abstract.
We study the progress of women’s representation and achievement in law schools. To do this, we assemble a new dataset on the number of women and men students, faculty, and deans at all ABA-approved U.S. law schools from 1948 to the present. These data enable us to study many unexplored features of women’s progress in law schools for the first time, including the process by which women initially gained access to each law school, the variance in women’s experiences across law schools, the relationship between women’s representation and student achievement, and the extent to which women occupy lower status faculty and deanship positions. We contextualize our findings by situating them within the vast qualitative literature on women’s experiences in law schools and the legal profession.
Download the article from SSRN at the link.

Keith on Richard Cockburn Maclaurin: 1870-1920 @WellingtonUni

Kenneth J. Keith, Victoria University of Wellington, Te Herenga Waka Faculty of Law, has published Richard Cockburn Maclaurin: 1870–1920 in Vincent O'Sullivan (ed) Eminent Victorians (Stout Research Centre, Wellington, 2000) at 49. Here is the abstract.
A lecture delivered as part of the Stout Research Centre's Eminent Victorians series. The series celebrates the contribution of a number of Victoria University of Wellington's distinguished scholars and gifted teachers of the past hundred years. In this lecture, Sir Ken Keith provides an insight into the work and legacy of Richard Cockburn Maclaurin, Victoria's first Dean of Law, first chairman of the Professorial Board, first Professor of Mathematics, and first and only Professor of Astronomy.
Download the essay from SSRN at the link.

September 1, 2022

Lloyd on Recasting Canons of Interpretation and Construction into "Canonical" Queries @LloydEsq @WFULawSchool @WFULawReview

Harold Anthony Lloyd, Wake Forest School of Law, is publishing Recasting Canons of Interpretation and Construction into 'Canonical' Queries in the Wake Forest Law Review. Here is the abstract.
This Article advocates recasting the canons of construction into neutral queries rather than presumptions or directives of meaning. Such an approach would not only rectify problems with the canons discussed in this Article. It would also provide lawyers with highly useful "checklists" of semantic questions lawyers might otherwise overlook when interpreting and construing meaning in contexts of both private law (e.g., contracts) and public law (e.g., constitutional provisions and statutes). As a part of such advocacy, this Article explores in detail the following "canonical" queries and sub-queries (and the canons of construction they replace where applicable): the applicable text query, the plain meaning query, the ambiguity sub-query, the vagueness sub-query, the indeterminacy sub-query, the ordinary meaning query, the technical and term of art query, the grammar query, the punctuation query, the further meaning query, and the irony/non-literal meaning query. This Article also includes a detailed Appendix outlining further needed queries to be addressed in future articles. These include the ejusdem generis query, the noscitur a sociis query, the expressio unius query, the antecedent/subsequent query (rejecting the rule of the last antecedent), the anaphora query, the whole text query, the surplusage query, the absurdity query, the exercise of power query (rejecting general construction against the drafter), and queries of meaning through time. Additionally, to help direct proper application of the queries, this Article also explores the distinction between interpretation and construction.
Download the article from SSRN at the link.

August 31, 2022

Chatman on Teaching Slavery in Commercial Law @carlissc @wlulaw

Carliss Chatman, Washington and Lee School of Law, has published Teaching Slavery in Commercial Law. Here is the abstract.
Public status shapes private ordering. Personhood status, conferred or acknowledged by the state, determines whether one is a party to or the object of a contract. For much of our nation’s history the law deemed all persons of African descent to have a limited status, if given personhood at all. The property and partial personhood status of African-Americans combined with standards developed to facilitate the growth of the international commodities market for products, including cotton. The impact of that shift in status persists today. The commodities markets and the nations that arose and prospered would not be possible without the slave trade, and that trade would not be possible without the legal, business, and social norms in place to facilitate private ordering and growth while reinforcing the subjugation of African-Americans. Yet, many business and commercial law professors devote class time to teaching foundational and historical material, without any consideration of the impact of slavery. To avoid slavery in business and commercial law courses is to ignore an institution that played a pivotal role in much of what we do today. Slavery is not a frolic, it is foundational. Many American universities played a role in the slave trade—either receiving funds from the enterprise or receiving the enslaved as donations and using their labor or disposing of them for the financial advancement of the institution. In my Core Commercial Concepts course, a Uniform Commercial Code (UCC) survey class covering Articles 2, 3, 4, and 9, I devote time and space to discussions of race and the law by making the connection between the history of commercial concepts, slavery, and the role of the cotton industry in the shaping of international commercial law norms. In my simulation, described in this essay, I teach the story of Washington and Lee University’s sale of individuals for the purpose of ensuring the institution’s financial survival, then extrapolate from the facts to review the high points of commercial law. I incorporate materials on the legacy of slavery at my own institution to provide students with a scenario based on the acquisition of real property and construction of buildings they engage with on campus. In this essay I explain the methods I use to explore these concepts. Working in a framework that focuses on classification and status, my students consider issues of federalism and the impact of statutory definitions on private ordering, while discussing how these definitions shape the relationship of African-Americans to commerce.
Download the article from SSRN at the link.

Law and Humanities Workshop: Futurity Now? September 6-8, 2022

 From Professor Steven Howe, University of Lucerne:


Law and Humanities Workshop: Futurity Now?

6-8 September 2022

Online via Zoom

Convened by the Institute for Interdisciplinary Legal Studies, University of Lucerne & the Centre for Law, Arts and the Humanities, The Australian National University

 

It is not so long ago that Mark Fisher, in Ghosts of My Life (2013), pronounced the “slow cancellation of the future.” Riffing on a phrase of Franco ‘Bifo’ Berardi, Fisher identifies a cultural inertia that resides in a collective inability to “grasp and articulate the present.” The ubiquity of capitalism – and of a capitalist realism that presumes there is no alternative to the neoliberal global order – has, Fisher argues, given rise to a condition in which “life continues, but time has stopped.” The “slow cancellation of the future” thus becomes, in Fisher’s hands, a critical expression of this insidious creep that gradually but relentlessly corrodes the social imagination – and with it, the radical potential of the future. As Wendy Brown describes it, this loss of futurity and of forward momentum “makes the weight of the present very heavy: all mass, no velocity.” Or “in the terms of late modern speediness … all speed, no direction.”

 

Is, then, the future over? Not quite. Indeed, there is no greater critical concern in the contemporary moment than the future, and recent years have seen a marked resurgence of thinking about futurity. Fired by the urgency of our current condition, writers, theorists, artists and activists have turned anew to consider the possibilities of the future, both as a subject of theorization and as an orientation for practice in the world.

 

Against this background, the law and humanities workshop proposes a multi- and interdisciplinary discussion around the topic of “Futurity Now?” A joint venture of a global network of partner institutions, the workshop will offer a creative and stimulating space for exploring critical and theoretical perspectives on the future “as time, as event, as condition, as an orientation to the oncoming” (Saint-Amour).

 

The workshop programme will comprise the following three sessions (all online):

 

 

Please follow the links for workshop descriptions and registration details.

 

All enquiries to lucernaiuris@unilu.ch.

August 30, 2022

Katz on The Strange Case of Dr. Jekyll and Mr. Hyde, his English Wills and Scottish Law

Leslie Katz has published Strange Case of Dr Jekyll, his English Wills and Scottish Law. Here is the abstract.
In Robert Louis Stevenson’s Strange Case of Dr Jekyll and Mr Hyde, much of the action of the story is driven by the belief of Mr Utterson the lawyer that a will made by Jekyll leaving everything to Hyde was a valid will. That belief was caused in turn by Stevenson’s belief that, on a certain point, English and Scottish wills law were the same. Stevenson was mistaken; they weren’t. Although the will would have been valid under Scottish law, it wasn’t under English law. Much of Utterson’s conduct in the story is thus seen to have been unnecessary. The paper also includes background information about Mr Utterson, Dr Lanyon and Dr Jekyll, as well as a chronology of events in the story.
Download the paper from SSRN at the link.

August 27, 2022

Brady on Uses of Convention History in State Constitutional Law @mollyxbrady @WisLRev

Maureen E. Brady, Harvard Law School, is publishing Uses of Convention History in State Constitutional Law in the Wisconsin Law Review. Here is the abstract.
For decades now, scholars have been interested in the reliability of historical evidence surrounding the drafting of the federal Constitution. The intrigues surrounding the publication of records of the federal constitutional convention—the Philadelphia Convention, held in 1787—are nearly worthy of their own Netflix special (though maybe not quite another installation of the National Treasure franchise). As compared with the amount of material available to federal constitutional law scholars and interpreters, the quantity of historical material pertaining to state constitutions is vast. And yet, no comparable literature exists to assess the reliability of those records. This leaves a question: if scholars have criticized courts’ reliance on shaky historical evidence to interpret the federal Constitution, to what extent might the same sorts of concerns plague the records in the states? For decades now, scholars have been interested in the reliability of historical evidence surrounding the drafting of the federal Constitution. The intrigues surrounding the publication of records of the federal constitutional convention—the Philadelphia Convention, held in 1787—are nearly worthy of their own Netflix special (though maybe not quite another installation of the National Treasure franchise). As compared with the amount of material available to federal constitutional law scholars and interpreters, the quantity of historical material pertaining to state constitutions is vast. And yet, no comparable literature exists to assess the reliability of those rec Now is an opportune time to consider the production and use of the historical evidence surrounding state constitutions for at least three reasons. First, while much scholarly interest in uses of historical material focuses on originalism as deployed in the Supreme Court, more recent work is starting to engage originalism and uses of history in state and lower federal forums. Second, the Supreme Court’s turn in recent federal constitutional decisions toward “history” and “tradition” may mean more lawyers turn to state constitutions and associated records for evidence of historical understandings of rights and their limits. And lastly, recent progressive losses in the Supreme Court seem likely to reinvigorate interest in pursuing state constitutional causes of action to protect rights not recognized at the federal level, a move that may likewise trigger renewed interest in state constitutional sources. This Essay begins to examine the records that surrounded the creation of state constitutions, considering their reliability as sources, their emergence as interpretive aids, and their widespread use by judges. It focuses in particular on material from state constitutional conventions: the published journals, debates, and proceedings that purport to chronicle the day-to-day activities of a state constitution’s drafters. Although hardly the most frequent way that state constitutions are changed, state convention evidence can be helpfully viewed through the critical lens that has already been applied to records of the federal Constitutional Convention. In this brief work, I will illustrate some of the problems and possibilities that this material can pose for interpreters of state constitutions, informed by the critiques that scholars have made of convention evidence in the federal context. Part I begins by examining the extent to which the evidentiary weaknesses identified by federal constitutional scholars apply to material produced in conjunction with state constitutional conventions. Part II traces the history of state-court reliance on convention evidence, examining its emergence as an interpretive aid in the first half of the nineteenth century and its acceptance in an increasing number of judicial decisions. Given the frequency with which courts turn to convention evidence, Part III identifies some puzzles and directions for further research on the uses of historical material to shed light on the meaning of state constitutional provisions.
Download the essay from SSRN at the link.

August 25, 2022

Frohock on Reading Lolita as a Sentencing Memorandum @frohock_c @AlbanyLawReview @MiamiLawSchool @umlawschool

Christina Frohock, University of Miami School of Law, is publishing Legal Fiction: Reading Lolita as a Sentencing Memorandum in volume 86 of the Albany Law Review. Here is the abstract.
The idea of a legal narrative often focuses on identifying a narrative within the law, for example, the persuasive power of storytelling in a trial court motion or an appellate brief. The story emerges from the law. This Article proposes inverting that focus so that we identify the law within a narrative. Using the example of Vladimir Nabokov’s classic novel Lolita, the Article explains how we can read the novel as a prolonged sentencing memorandum. That memorandum casts the infamous first-person narrator, recounting his crimes under the pseudonym of Humbert Humbert, as a defendant writing pro se. In Lolita, the law emerges from the story, showing that an entire legal document may be redrawn as a narrative. The legal document and the narrative are one, with a distinct point of view in favor of the criminal defendant. This unity between law and narrative illuminates a deep, essential goal shared by both genres: garnering sympathy. The notion of law without sympathy thus rings hollow. Finally, this essential link between law and sympathy shines a new light on the law’s role to promote justice. Justice must be measured at least partly as an expression of sympathy rather than solely as a cold calculation of costs and benefits.
Download the article from SSRN at the link.

August 24, 2022

Davies on A Great Borrower and a Great Originator, and Also, Perhaps, a Great Lender @horacefuller @NeroWolfePack

Ross E. Davies, George Mason University Law School; The Green Bag, has published A Great Borrower and a Great Originator, and  Also, Perhaps, a Great Lender, at The Gazette–The Journal of the Wolfe Pack, Fall 2021, at 3. Here is the abstract.
This is the full, annotated, original version of a paper that was delivered as a toast to Rex Stout at the The Wolfe Pack's Black Orchid Dinner (on Zoom) on December 5, 2020. The abbreviated toasty version was published (without footnotes), on pages 3 to 5 of the Fall 2021 issue of The Gazette — The Journal of the Wolfe Pack. The paper argues that contrary to conventional wisdom, Rex Stout did NOT borrow from Agatha Christie when he wrote his first Nero Wolfe detective story; rather, it was more likely Christie who borrowed from Stout.
Download the article from SSRN at the link.

August 22, 2022

Stevenson on Revisiting the Original Congressional Debates about the Second Amendment @STCL_Houston

Drury D. Stevenson, South Texas College of Law, Houston, has published Revisiting the Original Congressional Debates about the Second Amendment. Here is the abstract.
Many scholars and courts have written about the historical background of the Second Amendment, either to emphasize its connection to state-level citizen militias or to argue that the Amendment protects an individual right to own and carry guns for self-defense. While many authors have mentioned the original Congressional debates about the Second Amendment, the literature is missing a thorough, point-by-point analysis of those debates, situating each statement in Congress within the context of the speaker’s background and political stances on issues overlapping with the right to keep and bear arms. This Article attempts to fill this gap by providing a methodical discussion of each comment or argument made in Congress when the Second Amendment was under consideration. This discussion addresses how each of the Congressmen’s comments connect to public statements made by the same members of Congress in the months that followed on related topics: taxation and public debt related to militias, the supply of available firearms and their legal status as private or public property, the institution of slavery, westward expansion, and especially the complications for each of these issues posed by the Quakers, who became the center of attention during the debates about the Second Amendment. These original Congressional debates have taken on more importance following the Supreme Court’s recent holding that courts should decide Second Amendment challenges based historical evidence from the years immediately preceding and following ratification. While this Article does not take a position on current litigation over modern firearm regulations, the discussion here can offer courts and commentators new insights into the original public meaning of the Second Amendment.
Download the article from SSRN at the link.

August 19, 2022

John Witte on Back to the Sources? What's Clear and Not So Clear about the Original Intent of the First Amendment @EmoryLaw

John Witte, Emory University School of Law, has published Back to the Sources? What’s Clear and Not So Clear About the Original Intent of the First Amendment at 47 BYU L. Rev. 1303 (2022). Here is the abstract.
This Article peels through the layers of America's founding documents before exploring the final sixteen words of the First Amendment religion clauses. Part I explores the founding generation’s main teachings on religious freedom, identifying the major principles that they held in common. Part II sets out a few representative state constitutional provisions on religious freedom created from 1776 to 1784. Part III reviews briefly the actions by the Continental Congress on religion and religious freedom issued between 1774 and 1789. Part IV touches on the deprecated place of religious freedom in the drafting of the 1787 United States Constitution. Part V reviews the state ratification debates about the 1787 Constitution and introduces the religious freedom amendments that they proposed to the First Congress tasked with drafting new federal rights language. Part VI combs through all the surviving records of the First Congress’ drafts and debates on what became the First Amendment. Part VII parses the final sixteen words of the religion clauses and sifts through what’s clear and not so clear about the final words: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” The Conclusion distills my main findings about the original understanding of the First Amendment and their implications for originalists today.
Download the article from SSRN at the link.

August 16, 2022

Bernick on Fourteenth Amendment Confrontation @evanbernick @NIU_Law

Evan D. Bernick, Northern Illinois University College of Law, has published Fourteenth Amendment Confrontation. Here is the abstract.
Crawford v. Washington was initially hailed as a triumph—a much-needed reinvigoration of the Sixth Amendment right of criminal defendants “to be confronted with the witnesses against [them].” It has few supporters today, and criticisms of it have taken on heightened importance in the wake of constitutional decisions involving the “incorporation” of the Bill of Rights against the states. In NYSRPA v. Bruen the Supreme Court flagged an “ongoing scholarly debate” about whether incorporated rights should be applied as they were understood in 1791—when the Bill of Rights was ratified—or in 1868—when the Fourteenth Amendment incorporated them. Bruen thus broadened the scope of historical inquiry into a diminished precedent. This is the first Article to explore the meaning of the right to confront witnesses during the antebellum struggle against slavery. It demonstrates that confrontation rights would emerge broader and stronger from an inquiry into their meaning in 1868. Crawford held that only “testimonial” out-of-court statements that were intended to aid the prosecution were originally understood to require an opportunity for face-to-face cross-examination of a witness. But this was not true in 1791, much less in 1868. By the time the Fourteenth Amendment was ratified, the general rule was that no out-of-court statements could be used by the prosecution to prove a defendant’s guilt absent an opportunity for prior cross-examination; and there was only one, narrow exception for dying declarations by homicide victims. Confrontation’s evolution is evinced, not only in commentaries and judicial decisions but in public arguments raised by abolitionists against the Fugitive Slave Act of 1850. Recovering this history is essential, not only to capturing confrontation’s original meaning but to realizing confrontation’s original goals today. These goals are not limited to the discovery of truth. They include protection of the dignity and liberty of even the unquestionably guilty; the provision of a fair chance to all defendants to resist punishment; and democratic contestation of the content and enforcement of criminal law. Most fundamentally, confrontation is about shifting power. Recovering this understanding would enable those most directly impacted by the U.S. criminal punishment system to resist and transform it.
Download the article from SSRN at the link.

August 14, 2022

McMahon on The Origins of Modern International Law: A Vocabulary for Justifying White Supremacist Colonialism

Thomas McMahon has published The Origins of Modern International Law: A Vocabulary for Justifying White Supremacist Colonialism. Here is the abstract.
What is "modern" international law? This paper reviews the history of the development of modern international law, usually intended to mean the break between the leadership of role of the Roman Catholic popes into an international law decided by states without reference to the popes. In other words, papal bulls of discovery, enslavement and other topics stopped having influence. "Modern" international law was especially important to ensure that countries such as England, France, the Netherlands, Belgium, Germany and Italy could compete to steal the lands and resources of the rest of the world for themselves. In other words, modern international law was invented to give a legal vocabulary and justification for white supremacist colonialism without ever using the words "white supremacy."
Download the paper from SSRN at the link.

Epstein and Gulati on A Century of Business in the Supreme Court, 1920-2020 @USCGouldLaw @UVALaw

Lee Epstein, University of Southern California, and Mitu Gulati, University of Virginia School of Law, have published A Century of Business in the Supreme Court, 1920-2020 as Virginia Public Law and Legal Theory Research Paper No. 2022-55 and Virginia Law and Economics Research Paper No. 2022-16. Here is the abstract.
A decade and a half into its life, we ask: How pro business is the Roberts Court? Using a simple objective measure – how often does business win in the Court when it is fighting a non business – we find that the Roberts Court may be the most pro business Court in a century. The win rate for business in the Roberts Court, 63.4%, is 15 percentage points higher than the next highest rate of business wins over the past century (the Rehnquist Court, at 48.3%). The question is why? It is tempting to conclude that this pro business result is purely a function of there being a Republican majority of justices on the Roberts Court. The data suggest that the story is more complex. Additional features that emerge from the data are: (a) It is not just the Republicans on the Roberts Court who are more pro business than in prior Courts, but the Democrats as well; (b) The Government, through the SG’s office and across both Democratic and Republican administrations, has been much more supportive of business positions than in prior eras; (c) An elite Supreme Court bar has emerged in recent years and businesses have hired them disproportionately so as to better influence the Court.
Download the article from SSRN at the link.

August 12, 2022

Wright on the Logic of History and Tradition in Constitutional Rights Cases @IUMcKinney

R. George Wright, Indiana University School of Law, has published On the Logic of History and Tradition in Constitutional Rights Cases. Here is the abstract.
Questions of judicial reliance on history and tradition have been prompted by several recent Supreme Court cases, in which the Court has not merely emphasized, but absolutized, history and tradition. Absolutism in this sense refers to judicial language evidently requiring the relevant party to show, in every case, sufficient validation for their position in history and tradition. The requirement for such a showing of historical and traditional support is thus apparently exceptionless, and in that sense absolute. It is on this absolute, or exceptionless, requirement of sufficient support for a party’s claim, specifically in history and tradition, that this Article focuses. Immediately below, the Article examines the role of history and tradition in the Court’s most recent case law, successively addressing the law of substantive due process rights; the law of gun ownership and related rights-claims under the Second Amendment; the scope, limits, and requirements of the Establishment Clause; and some important dimensions of free speech rights. The Article then addresses broader issues of the proper role and limits of attempts to absolutize requirements of history and tradition in the context of rights-claims, including claims for rights that are themselves thought to be absolute and exceptionless.
Download the article from SSRN at the link.

August 11, 2022

Ryan on An Historical and Empirical Analysis of the Cy-Pres Doctrine

C. J. Ryan, University of Louisville School of Law; American Bar Foundation, is publishing An Historical and Empirical Analysis of the Cy-Près Doctrine in volume 48 of the ACTEC Law Journal. Here is the abstract.
Cy près is a pivotal doctrine in estate law and indeed American jurisprudence. It places courts in the shoes of settlors of charitable trusts to discern not only their original intent but also affords the possibility of continuing the material purpose for which settlors created enduring legacies of philanthropy benefitting society. For this reason, it may well be that no other legal doctrine is as closely tied to the interests of the individual and the collective as cy près. And my first-of-its kind study puts the cy-près doctrine front and center, while providing three major contributions to the field. First, through deliberative historical analysis, I offer an in-depth look at the types of cases American courts have heard involving the use of cy près. This historical categorization and explication is itself unique and provides significant insight into the controversies that allowed the doctrine to evolve. Second, the application of empirical methods to examine the doctrine is groundbreaking. By holistically examining the data I collected, I have been able to discern three major themes. The passage of time yields a gradual but greater adoption of the use of the cy-près doctrine. The presence of reversionary, gift-over, or private interests renders the use of the cy-près doctrine less practicable. And finally, courts are overwhelmingly more likely to apply cy près in cases involving public charitable trusts, educational purpose trusts, and medical purpose trusts, even when controlling for other independent variables and typologies of charitable trusts. Last, fifty-state surveys are commonplace; yet, none exists for the doctrine of cy près. I was able to assemble such a survey that not only assisted me in conducting this research but will undoubtedly aid other researchers for years to come, which I have addended to this Article in the Appendix.
Download the article from SSRN at the link.

Guerra-Pujol on Coase and the Corleones

F. E. Guerra-Pujol, Pontifical Catholic University of Puerto Rico, is publishing Coase and the Corleones in The Godfather and Philosophy: We’re Gonna Make‘em an Argument They Can’t Refute (Joshua Heter and Richard Greene, eds., Open Court, 2023). Here is the abstract.
My contribution to the new volume on The Godfather and Philosophy will explore the problem of reciprocal harms in the context of the famous wedding scene in the original Godfather movie. By way of background, one of the most influential ideas in legal, moral, and political philosophy is the harm principle or the notion that people should be free to do or say whatever they wish unless their actions or words cause harm to somebody else. The Godfather, however, shows us why the harm principle is logically incoherent. Aside from the difficulty of defining what counts as a harm, the main problem with the harm principle is that harms are often reciprocal in nature, a counterintuitive idea that can be traced back to the work of Ronald Coase. That is, most harms are, logically speaking, either the direct or indirect result of both the wrongdoer’s and the victim’s decisions. (This short paper is part of a larger series of works that I have written over the years using examples from popular culture to illustrate the problem of reciprocal harms.)
Download the essay from SSRN at the link.

August 7, 2022

Solum and Crema on The Original Meaning of "Due Process of Law" in the Fifth Amendment @lsolum @VirginiaLawRev @_rundnc

Lawrence B. Solum, University of Virginia School of Law, and Max Crema have published The Original Meaning of “Due Process of Law” in the Fifth Amendment at 108 Va. L. Rev. 447 (2022). Here is the abstract.
The modern understanding of the Fifth Amendment Due Process of Law Clause is dramatically different from the original meaning of the constitutional text. The Supreme Court has embraced both substantive due process—a jurisprudence of unenumerated rights—and procedural due process—a grab bag of doctrines that touch upon almost every aspect of administrative and judicial procedures. We demonstrate that the original meaning of the Clause is much narrower. In 1791, “due process of law” had a narrow and technical meaning: the original sense of the word “process” was close to the modern sense that the word has when used in the phrase “service of process,” and it did not extend to all legal procedures, much less to all laws that impact liberty or privacy. In the late eighteenth century, “due process of law” was distinguished from two other important phrases. The phrase “due course of law” referred broadly to all aspects of a legal proceeding, including trials, appeals, and other matters. The phrase “law of the land” extended to all of what we would now call the positive law of a particular state or nation. Once these three ideas are properly distinguished and the relevant history is examined, the evidence for the narrow understanding (what we call the “Process Theory”) is overwhelming. As a consequence, almost all modern Fifth Amendment Due Process of Law Clause cases are either wrongly decided or wrongly reasoned from an originalist perspective.
Download the article from SSRN at the link.

August 6, 2022

Forthcoming: Stefanie Meuller, The Corporation in the Nineteenth-Century American Imagination (Edinburgh University Press, 2022) @EdinburghUP

Forthcoming: Stefanie Meuller, The Corporation in the Nineteenth-Century American Imagination (Edinburgh University Press, 2022). Here from the publisher's website is a description of the book's contents.
The first study of the representation of corporations in US law, literature, and culture Covers key topics in company law including the emergence of corporate personhood, the regulation of monopolies, the piercing of the corporate veil, agent-principal relationships and examines their literary and cultural manifestations Presents interdisciplinary readings of legal, literary and visual texts, including legal treatises, caricatures, novels, and magazine publications Draws on literary texts including Maria Amparo Ruiz de Burton’s The Squatter and the Don, James Fenimore Cooper’s The Bravo, Frank Norris’ The Octopus and Charles W. Chesnutt’s The Partners Draws on cases including Charles River Bridge v. Warren Bridge (1837), Munn v. The State of Illinois (1877) and Santa Clara County v. Southern Pacific Railroad (1886) This book examines the way the corporation – a legal concept of enduring and timely importance in the Anglo-American legal tradition – was imagined in the nineteenth century historical imagination. Stefanie Mueller traces the ways in which literary and cultural representations of the corporation in nineteenth-century America helped shift how the corporation was envisioned; from a public tool meant to serve the common good, to an instrument of private enterprise. She explores how artists and writers together with lawyers and economists represented this transformation through narrative and metaphor. Drawing on a range of legal, literary and visual texts, she shows how the corporation’s public origins as well as its fundamentally collective nature continued to be relevant much longer than previous scholarship has argued.

Jiménez on Private Law Legalism @fjimenez_c @USCGouldLaw

Felipe Jiménez, USC Gould School of Law, is publishing Private Law Legalism in volume 73 of the University of Toronto Law Journal (2023). Here is the abstract.
Judges decide multiple types of disputes, including disputes involving the property or contractual rights of two private parties (their “private rights”). The nature of these private rights has long been the focus of philosophical debates between conventionalists, non-conventionalists, and Kantians. In this paper, I offer an argument in favor of the adoption of a legalist concept of private rights by judges and lawyers involved in private law disputes. According to private law legalism, judges and lawyers should see these rights as purely legal rights that do not reflect any pre-existing moral entitlements but are simply the upshots of positive law. The reason for adopting this legalist view is that it contributes to the rationality, predictability, and stability of legal reasoning, as well as to an appropriate evaluative stance towards positive law. Thus understood, the argument for legalism is not an argument about the nature of private rights, but about the conception of such rights that participants in private law reasoning ought to adopt.
Download the article from SSRN at the link.

August 5, 2022

ICYMI: Ian Ward, The Play of Law in Modern British Theatre (Edinburgh University Press, 2021) @EdinburghUP @UniofNewcastle

ICYMI: Ian Ward, Newcastle University, has published The Play of Law in Modern British Theatre (Edinburgh University Press, 2021). Here from the publisher's website is a description of the book's contents.
The first book to investigate the place of law in modern and contemporary drama Illustrates the role of contemporary theatre in articulating legal and political issues to a modern audience Analyses a range of different genres in contemporary drama, including historical, poetic, realist, documentary and ‘in-yer-face’ Each chapter focuses on a particular area of law alongside the work of a particular contemporary playwright Shows how modern playwrights engage with issues such as pornography, murder, terrorism, the function of Parliament, and the role of the monarchy Theatre, according to the prominent British playwright David Hare, is our most effective ‘court of justice’. This book assesses the credibility of this arresting claim in the immediate context of contemporary British theatre by investigating the place and purpose of law in a range of modern dramatic settings and writings. Each chapter focuses on a particular area of law and the work of a particular contemporary playwright, and in doing so illustrates the important role of contemporary theatre in articulating legal and political issues to a modern audience. Exploring a range of different genres in contemporary drama, including the historical, the poetic, realist, documentary and ‘in-yer-face’, this volume explores the capacity of modern playwrights to engage with issues such as pornography, murder, the contemporary experience of terrorism, the function of Parliament and the role of the monarchy.

August 4, 2022

Cohen on Journeys Through Space and Time While Reading International Law and the Politics of History, Found on a Palimpsest, Translated For You, the Reader @UGASchoolofLaw @harlangcohen

Harlan Grant Cohen, University of Georgia School of Law, has published Journeys Through Space and Time While Reading International Law and the Politics of History, Found on a Palimpsest, Translated for You, the Reader as University of Georgia School of Law Legal Studies Research Paper No. 2022-06. Here is the abstract.
I was invited to a symposium on Anne Orford’s book, International Law and the Politics of History. On my way there, my mind wandered, and I found myself lost in a forest of half-remembered stories and unfinished thoughts. Searching for a way out, this is what I discovered.
Download the essay from SSRN at the link.

Metallic on Six Examples Applying the Meta-Principle Linguistic Method: Lessons for Indigenous Law Implementation @NaiomiMetallic @SchulichLaw @unblawjournal

Naiomi Metallic, Dalhousie University School of Law, is publishing Six Examples Applying the Meta-Principle Linguistic Method: Lessons for Indigenous Law Implementation in the University of New Brunswick Law Journal. Here is the abstract.
Building on “Five Linguistic Methods for Revitalizing Indigenous Laws,” this article explains and analyses six examples of implementation of the ‘meta-principle’ or ‘word-bundle’ linguistic method for Indigenous law revitalization. The method refers to using a word in an Indigenous language that conveys an overarching, normative principle of the Indigenous group, and is the most utilized form of the five linguistic methods to date. The examples span its use by judges, public governments as well as Indigenous governments, and these actors employ different methods for identifying and interpreting the meta-principles. The variations between them reveal four categories of approaches to identifying, interpreting and implementing meta-principles: (1) inherent knowledge of decision-maker; (2) in-court evidence; (3) official ratification; and (4) advisory bodies. There are different benefits and challenges associated with each category, and there are several lessons we can take from studying them. These examples and the categories show us that communities and their governments have real options, and precedents, to not only begin to revive their laws, but also to put them into practice.
Download the article from SSRN at the link.

July 31, 2022

Rabb on Metacanons: Comparative Textualism @intisarrabb @Harvard_Law

Intisar A. Rabb, Harvard Law School, has published Metacanons: Comparative Textualism as Harvard Public Law Working Paper No. 22-24. Here is the abstract.
This Paper uncovers a striking feature of statutory interpretation that joins the rise of “new new new” textualism on today’s Supreme Court and elsewhere. It reveals the increasing sway of the now infamous canons of construction across two very different legal systems: American law and Islamic law. These two systems of law share many of the same legal canons despite the radically different institutional structures, origins, and commitments of each system historically and today. They are perhaps maximally different. Probing each system individually then juxtaposing the two reveals shared, ‘meta’ features of legal canons between them. To be sure, such comparison may seem improbable, difficult, or meaningless at first blush. But after overcoming hurdles of the improbable, it becomes clear that the existence, continued use, and recent resurgence of legal canons in both systems suggest that the common features of their shared canons—metacanons—play out in almost every interpretation. This Article explores the nexus between the two. The idea of metacanons, beyond showing the value of comparison, helps delineate how and why the current U.S. Supreme Court must choose between using legal canons to bolster rule-of-law coherence or to mediate democratic values. My basic argument is twofold. First, I argue that courts demonstrably have abandoned the notion of court-congress dialogue in applications of legal canons today in ways that resonate closely with the differing structures of Islamic law Muslim jurists in older systems of Islamic law had initially adopted a similar notion but recognized as fictive long ago. Second, I argue that the facts of similar legal canons in disparate legal systems, both lacking in institutional dialogue, meaningfully informs the raging debates about both the means and the ends of statutory interpretation. These facts call for resolution and new approaches to the judicial use of legal canons, with an eye on metacanonical inquiries. In the end, I argue that our era of declining (or fictitious) institutional dialogue between Courts and Congress mean that legal canons in today’s Supreme Court are once again interpretive tools solely for judicial interpreters, who now face a choice. Judges who have dispensed with the myth of dialogue should seek more coherent use of canons to bolster rule-of-law values. Identifying the universal features of metacanons can aid that path. Or, judges should re-open the channels of dialogue and deploy the canons to mediate the ongoing cases and controversies about changing values in light of constitutional norms and congressional preferences. This is a path that Islamic law judges did not (and could not) pursue. But thrown into relief by metacanons, this path offers a unique prospect for advancing American democracy.
Download the article from SSRN at the link.

July 29, 2022

Mortenson and Gabley on Delegation at the Founding: A Response to the Critics @jdmortenson @nicholas_bagley @ColumLRev

Julian Davis Mortenson and Nicholas Bagley, both of the University of Michigan Law School, are publishing Delegation at the Founding: A Response to the Critics in the Columbia Law Review. Here is the abstract.
This essay responds to the wide range of commentary on "Delegation at the Founding," which is available at http://ssrn.com/abstract=3512154. The critics’ arguments deserve thoughtful consideration and a careful response. We’re happy to supply both. As a matter of eighteenth-century legal and political theory, “rulemaking” could not be neatly described as either legislative or executive based on analysis of its scope, subject, or substantive effect. To the contrary: depending on the relationships you chose to emphasize, a given act could properly be classified as both legislative (from the perspective of the immediate actor) and also executive (from the perspective of the authorizing principal) at the same time. As a formalist matter, the separation of powers objection is thus evanescent—subject to trivial reframing. In making rules pursuant to congressional instruction, administrative agencies are simultaneously exercising both legislative power (by promulgating authoritative legal commands) and also executive power (by implementing Congress’s authoritative instructions). This is *not* a functionalist argument; it is an insistent demand to take formalism seriously: the same government action was understood as both executive and legislative—and always was. As a matter of eighteenth-century governance practice, late eighteenth-century Anglo-American law was awash in legislative delegations. Nor did the adoption of the Constitution mark a change in that practice: its text does not specify new limits on delegation; no one in the ratification process suggested it might be read to do so; and vesting clauses in state constitutions with identically tripartite structures (and explicit separation-of-powers clauses) were understood to permit broad delegations. Early practice, in fact, suggests the Founders harbored no such belief. The First Congress passed dozens of laws delegating wide discretion to the President, to cabinet secretaries, to federal judges, to territorial governors, and to tax officials. No meaningful nondelegation objection was raised to any of these laws—and this at a time when legislators were inventing dubious constitutional arguments at the drop of a hat. The originalist argument for nondelegation doctrine fails on its own terms.
Download the essay from SSRN at the link.

July 27, 2022

Meyer on Connecticut's Anti-Originalist Constitutions and Its Independent Courts

Linda Ross Meyer, Quinnipiac University School of Law, is publishing Connecticut's Anti-Originalist Constitutions and its Independent Courts in volume 40 of the Quinnipiac Law Review (2022). Here is the abstract.
In recent years, the United States Supreme Court has taken up originalist interpretive approaches to the U.S. Constitution. The Court has become convinced (wrongly, in my view) that a traditional common law-style interpretation of constitutional rights undermines the Court’s authority by overstepping its role, usurping the prerogatives of the democratic branches, and stifling legal development by the states. Instead of reasoning from case to case, treating like cases alike in the usual evolutionary way of the common law, a majority of the members of the Court has insisted that constitutional rights should be frozen by English common law practices or treatises extant during the colonial period, and/or framers’ intentions and/or public understandings of constitutional language in 1789 or 1791 or 1868-70. These various and varying originalist approaches are often justified as providing more certainty in constitutional adjudication. Critics claim, however, that these new “originalisms” have the effect of halting the evolution of constitutional rights at the federal level, eroding stare decisis, and calling into question the continuing validity of some rights and constitutional doctrines that had been generated through prior common law development -- like rights of privacy, qualified immunity, privileges and immunities clause interpretation, retroactivity rules, state action requirements, and sovereign immunity doctrines -- while potentially changing the nature of other constitutional rights to a balance set at an earlier time -- like rights of religious exercise, rights of free speech, and criminal procedural rights. Somewhat ironically, as the originalist reformation takes hold, rights at the federal level are becoming ever more unpredictable and unstable, as the Supreme Court revisits and reevaluates many of its prior decisions in light of the latest originalist theory, or the latest historical scholarship on the colonial or founding period. States, of course, must follow the constitutional decisions of the U.S. Supreme Court, but only as to federal constitutional baselines. State constitutions are free to give their citizens more rights than the federal constitution does, and indeed, a more restrained style of interpreting federal constitutional law is often promoted because of its merit in allowing states more constitutional room to develop their own state constitutional and statutory law. In order to provide a firmer foundation of support for a non-originalist approach to state constitutional adjudication in Connecticut, and to explain why the Connecticut courts should not borrow originalist approaches from federal constitutional cases, as some jurists have argued, this paper makes four assertions: 1) As a matter of Connecticut state constitutional history, it makes no sense to assume as a default rule that the Connecticut Constitution should track the U.S. Supreme Court’s interpretation of the U.S. Constitution (except, of course, where the U.S. Constitution preempts state law). 2) As a matter of Connecticut state constitutional history, it makes no sense to assume that a right not present in the state’s colonial period is not sufficiently deeply rooted in Connecticut history to be protected by Connecticut constitutional law. In other words, colonial or pre-colonial originalism was not the original constitutional methodology in Connecticut. Hence, the failure of a litigant to demonstrate an exactly similar colonial or pre-1818 practice, should not doom a state constitutional argument. 3) As a matter of Connecticut state constitutional history, pre-1818 English common law should also not function as a state constitutional default rule, because Connecticut judges never followed English common law as mandatory authority. 4) Finally, as a matter of Connecticut state constitutional history, Connecticut’s constitutional rights provisions should not be interpreted as merely “codifying” rather than “announcing” constitutional rights, because both the 1818 and 1965 Constitutions were explicitly forward-looking, not backward-looking. In short, a close look at Connecticut constitutional history reveals that the Connecticut Constitution should not be interpreted through an originalist lens, and certainly not through an originalist lens that preferences the colonial or English common law period in the manner of recent U.S. Supreme Court approaches. Instead, the Connecticut courts should reclaim their own essential and historical role as interpreters of Connecticut constitutional and common law on grounds of principle, and on the traditional, common-law-style judicial approach of treating like cases alike. This article provides: 1) an overview of Connecticut constitutional development, demonstrating the future-orientation of Connecticut’s 1818 and 1965 Constitutions, 2) an analysis of the way in which the “historical” aspects of Connecticut constitutional analysis have been interpreted, and misinterpreted, by the Connecticut courts, 3) a suggestion that one of the most unique features of Connecticut’s legal development is a tradition of legal independence from historical authority that encouraged locally-informed, common-law-style interpretive practices by its courts, since Connecticut never “received” the English common law and did not adopt the federal Bill of Rights until well after the “founding” period, 4) suggests that the Constitutions of 1818 and 1965 offer more appropriate temporal points of reference for Connecticut constitutional interpretation than the pre-1818 era, even were the Connecticut courts to take an originalist approach, in part because of the more broadly representative group of framers who were involved (which in 1965 included white women, black men, and many groups traditionally excluded from government, like Catholics, Irish, Italians, Jews, and Poles) and 5) counsels generally against using originalist approaches to state constitutional interpretation as unworkable and uncertain, unfair to litigants without special access to historical sources, and contrary to the common law approach instantiated in core legal principles of reasoned and principled argument, equal treatment, and stare decisis.
Download the article from SSRN at the link.

July 26, 2022

Newly Published: Cultural Histories of Law, Media and Emotion: Public Justice (Katie Barclay and Amy Milka, eds., Routledge, 2022) @routledgepublishing @KatieEBarclay @AmyMilka

 Just published:


Cultural Histories of Law, Media and Emotion: Public Justice (Katie Barclay and Amy Milka, eds., Routledge Publishing, 2022). Here from the publisher's website is a description of the book's contents.



Cultural Histories of Law, Media and Emotion: Public Justice explores how the legal history of long-eighteenth-century Britain has been transformed by the cultural turn, and especially the associated history of emotion. Seeking to reflect on the state of the field, 13 essays by leading and emerging scholars bring cutting-edge research to bear on the intersections between law, print culture and emotion in Britain across the eighteenth and nineteenth centuries. Divided into three sections, this collection explores the ‘public’ as a site of legal sensibility; it demonstrates how the rhetoric of emotion constructed the law in legal practice and in society and culture; and it highlights how approaches from cultural and emotions history have recentred the individual, the biography and the group to explain long-running legal-historical problems. Across this volume, authors evidence how engagements between cultural and legal history have revitalised our understanding of law’s role in eighteenth-century culture and society, not least deepening our understanding of justice as produced with and through the public. This volume is the ideal resource for upper-level undergraduates, postgraduates and scholars interested in the history of emotions as well as the legal history of Britain from the late seventeenth to the nineteenth century.

July 25, 2022

Call For Applications: Post-Doctoral Research Positions in Legal History, University College Cork @LawUCC

From Dr. Patrick O' Callaghan, School of Law, University College Cork.

Job Vacancies: Two Post-Doctoral Researchers in Legal History Applications are invited for two Post-Doctoral Researcher/Senior Post-Doctoral Researcher posts based at the School of Law, University College Cork, Ireland for a period of 30 months (2.5 years). 

The researchers will collaborate on the Law and the Inner Self (LAWINSEL) Project, funded by the Irish Research Council. 

The project seeks to better understand the evolution and nature of the idea of the “inner self” in the liberal tradition by viewing it through the prism of legal change from the Middle Ages through to the digital transformations of the 21st century. A core focus of the research will be legal change in the field of personality rights. The researchers will conduct a specific programme of research under the supervision and direction of Dr Patrick O’Callaghan, Principal Investigator (PI) of the project. The ideal candidates will hold a PhD in legal history or a PhD with a substantial legal-historical component. They will have a publication record commensurate with their career stage. 

For one of the posts, an ability to read medieval Latin is desirable. For the other post, an ability to read German legal texts is desirable. A familiarity with the field of personality rights and proficiency in other major European languages are also desirable. Both candidates will have excellent communication, organisation and interpersonal skills. Further details can be found at this link. 

July 22, 2022

Call For Abstracts: LSU Law Journal for Social Justice and Policy @LSULawCenter @KenLevy2020

                                                                 Call For Papers

 

LSU Law Journal for Social Justice and Policy

November 11, 2022

Virtual

 

The LSU Law Journal for Social Justice and Policy is pleased to announce its Call for Papers for our upcoming symposium on the Industrial Prison Complex System. The Symposium will take place in a virtual format on November 11, 2022. 

 

Submissions can include but are not limited to the following topics:

·      Capital Punishment

·      The Business of Private Prisons

·      Hard Labor as Punishment

·      Implications of the 8th Amendment

·      Federal v. State v. Private Prisons

·      The implications of the current prison system

·      Restitution for Innocent individuals imprisoned

·      Sentencing Guidelines and the impact on prisons

·      Alternatives to Prison for non-violent offenders

·      Economic Impacts of the Current Prison System

·      Two-Year Anniversary of George Floyd: Where are we at now?

·      Decriminalizing Marijuana

·      Privatization of Probation

·      No Cash Bail v. Cash Bail

 

LJSJP seeks to elevate underrepresented voices in legal academia and to confront pressing social justice issues of the day. Academics at all levels and in all disciplines (not just law) are encouraged to apply.

 

To apply, please submit an abstract of approximately 350-750 words through this form by August 29, 2022.

 

 

 

July 21, 2022

Choi on Computational Corpus Linguistics

Jonathan H. Choi, University of Minnesota Law School, has published Computational Corpus Linguistics. Here is the abstract.
Scholars and judges increasingly interpret legal text by studying word use in real-world documents, a method known as “corpus linguistics.” But the traditional approach to corpus linguistics encounters several problems. It focuses on word frequencies at the expense of subtler linguistic cues and presents no clear dividing line between correct and incorrect textual meanings. It also requires a variety of subjective and opaque judgment calls, allowing motivated interpreters to cherry-pick the method that supports their favored meanings. This Article proposes a new, computational approach to corpus linguistics. It uses machine learning and natural language processing to algorithmically evaluate word meaning. By measuring the semantic similarity between words, we can answer questions of legal interpretation—for example, by testing whether “judge” is similar to “representative,” and therefore whether judicial elections are governed by the Voting Rights Act. Computational approaches produce quantitative estimates of similarity that reflect the intuitive semantic relationships between words. This Article extracts qualitative implications from these quantitative estimates by benchmarking against a known scale of word similarity, based on H.L.A. Hart’s famous “vehicles in the park” hypothetical. Applying computational corpus linguistics, this Article finds that semantic questions in real-world legal cases rarely give clear answers. Borrowing Hart’s analogy, most cases are closer to asking whether a bicycle is a vehicle than whether a car is a vehicle. Moreover, estimates of similarity vary substantially between corpora, even large and reputable ones. This suggests that the choice of corpus matters more than previously recognized and that traditional corpus linguists must consult multiple corpora to decrease the risk of cherry-picking. These empirical findings have important implications for ongoing doctrinal debates outside of corpus linguistics, suggesting that text is less clear and objective than many textualists believe. The Article develops these implications with discussion on the nature of linguistic meaning in legal interpretation. Ultimately, the Article offers new insights both to theorists considering the role of legal text and to empiricists seeking to understand how text is used in the real world.
Download the article from SSRN at the link.