September 29, 2017

Gerber on Law and Catholicism in Colonial Maryland @ONULaw

Scott D. Gerber, Ohio Northern University College of Law, has published Law and Catholicism in Colonial Maryland at 103 Catholic Historical Review 465 (2017). Here is the abstract.
Montesquieu famously concluded in The Spirit of the Laws that each form of government has an animating principle — a set of “human passions that set it in motion” — and that each form can be corrupted if its animating principle is undermined. Maryland is a compelling case study of Montesquieu’s theory: founded in 1632 by Lord Baltimore as a haven for Catholics, a mere two decades later that animating principle was dead. This article explores why. More specifically, the article examines the birth, death, and resurrection of Maryland’s animating principle by identifying with as much precision as possible the impact of the law itself on regime change in colonial Maryland.
Download the article from SSRN at the link.

Cushman on The "Constitutional Revolution" of 1937 @NDLaw

Barry Cushman, Notre Dame Law School, has published Inside the 'Constitutional Revolution' of 1937 at 2016 Supreme Court Law Review 367 (2017). Here is the abstract.
The nature and sources of the New Deal Constitutional Revolution are among the most discussed and debated subjects in constitutional historiography. Scholars have reached significantly divergent conclusions concerning how best to understand the meaning and the causes of constitutional decisions rendered by the Supreme Court under Chief Justice Charles Evans Hughes. Though recent years have witnessed certain refinements in scholarly understandings of various dimensions of the phenomenon, the relevant documentary record seemed to have been rather thoroughly explored. Recently, however, a remarkably instructive set of primary sources has become available. For many years, the docket books kept by a number of the Hughes Court justices have been held by the Office of the Curator of the Supreme Court. These docket books supply a wealth of information concerning the internal deliberations of the justices. Justice Pierce Butler’s docket book in particular provides a remarkably rich set of notes on the Court’s discussions of cases in conference. Yet the existence of these docket books was not widely known, and access to them was highly restricted. As a consequence scholars knew very little about the Court’s internal deliberations in the landmark cases of its 1936 October Term. This article, which is based upon a review of all of the surviving docket books from that Term, considers what those sources can teach us about the cases comprising what some have called the “switch-in-time”: West Coast Hotel Co v Parrish, which upheld Washington State’s minimum wage law for women and overruled Adkins v Children’s Hospital; the Labor Board Cases, which upheld the constitutionality of the National Labor Relations Act; and the Social Security Cases, which upheld the constitutionality of provisions of the Social Security Act establishing an old-age pension system and a federal-state cooperative plan of unemployment insurance, as well as corresponding state unemployment compensation statutes. Considered in concert with information previously known, the data revealed by these docket books shed considerable new light on the nature of the Court’s deliberations in each of these three sets of cases, on the reasons for its decisions, and on the contention that the justices wrought a “Constitutional Revolution” in the spring of 1937.
Download the article from SSRN at the link.

Dorsett on Metropolitan Theorizing: Legal Frameworks, Protectorates, and Models for Maori Governance, 1837-1838

Shaunnagh Dorsett, University of Technology Sydney, Faculty of Law, has published Metropolitan Theorising: Legal Frameworks, Protectorates and Models for Maori Governance 1837-1838 at 3 Law & History 1 (2016). Here is the abstract.
This article considers the little-known 1838 proposal by Robert Torrens for the establishment of a native government in New Zealand. In so doing, it joins recent literature which seeks to move away from doctrinal or juridical legal history through an exploration of the ways in which legal concepts were used in the first part of the nineteenth century by colonial actors as tools, deployed for political advantage, rather than in strict reliance on them as a particular legal form. In so doing, however, this article also contends that although legal concepts were often malleable and could be, and were, deployed in this way, those who relied on them were also bound by Imperial constitutional principles which, while often broad and ambiguous, nevertheless acted as limits on the deployment of these concepts.

Download the article from SSRN at the link. 

September 28, 2017

van den Berge on Sophocles' Antigone and the Promise of Ethical Life

Lukas van den Berge, Erasmus University Rotterdam (EUR), Erasmus School of Law, has published Sophocles’ Antigone and the Promise of Ethical Life: Tragic Ambiguity and the Pathologies of Reason. Here is the abstract.
This article aims to demonstrate that works of art and literature can provide important insights in law and justice that are hard to grasp by one-sidedly rationalist methods of academic analysis. It takes Sophocles’ Antigone - perhaps the most classical text of law and literature’s familiar catalogue - as a case in point, drawing attention to some important aspects of that play’s legal epistemic relevance that are still largely overlooked. Arguing that the widespread view on the confrontation between Antigone and Creon as a clash between ‘divine’ and ‘human’ law is mistaken, the article builds forth on Hegel’s view that the positions of both protagonists are likewise incomplete, denying elements of law and justice that are equally essential, the one being no less divine than the other. However, it departs from Hegel’s analysis in maintaining that the play does not entail the promise of ‘ethical life’ (Sittlichkeit) as some synthesis that recognises the specific value of both Antigone’s and Creon’s stances on law and justice but takes away their incompatibility. Instead, it is argued that the play rather teaches us that such a synthesis is unattainable - a no less valuable lesson indeed.
Download the article from SSRN at the link.

September 27, 2017

Murray on The Sharpest Tool In the Toolbox: Visual Legal Rhetoric and Narrativity

Michael D. Murray, University of Massachusetts School of Law, has published The Sharpest Tool in the Toolbox: Visual Legal Rhetoric and Narrativity. Here is the abstract.
The visual brief will become the norm in legal practice, because of the communicative and rhetorical power of visual media. Visual devices work rapidly, almost immediately, to communicate ideas and attain the audience’s adherence to the meaning and truth of the ideas communicated and thus to persuade the audience of the truth and propriety of the speaker’s communication, which allows greater perception, comprehension, and retention of information. Visual imagery is not only faster than words, it is better than words. Law students and lawyers should be aware that the tool of visual rhetoric is very sharp, and because of the audience’s role in interpreting and understanding the message of visual works, the sharpness cuts in multiple directions. These attributes require special attention so as to avoid intentional or inadvertent misleading of the audience when using visual rhetorical devices. This Article draws lessons from the power, complexity, and potential dangers of visual rhetoric regarding: (A) the analysis of when to use or not use a visual; (B) the decision to manipulate or not to manipulate images or video; (C) the decision to use color or not to use color; (D) the advisability of focus groups, or a wider and more diverse test audience; and (E) the goal to capture the "decisive moment" in a visual.
Download the article from SSRN at the link.

Phillips and White on The Meaning of the Three Emoluments Clauses in the U.S. Constitution: A Corpus Linguistic Analysis of American English, 1760-1799

James Cleith Phillips, University of California, Berkeley, School of Law (Students), and Sara White, Brigham Young University, Law School; BYU Center for Language Studies, have published The Meaning of the Three Emoluments Clauses in the U.S. Constitution: A Corpus Linguistic Analysis of American English, 1760-1799. Here is the abstract.
The recent flurry of scholarship seeking to understand the meaning of the emoluments clauses of the Constitution, particularly the Foreign Emoluments Clause, in the wake of President Trump’s election and subsequently filed lawsuits, has relied on a host of interpretive methodologies. To the extent scholars now (and courts later) seek to understand what the term emolument(s), used thrice in the Constitution, would have meant to the founding generation, their methodologies in determining such have generally relied on small, unrepresentative samples of language usage and founding era dictionaries. But the former cannot confidently provide insights that we can generalize to the greater population (either overall or of lawyers) from the time, and the latter are simply not up to the task of determining usage patterns. Instead, corpus linguistics—what Professor Lawrence Solum had predicted “will revolutionize statutory and constitutional interpretation”—is needed to answer that question. This paper tackles the meaning of emolument(s) in the founding era using the first (that we can find) full-blown corpus linguistic analysis of constitutional text in American legal scholarship. While at least three others (Randy Barnett, Jenn Mascott, and Joel Hood) have done corpus linguistics-like analysis in constitutional interpretation, none have used all of the tools of a corpus (collocation, clusters/n-grams, frequency data, and concordance lines) and used a sufficiently large and representative corpus of the relevant time period—here the underlying data of the soon-to-be released Corpus of Founding Era American English (COFEA)—to make confident conclusions about probably founding-era meaning. The article does not discount other methodologies of constitutional exegesis; nor does the article claim to prove the meaning of any of the Constitution’s invocation of the word emolument, only make some meanings more probable than others; nor does the article take sides on whether the President has violated the Constitution. But the article does add another piece to the emolument puzzle, and provides a more rigorous, relevant, transparent, and accurate methodology than scholars have so far employed in investigating the original public meaning of the various emoluments clauses. In sum, this article is narrower than most on the topic, but within that niche it dives deeper than any have so far gone. We constructed three corpora for our analysis that covered 1760-1799: one of books, pamphlets and broadsides from a mix of ordinary and elite authors (53.4 million words), one correspondence of six major “Founders” (43.9 million words), and one of legal materials (48.6 million words). From each we sampled about 250 instances of the use of the term emolument (and read over 150,000 words of context--the equivalent of a Harry Potter novel). We found that the broad, general sense of emolument was the most common compared to the narrow, office/public employment sense in the “ordinary” corpus (54.6% to 34.1%, 11.2% ambiguous), but that the general sense was less common than the narrow sense in the “elite” corpus (29.3% to 64.8%, 5.9% ambiguous) and the “legal” corpus (25.6% and 68.7%, 5.7% ambiguous). When just looking at instances in our sample where the recipient is an office, we found the narrow sense dominated: “ordinary” corpus (84.2%), “elite” corpus (88.0%), “legal” corpus (94.2%). And the narrow sense was even more common when looking in the context of emoluments from government: “ordinary” corpus (86.7%), “elite” corpus (92.6%), and “legal” corpus (97.3%). This paper concludes that the Congressional and Presidential Emoluments Clauses would have most likely been understood to contain a narrow, office or public-employment sense of emolument. But the Foreign Emoluments Clause is more ambiguous given its modifying language “of any kind whatever.” Further research into that phrase is needed.
Download the article from SSRN at the link.

Heyman on The Light of Nature: John Locke, Natural Rights, and the Origins of American Religious Liberty @ChicagoKentLaw @MarqLRev

Steven J. Heyman, Chicago-Kent College of Law, IIT, is publishing The Light of Nature: John Locke, Natural Rights, and the Origins of American Religious Liberty in the Marquette Law Review. Here is the abstract.
This Article explores John Locke’s theory of religious liberty, which deeply influenced the adoption of the First Amendment and the first state bills of rights. Locke sharply criticized the religious and political order of Restoration England – an order in which the king claimed to hold absolute power by divine right and in which individuals were required by law to conform to the established church. In opposition to this regime, Locke developed a powerful theory of human beings as rational creatures who were entitled to think for themselves, to direct their own actions, and to pursue their own happiness within the bounds of the law of nature. He then used this view to give a new account of political and religious life. To promote their happiness in this world, rational individuals would agree to give up some of their natural freedom and to enter into a civil society for the protection of their natural rights or “civil interests” of life, liberty, and property. By contrast, Locke argued that, when they made the social contract, rational individuals would not surrender any of their religious freedom, for they could reasonably hope to attain eternal happiness or salvation only if they used their minds to seek the truth about God and the path he desired them to follow. For Locke, the most basic precepts of religion could be known by the light of nature and reason, while others were matters of faith. Locke’s conception of human beings as rational creatures provided the basis not only for individual rights but also for duties toward others. Reason required one to recognize that other individuals were entitled to the same rights one claimed for oneself. It followed that all members of society were obligated to respect both the religious freedom and the civil rights of those who differed with them in matters of religion. In addition to defending religious freedom, Locke advocated a strict separation of church and state. Because liberty of conscience was an inalienable right, individuals would not grant the state any authority over spiritual matters. Instead, those matters were reserved for the individuals themselves as well as for the religious societies or churches that they voluntarily formed to promote their salvation. In these ways, Locke sought not only to protect the inherent rights of individuals but also to dissolve the dangerous unity between church and state that characterized the Restoration. At the same time, he sought to transform the nature of those institutions in a profound way: instead of being rooted in any notion of a hierarchy ordained by God or nature, both church and state should be founded on the consent of free and equal individuals and should respect their nature as rational beings. Understood in this way, religion would be an ally rather than a threat to human liberty. After exploring Locke’s theory, the Article sketches some of the ways that it contributed to the eighteenth-century American view of religious liberty that was embodied in First Amendment.
Download the article from SSRN at the link.

September 26, 2017

A New Book From Hart Publishing: Nahel Asfour: Wrongful Enrichment: A Study in Comparative Law and Culture @hartpublishing @nn_asfour

New from Hart Publishing:

Nahel Asfour, Wrongful Enrichment: A Study in Comparative Law and Culture (2017)(International Studies in the Theory of Private Law).  Here is a description of the book's contents.

This book analyses enrichment law and its development and underpinning in social culture within three geographical regions: the United States, western members of the European Union and the late Ottoman Empire. These regions correspond, though imperfectly, with three different legal traditions: the American, continental and Islamic traditions. 
The book argues that we should understand law as a mimetic artefact. In so doing, it explains how typical patterns and exemplary articulations of wrongful enrichment law capture and reiterate vocal cultural themes found in the respective regions. The book identifies remarkable affinities between poetic tendencies, structures and default dispositions of wrongful enrichment law and cultural world views. It offers bold accounts of each region's law and culture providing fertile grounds for external and comparative elucidations of the legal doctrine.

Media of Wrongful Enrichment

September 25, 2017

Tilburg University Accepting Applications For Witteveen Memorial Fellowship In Law and Humanities @TilburgU

From Michiel Bot, Tilburg University:

In 2014, Tilburg University established the annual Witteveen Memorial Fellowship in Law and Humanities in order to commemorate the life and work of prof. Willem Witteveen. The fellowship aims to enable a junior scholar (PhD or postdoc level) to develop her or his research in the field of law and humanities during a visit to Tilburg. The fellowship seeks to promote research on the relations between law and language, rhetoric, narrative, image, sound, and/or culture.
 What is expected of the Witteveen Memorial Fellow:During the period of the fellowship the scholar will be present in at Tilburg Law School, participate in the academic life of both Tilburg Law School and the Tilburg School of Humanities, and deliver a guest lecture to students. Any publications resulting from the fellowship should mention the Witteveen Memorial Fellowship in Law and Humanities.
 Eligible CandidatesScholars who are currently working on a PhD dissertation (at least in the third year of their PhD trajectory) or who obtained their PhD within the last five years are eligible. What the Witteveen Memorial Fellowship in Law and Humanities offers:The Witteveen Memorial Fellow will have office space and facilities at Tilburg Law School, as well as full library access. We offer reimbursement of travel expenses and accommodation expenses (max. 5,250 Euro). The Witteveen Memorial Fellowship does not constitute an employment relationship. For this reason, Tilburg Law School will not pay salary and will not make social insurance contributions or contributions to pension or unemployment insurance. Fellows will need to find their own accommodation. In principle, the Witteveen Memorial Fellow in Law and Humanities will be at Tilburg Law School for the duration of three months in the spring following the application deadline. Candidates are welcome to propose a different period. In case the fellow will visit for  less than three months, the maximum amount to be reimbursed will be proportionately lower. If the fellow’s visit will be longer, the total amount to be reimbursed remains 5,250 euro. Professor Willem Witteveen (1952-2014) was an early representative of the interdisciplinary and contextual approach to legal scholarship in the Netherlands. Whereas the emphasis of this approach has often been on the social sciences, Willem’s focus was on intersections between law and the humanities. Willem’s many contributions to academia, politics and society combined rhetoric, literary analysis, political philosophy and intellectual and cultural history. In his teaching, Willem embraced  the classic Bildungsideal, and put textual interpretation at the heart of his classes. He fostered an academic environment that revolved around thinking and discussing. You can apply for the fellowship here:  

Somos on George Ticknor's Progress of Politicks (1816): An American Reception of German Comparative Constitutional Thought @msomos

Mark Somos, Harvard University, Edmond J. Safra Center for Ethics, Harvard Law School, has published George Ticknor’s Progress of Politicks (1816): An American Reception of German Comparative Constitutional Thought as Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2017-20. Here is the abstract.
George Ticknor (1791-1871) was a famous American educator, reformer, and public intellectual. After a brief legal career he moved to Germany to obtain the best possible education in the humanities, and take his knowledge and ideas for educational reform back to the young United States with him. His unpublished notebooks reveal that like many of his peers, such as John Quincy Adams, George Bancroft, or Edward Everett, Ticknor was also fascinated by German constitutional theory and history, their connection to politics and human geography, and the forerunners of German legal science. Throughout his life, Ticknor revised his notes and drew on them in his teaching. Progress of Politicks, one of the notebooks, is transcribed and edited here to offer new insights into German and American mutual perceptions, self-perceptions and exchange, legal education, and the origins of legal science in both Germany and the United States.
Download the article from SSRN at the link.

Burazin on Brian Leiter and the Naturalization of the Philosophy of Law

Luka Burazin, University of Zagreb Faculty of Law, is publishing Brian Leiter and the Naturalisation of the Philosophy of Law in The Province of Jurisprudence Naturalized (Jerzy Stelmach, Bartosz Brożek, and Łukasz Kurek eds. Warsaw: Wolters Kluwer 2017).
The paper opens with an exposition of the basic ideas of the philosophical school of naturalism and its most widespread version, methodological naturalism. This is followed by three of Leiter’s proposals for the naturalisation of questions of the philosophy of law: the first consists in naturalising the theory of adjudication modelled on replacement and normative naturalism in epistemology, the second consists in turning the philosophy of law into the abstract and reflective part of the empirical social sciences on law, and the third consists in colonising the philosophy of law with experimental philosophy. The thesis that the last version of Leiter’s naturalism is, in fact, reduced to a so-called modest methodological naturalism is put forward. The paper closes with the most important criticisms of Leiter’s naturalistic methodological approach, as well as with the thesis on the complementarity between conceptual analysis and modest methodological naturalism.
Download the essay from SSRN at the link.

September 24, 2017

Rick Grimes (The Walking Dead) In an Australian Court @bucketorange

More of Sarah Lynch's musings on chargeable crimes for tv characters here for Bucket Orange. This time she considers what Rick Grimes of The Walking Dead has been up to, and what charges he might face in an Australian court.

Dracula In Court @bucketorange

By Sarah Lynch, for Bucket Orange Magazine, a discussion of possible crimes Dracula could be charged with under Australian law. They include stalking and false imprisonment. But he's so charming...

September 22, 2017

Sheryll Cashin's New Book on the Loving v. Virginia Case: Loving: Interracial Intimacy in America and the Threat To White Supremacy @SheryllCashin @GeorgetownLaw

New from Beacon Press: Sheryll Cashin, Loving: Interracial Intimacy in America and the Threat To White Supremacy (2017). Here is a description of the book's contents.
Loving beyond boundaries is a radical act that is changing America. When Mildred and Richard Loving wed in 1958, they were ripped from their shared bed and taken to court. Their crime: miscegenation, punished by exile from their home state of Virginia. The resulting landmark decision of Loving v. Virginia ended bans on interracial marriage and remains a signature case—the first to use the words “white supremacy” to describe such racism. Drawing from the earliest chapters in US history, legal scholar Sheryll Cashin reveals the enduring legacy of America’s original sin, tracing how we transformed from a country without an entrenched construction of race to a nation where one drop of nonwhite blood merited exclusion from full citizenship. In vivid detail, she illustrates how the idea of whiteness was created by the planter class of yesterday and is reinforced by today’s power-hungry dog-whistlers to divide struggling whites and people of color, ensuring plutocracy and undermining the common good. Cashin argues that over the course of the last four centuries there have been “ardent integrators” and that those people are today contributing to the emergence of a class of “culturally dexterous” Americans. In the fifty years since the Lovings won their case, approval for interracial marriage rose from 4 percent to 87 percent. Cashin speculates that rising rates of interracial intimacy—including cross-racial adoption, romance, and friendship—combined with immigration, demographic, and generational change, will create an ascendant coalition of culturally dexterous whites and people of color. Loving is both a history of white supremacy and a hopeful treatise on the future of race relations in America, challenging the notion that trickle-down progressive politics is our only hope for a more inclusive society. Accessible and sharp, Cashin reanimates the possibility of a future where interracial understanding serves as a catalyst of a social revolution ending not in artificial color blindness but in a culture where acceptance and difference are celebrated.


Magendanz on the Structure of Religious Violence: Hugo Grotius on Property and Pious War @DougMagendanz

Doug Magendanz, University of Queensland, has published The Structure of Religious Violence: Hugo Grotius on Property and Pious War. Here is the abstract.
Hugo Grotius (1583-1645) is well-known for his defence of just war in The Rights of War and Peace (1625). He is less well-known for his defence of pious war and religious violence. God wants Christians to wage just war against the wicked, he argued, this being part of ‘the whole duty of a Christian solider’. Grotius held that religion presents no barrier to military alliances and commercial trade with heretics, infidels, and pagans. On the contrary, religion is an ideological tool to be used to achieve national prosperity and international justice (Immanuel Kant famously called him a ‘sorry comforter’ of military aggression). Grotius replaced the traditional defence of religious violence (the liberty of the Church) with a new libertarian defence of property rights. Religious war is justified on non-religious grounds, namely the protection of property and the recovery of just compensation for injury and sin. This paper examines Grotius’s defence of pious war, paying special attention to the creditor-debtor relationship as foundational structure of religious violence.
Download the article from SSRN at the link.

West on The New Legal Criticism @GeorgetownLaw

Robin L. West, Georgetown University Law Center, has published The New Legal Criticism at 117 Columbia Law Review Online 144 (2017). Here is the abstract.
Professors Hanoch Dagan and Avihay Dorfman’s article Just Relationships is a fundamental reinterpretation of the moral ideals of large swaths of private law. Its significance, however, may go beyond even that broad ambition. In this Response, I suggest that Just Relationships is also an exemplar — perhaps par excellence — of an emergent form of critical discourse, which may itself foreshadow a paradigm shift in contemporary critical legal scholarship. That new form of scholarship might usefully be dubbed “the new legal criticism.” The label serves partly as an echo of the “New Criticism” movement that emerged in literary criticism in the middle of the twentieth-century, which, in methodological ways, the new legal criticism very much resembles. But primarily, the label “new legal criticism” suggests that this ascendant group of legal scholars articulates a different point of departure for critical thinking about law — particularly for critical thinking about private law — from that which most immediately preceded it in twentieth century legal thought: the critical legal studies movement. Part I describes new legal criticism and compares it with the critical legal scholarship movements of the 1970s, 1980s, and 1990s. Part II further expands my claim that Just Relationships is a good exemplar of the new legal criticism by looking at the roles played by relational justice in Dagan and Dorfman’s explication of their jurisprudential claims. Part III looks at the limits of new legal criticism, again as exemplified by Just Relationships. I will explore whether the reliance of the new legal criticism on law itself in the development of the idea of justice limits its potency as a form of criticism by comparing the authors’ discussion of discrimination in housing with a subject they do not address, at-will employment. Finally, the conclusion explores possible avenues of further exploration within the authors’ chosen field — private law, largely understood — and within the parameters set by the new legal criticism’s premises.

Download the article from SSRN at the link. 

September 20, 2017

West In Praise of Richard Weisberg's Intransigence @GeorgetownLaw @CardozoLaw

Robin L. West, Georgetown University Law Center, has published In Praise of Richard Weisberg's Intransigence at 29 Law & Literature 21 (2017). Here is the abstract.
In early essays on Herman Melville’s Billy Budd, Sailor, Richard Weisberg startled the literary and legal academic world with a novel claim: Captain Vere, he argued, far from being a tragic hero resigned to the moral and legal necessity of an unpopular act, as he had been commonly understood, was a murderer. His summary execution of Billy Budd, Weisberg showed, was neither required, excused, nor justified by law. Rather, Vere engineered an unreviewable conviction and death sentence, contrary to both the letter and spirit of the governing positive law, for personal gain. But why was Weisberg’s claim so novel? Why was it that for seven decades, well over half a century, Vere’s villainy was so obscure, even to so many legally sophisticated readers? In this article, I argue that the obscurity of Vere’s villainy resulted from the dominant legal theories developed over the past seven decades. This, in turn, explains the novelty of Weisberg’s understanding of Vere’s character: his understanding rests on a conception of law and legal meaning distinctively outside all our received jurisprudential traditions. And it suggests a much-needed corrective, not only of our understanding of Melville’s story, but also of our conventional and critical jurisprudence. It suggests the case, more specifically, for moving our conventional legal thinking away from its focus on the unjust law, and toward the duplicitous or unjust adjudicator, and for moving our critical sensibility away from its still-dominant commitments to indeterminacy, legal skepticism, and interpretive flexibility, and toward an appreciation of the virtues of legal intransigence. In the first part of this article, I put forward an account of why it was that Richard Weisberg could see clearly what was beyond the reach to most of Billy Budd’s professional readers for the duration of the book’s life, both in law and in literature. In the second part, I turn to Weisberg’s recent defense of legal intransigence, suggesting some reasons we should attend more carefully to the case Weisberg has made for intransigence and against “flexibility” in law and jurisprudence. I then offer a couple criticisms along with a qualified endorsement of Weisberg’s brief for interpretive fidelity to positive law, informed by humane commitments to text, law, and moral rectitude.
Download the article from SSRN at the link.

Munshi on Comparative Law and Decolonizing Critique @GeorgetownLaw

Sherally K. Munski, Georgetown University Law Center, has published Comparative Law and Decolonizing Critique. Here is the abstract.
This essay seeks to reanimate comparative legal scholarship by reorienting it towards decolonizing critique. In his critical assessment of the state of the field, Pierre Legrand suggests that comparative law has become mired in a solipsistic and outmoded style of positivism. Drawing upon theoretical insights from critical theory, Legrand argues that comparative law might render itself more generative and more relevant by engaging in a more contextualized analysis of law and encouraging active interpretation beyond descriptive reporting. In this essay, I extend Legrand’s arguments to suggest that an emancipated, incorporative, and interdisciplinary comparative law might play an important role in decolonizing legal scholarship more broadly. Founded in a commitment to constrain an ethnocentric impulse in legal discourse, comparative law might be expanded to challenge the varieties of Eurocentrism that continue to define legal scholarship and study, while providing hospitable ground for critical and interdisciplinary projects aimed at exploring the colonial roots of both the contemporary nation-state system and globalized racial formations.
Download the article from SSRN at the link.

Feminism In London: An October 14-15 Event Sponsored by FiLiA @FiLiA_charity @ThomGiddens

Via Thom Giddens @ThomGiddens:

FiLiA announces a conference at the Institute of Education, London, October 14-15, 2017, on Feminism in London. Some of the panels and workshops include "When Courage Is "Illegal," "Justice For Women," "Prison Doesn't Work," "Feminist Art," "International Activism," "Domestic Abuse and the Family Courts," and Lesbian Line: 40 Years."

There are also a number of interesting events planned, including art exhibitions and some performances and readings. There's also a breakout session on sex robots: I would love to attend that.

This event looks wonderful.

September 19, 2017

Alexander on Objects of Art; Objects of Property @CornellLaw

Gregory S. Alexander, Cornell Law School, has published Objects of Art; Objects of Property as Cornell Legal Studies Research Paper No. 17-39. Here is the abstract.
Seemingly worlds apart, art and the law of property in fact share much in common. Some of this shared space is obvious, the result of their intersection through property law's protection and regulation of art. But another aspect of their commonality is considerably less obvious. Both rely, implicitly and in ways not always acknowledged, on assumptions about objects in the world-thing-ness. That is, both have relied, or traditionally have done so, on certain assumptions about the nature of objects-the objects of art and the objects of property-and the upshot of those assumptions is that those objects are characterized by thing-ness, i.e., physicality, tangibility, stability, durability. Further, these assumptions are not only parallel to each realm but intersect with each other in functional ways. Notably, property law's interaction with art depends upon art's assumption of its own thing-ness, for property law itself traditionally has depended upon certain assumptions regarding the nature of property-what can be property. It has assumed that art is a tangible, stable, and durable object.
Download the article from SSRN at the link.

Silver on Serfdom By Contract In the Late Roman Empire

Morris Silver, City College of New York, Economics Department, has published Serfdom by Contract in the Late Roman Empire. Here is the abstract.
Legal codes and other documents of the late Roman Empire reveal a system, the colonate, which resembles serfdom in the Middle Ages. Farmers (coloni) had their (head and land) taxes paid by estate owners in whose census rolls they were registered. If the land changed ownership coloni were entitled to stay and were registered in the tax roll of the new owner. However, coloni and their offspring lacked the right to migrate. The paper argues that the pristine or original form of the colonate is a voluntary contractual arrangement among free farmers, estate owners, and the imperial Fiscus which acquired a public law dimension because it required a change in the personal status of the farmer. By means of this serfdom contract the contractors expected to share in the aggregate gains from reducing tax-collection costs and from stabilizing tax revenues. The paper goes on to suggest that a secondary or derived form of the serfdom contract probably emerged in response to the Roman state’s interventions in credit markets. The paper next considers the implications of the colonate for economic efficiency and concludes with some observations on the reasons for changes over time in its importance.
Download the article from SSRN at the link.

New From McGill University Press: Censored: A Literary History of Subversion, by Matthew Fellion and Katherine Inglis @EdinburghUni

Via Simon Stern (ArsScripta)

New from McGill University Press:

Matthew Fellion, Independent Scholar, and Katherine Inglis, Department of English, University of Edinburgh, have published Censored: A Literary History of Subversion and Control (2017).


When Henry Vizetelly was imprisoned in 1889 for publishing the novels of Émile Zola in English, the problem was not just Zola’s French candour about sex - it was that Vizetelly’s books were cheap, and ordinary people could read them. Censored exposes the role that power plays in censorship. In twenty-five chapters focusing on a wide range of texts, including the Bible, slave narratives, modernist classics, comic books, and Chicana/o literature, Matthew Fellion and Katherine Inglis chart the forces that have driven censorship in the United Kingdom and the United States for over six hundred years, from fears of civil unrest and corruptible youth to the oppression of various groups - religious and political dissidents, same-sex lovers, the working class, immigrants, women, racialized people, and those who have been incarcerated or enslaved. The authors also consider the weight of speech, and when restraints might be justified. Rich with illustrations that bring to life the personalities and the books that feature in its stories, Censored takes readers behind the scenes into the courtroom battles, legislative debates, public campaigns, and private exchanges that have shaped the course of literature. A vital reminder that the freedom of speech has always been fragile and never enjoyed equally by all, Censored offers lessons from the past to guard against threats to literature in a new political era.

Pert on the Development of Australia's Legal Personality

Alison Pert, University of Sydney Law School, has published The Development of Australia's International Legal Personality at 34 Australian Yearbook of International Law 149 (2017). Here is the abstract.
This article considers the concepts of statehood, sovereignty, independence and international legal personality as they applied to Australia in the early years after federation in 1901. It outlines the reasons for, and the process of, federation, and charts the subsequent uneven growth in autonomy in matters of foreign relations granted by the United Kingdom. One of the clearest manifestations of such autonomy is the power to enter into treaties, and the development of this power is therefore described in some detail. The precise international legal status of Australia and the other British Dominions in the early part of the 20th century was a mystery to most legal commentators, both within and outside the British Empire. This uncertainty was compounded by the rapidity of constitutional change within the Empire, particularly in the 1920s, and by Australia’s apparent diffidence to independence. For these reasons, few writers have suggested a specific date on or by which Australia acquired international legal personality. This article argues that regardless of when Australia might have gained full international legal personality, tantamount to independence, it had acquired “almost full” international personality by 1923, sufficient to enable it to act autonomously on the international plane.
Download the essay from SSRN at the link.

September 18, 2017

New From OUP: New Directions in Law and Literature @OxUniPress

New from Oxford University Press: New Directions in Law and Literature (Elizabeth S. Anker and Bernadette Meyler, 2017). Here is a description of the contents.
After its heyday in the 1970s and 1980s, many wondered whether the law and literature movement would retain vitality. This collection of essays, featuring twenty-two prominent scholars from literature departments as well as law schools, showcases the vibrancy of recent work in the field while highlighting its many new directions. New Directions in Law and Literature furnishes an overview of where the field has been, its recent past, and its potential futures. Some of the essays examine the methodological choices that have affected the field; among these are concern for globalization, the integration of approaches from history and political theory, the application of new theoretical models from affect studies and queer theory, and expansion beyond text to performance and the image. Others grapple with particular intersections between law and literature, whether in copyright law, competing visions of alternatives to marriage, or the role of ornament in the law's construction of racialized bodies. The volume is designed to be a course book that is accessible to undergraduates and law students as well as relevant to academics with an interest in law and the humanities. The essays are simultaneously intended to be introductory and addressed to experts in law and literature. More than any other existing book in the field, New Directions furnishes a guide to the most exciting new work in law and literature while also situating that work within more established debates and conversations.

Table of Contents:

Part One-Genealogies and Futures
1) Elizabeth S. Anker and Bernadette Meyler, 2) Brook Thomas, 3) Caleb Smith, 4) Austin Sarat,
Part Two-Methods5) Martin Jay Stone, 6) Peter Brooks, 7) Ravit Reichman, 8) Janet Halley, 9) Lorna Hutson, 10) Bernadette Meyler, 11) Peter Goodrich, 12) Julie Stone Peters, 13) Elizabeth S. Anker,
Part Three-Cases
14) Anne Cheng, 15) Imani Perry, 16) Eric Cheyfitz and Shari Huhndorf, 17) Elliott Visconsi, 18) Elizabeth Emens, 19) Simon Stern, 20) Paul Saint-Amour, 21) Priscilla Wald, 22) Wai Chee Dimock,

The book is available in hardcover, paperback, and ebook. 

Cornell University Press Launches New Series: Corpus Juris: The Humanities in Politics and Law @CornellPress

Elizabeth Anker, Department of English, Cornell University, announces a new book series with Cornell University Press called "Corpus Juris: The Humanities in Politics and Law."

She notes that the editors are currently accepting submissions and encourage potential authors to contact with any questions or other inquiries.

Paulson on Metamorphosis in Hans Kelsen's Legal Philosophy

Stanley L. Paulson, Washington University Law School (Emeritus), has published Metamorphosis in Hans Kelsen's Legal Philosophy at 80 The Modern Law Review 860 (2017). Here is the abstract.
Two major questions stem from the fundamental shift in Hans Kelsen's legal philosophy that takes place in 1960 and the years thereafter: first, the scope of the shift and, second, its explanation. On the first question, I argue that the shift is not limited to Kelsen's rejection of the applicability of logic to legal norms. Rather, it reaches to his rejection of the entire Kantian edifice of his earlier work. On the second question, I argue that the explanation for the shift has a conceptual dimension as well as a historico‐biographical dimension. That is, I argue that Kelsen's rejection of the principle of non‐contradiction vis‐à‐vis legal norms reaches to the Kantian edifice in that the principle was presupposed in Kelsen's earlier work and appears, expressis verbis, in his 'Kantian filter'. And I argue that certain historico‐biographical data are germane, including, quite possibly, the earlier revolution in Kelsen's thought, that of 1939–40.
The full text is not available from SSRN.

September 13, 2017

September 12, 2017

If You Like Sherlock Holmes, You Might Also Like...

From the blog Interesting Literature, a list of ten literary detectives for those who like Sherlock Holmes. It includes such clever sleuths as C. L. Pirkis's Loveday Brooke and R. Austin Freeman's Dr. Thorndyke. There's also E. W. Hornung's Dr. John Dollar. Hornung was Sir Arthur Conan Doyle's nephew, and was the creator of the inimitable "gentleman-thief" Raffles, played on screen by Ronald Colman. 

You may also appreciate these rivals of Sherlock Holmes, collected in several volumes by various editors.

The Rivals of Sherlock Holmes (Hugh Greene, ed., Penguin Books, 1972). DVD 2009.
The Further Rivals of Sherlock Holmes (Hugh Greene, ed., Penguin Books, 1974). DVD 2010.
Cosmopolitan Crimes: Foreign Rivals of Sherlock Holmes (Hugh Greene, ed., Penguin Books, 1972)
The American Rivals of Sherlock Holmes (Hugh Greene, ed., Pantheon Books, 1976).
The Rivals of Sherlock Holmes (Alan K. Russell, ed., Castle Books, 1978).
The Rivals of Sherlock Holmes (Alan K. Russell, ed., Castle Books, 1979).

UK's Channel 4 Will Begin Airing Chilean Crime Series "Fugitives" Later This Month @CriFiLover

The UK's Channel 4 is making history: it will begin broadcasting Chile's crime series Fugitives (Prófugos) on September 20th. The series, an HBO Latino production which began in 2011, is the first Chilean import for the UK.

More here from the excellent blog Crime Fiction Lover.

Peters on The Rise and Decline of the International Rule of Law and the Job of Scholars @MPILheidelberg

Anne Peters, Max Planck Institute for Comparative Public Law and International Law, is publishing The Rise and Decline of the International Rule of Law and the Job of Scholars in The International Rule of Law: Rise or Decline (Heike Krieger, George Nolte, and Andreas Zimmermann, eds.). Here is the abstract.
International law feeds on preconditions which it cannot guarantee itself. International scholarship, too, must come to grips with pre-conditions and existing parameters over which it has no control itself. But such scholarship must not ‘succumb’ to these factual and ideational realities by adapting its methods and findings to any given political, social, and economic climate. It is the job of international legal scholars to produce ideas in a spirit of realist utopianism (John Rawls). Depending on the existing parameters, these ideas are apt to shape attitudes and actions, or not. Such scholarship also needs to distance itself from its object of study in order not to lose its capacity to criticise the law and the practice. How far exactly scholarly writing should transcend or keep aloof from the prevailing political climate and from concerns of feasibility depends on the research questions under discussion and is a matter of judgment. The style of scholarship suggested here is illustrated by the work of three eminent scholars whose careers continued through different political eras more or less favourable to the international rule of law: Hersch Lauterpacht, Antonio Cassese, and Josef Kunz.
Download the essay from SSRN at the link.

A Book To Accompany the Exhibit: Law as Art, Law as LiIterature,Law as Justice

Via Thom Giddens, St. Mary's University, news of this exhibition at neue Gesellschaft für bildende Kunst (nGbK) in Berlin:

Curator Agieszka Kilian is working on the book describing this very interesting exhibit which ran from March to May of this year.

In the Throes of Art and Law: Dreams & Dramas: Law as Literature. Running 10 March through 7 May 2017.

From the website, here's a description of the exhibit:

The exhibition is proposing a different reading of the legal text, reading against the grain of pre-conceived structures in order to re-chart the system of our relations with ourselves and with various communities; both territorial communities as well as those constructed ad hoc, based not on blood or territorial ties, but on shared values and beliefs. The exhibition raises the question of how the law literally produces us: both as individuals and as citizens, establishing a framework of our presence in public space as well – its legality or illegality. It also questions the different meanings of a ‘civil body’, a ‘legal thing’, or a ‘legal slave’. How do legal rituals and narratives influence and shape our existence?
The law organises our reality in its entirety. It uses physical states and experiences (such as ‘poverty’ or ‘nature’) to create concrete concepts, endowing them with autonomous meanings. The law, as it was, distils fractions of reality to serve its purpose, and then assembles the elements, as if on a factory line, into a concrete picture, a parallel world. The legal text at once describes and produces reality, operating as an assembler of social relations. The ambivalent nature – of simultaneous description and production – offers an inducement to pose the question: What are the ways in which we can use the double nature of the law, regaining our agency, to re-describe and re-create the social order?
Narratives techniques assemble social existence according to values and beliefs of those who wield the power of naming (writing the legal text), but also, importantly, the power of executing. In ʺThe Making of Lawʺ (2010) Bruno Latour presents law as a fabric which is irreducible to an editorial unit; emerging from the law, but not limited to it: “Law does not reside in the law, but equally in the context of application which they have seen with their own eyes and with which they have sometimes violently collide.”
The exhibition takes up Latour’s intuition of locating law in everyday practice in an aim to present the law as a construction that is not abstracted from existential order
- one that is larger than ‘the letter of the law’, but inextricably related to its execution, practices, habits of reading and a choreography of navigating the text and legal interpretation
– law as justice and justice as law.

More here.

September 11, 2017

Katyal on Technoheritage @SoniaKatyal @BerkeleyLawBCLT

Sonia Katyal, University of California, Berkeley, School of Law, is publishing Technoheritage in the California Law Review. Here is the abstract.
This Article explores the legal revolution that is swiftly unfolding regarding the relationship between technology, user interactivity, and cultural institutions, both inside and outside of the law. At the same time that cultural properties are facing destruction from war and environmental change, we are also living in an age of unprecedented interactivity and reproduction — everywhere, museums are offering their collections for open access, 3-D printing, and new projects involving virtual and augmented reality. With the advent of other sophisticated forms of digital technology, the preservation and replication of antiquities have never been easier. Today’s archaeological moment demonstrates both the possibilities and limitations behind “technoheritage” — the marriage of technology and cultural heritage. Toward that end, this Article argues that, in order to understand the relationship between technology and cultural heritage, it might be helpful to study the theoretical dimensions behind interactivity itself. Just as technology has the power to preserve and protect ancient artifacts, it also invites a dizzying array of legal conflicts over their digitization and replication, particularly with regards to the intersection of copyright law with cultural identity. Unpacking this further, this Article offers a tripartite taxonomy of interactivity: the first, described as extractive (drawing upon the accumulation and selection of data); the second, immersive (drawing upon new forms of user participation through virtual and augmented reality); and the third, derivative (drawing upon new possibilities of user creation). Normatively, I argue that these models of interactivity provide us with an important framework with which to examine the importance of copyright protection for cultural heritage. In the concluding section, I suggest a potential way of rethinking the museum by drawing on the logic and legal protection extended to databases and archives in an age of unprecedented user interactivity.
Download the article from SSRN at the link.

CFP: Law and Society Annual Meeting, Toronto, Canada, June 7-10, 2018 @law_soc

From the mailbox:  Call for Papers from the Law and Society Association for its 2018 Annual Meeting

June 7 - 10, 2018 in Toronto, Canada


For thousands of years the place where the City of Toronto is located has been a crossroad where many peoples have met and had fruitful exchanges. According to some Indigenous knowledge keepers, the word “Toronto” comes from the Wendat term for a fishing weir constructed of sticks standing in the water. Lake and river fishing has been an important activity for the area’s many Indigenous peoples, including Huron-Wendat, Haudenosaunee, Mississauga and Chippewa.

The Indigenous knowledge frameworks and laws of the peoples of this area encourage a multilayered understanding of an item such as a fishing weir in terms of its natural, sacred, practical and social meanings. The area continues to be home to many Indigenous people from all over Canada and beyond, but Toronto has also been shaped by immigration flows from many parts of the world, with about half of its current residents being born outside of Canada. The Law and Society Association and the Canadian Law and Society Association hope that our joint meeting in Toronto will be creative and fruitful, in keeping with the traditional use of this land as a gathering place, and that visitors to the area will take the opportunity to make new connections not only with one another but also with diverse local communities.

This year’s Program Committee is Chair is Mariana Valverde, University of Toronto. We invite the submission of Individual Papers and/or Session proposals. Papers and panels need not be centered on the conference theme. Proposals on any law and society topic are welcome.

You will find the Call at

In the Call you will find more information about the theme, submission instructions, and more. We will be adding more meeting information as time progresses. The deadline for proposal submission is October 18, 2017.

Registration will begin in early February, 2018. If you have questions, please contact us at We hope you will join in what promises to be a full and exciting program in Toronto!

September 10, 2017

"The Greatest American Hero" Reboot Features a Woman as Hero: So Did the Last Episode of the Original Series

ABC is rebooting the show "The Greatest American Hero" with a woman in the lead as the character with the task of righting wrongs with the help of an alien-provided magic suit. There seems to be a lot of surprise that the superhero character would be female, as if the idea was new. But back in 1986 the original actors filmed a pilot, called "The Greatest American Heroine," which became an episode of the series (season 3, episode 14).   In it, Ralph Hinckley, the original hero, selects a woman to carry on the mission after the public learns his secret identity. That was thirty years ago. At that time, it seems to have been a relatively novel idea. Today we may see it happen, although the idea that the main character will be as clueless as Mr. Hinckley was in terms of how to use the amazing weapon the aliens have given her could be problemactic.

She also seems to have no profession; the original suit-wearer was a high school history teacher (and remember that his girlfriend was an attorney, suggesting that she saw something in him pre-suit). Maybe the lack of career is supposed to signal that the new suit-wearer can pass unnoticed in today's society, or to give her the ability to save the world without having to take a day off from work. It's a little disturbing to think, though, that intelligent aliens would entrust such a mission to someone who has little sense of professional direction. I understand the original show was a satire, and the reboot probably will be, also. I wonder how the viewers will receive the new character, because we're still hearing (or hearing once again) that women just aren't as good as men at many things.

BTW, Fox tried a reboot in 2015. It didn't take off.

September 7, 2017

James Grippando Wins Harper Lee Prize For Legal Fiction @James_Grippando

James Grippando, lawyer (Boies, Schiller, Flexner) and novelist (HarperCollins), has won the seventh annual Harper Lee Prize for Legal Fiction. The winning title? Gone Again, released last year, the latest in a series about Miami criminal law attorney Jack Swyteck.

More about the University of Florida Law alum from the ABA Journal here and the school's website here.

Gould on Punishing Violent Thoughts: Islamic Dissent and Thoreauvian Disobedience in Post 9/11 America @rrgould

Rebecca Ruth Gould, Unviersity of Birmingham; Harvard University Davis Center for Russian and Eurasian Studies, is publishing Punishing Violent Thoughts: Islamic Dissent and Thoreauvian Disobedience in Post-9/11 America in the Journal of American Studies. Here is the abstract.
American Muslims increasingly negotiate their relationship to a government that is suspicious of Islam, yet which recognizes them as rights-bearing citizens, within a culture they claim as their own. To better understand how the post-9/11 state is reshaping American Islam, I examine the case of Muslim American dissident Tarek Mehanna, sentenced to seventeen years in prison in 2012 for providing material support for terrorism. I read Mehanna’s verbal and visual depictions of his persecution in relation to the American dissidents Mehanna claims as intellectual predecessors, above all Henry David Thoreau and John Brown, while situating this dissent within a long history of American activism.
Download the article from SSRN at the link.

Sherwin on Vico's Providence Today @RKSherwin

Richard K. Sherwin, New York Law School, has published Vico's Providence Today. Here is the abstract.
According to Vico, it is piety, the way divine providence breaks into fractured time, that teaches the ideal patterns of history. Today, we stand in need of a post-secular, metaphysical framework for this Vichian insight in order to counter the nihilist impulse that has swept through late modernity. Vico had already identified nihilism as the dark secret of Cartesianism. Indeed, it is the historical vicissitudes of that dark secret for which he presciently sought to prepare us. Piety finds its roots in something beyond the subject, beyond the will. It is that disruptive, ineffable force that resists the impulse toward totality (the will to power) in whatever historic form it may take: from the totalizing mechanics of Hobbes’ Leviathan state to the totalizing algorithmic programming that covertly constructs and drives today’s digital social media and the so-called ‘Internet of Experience.’
Download the article from SSRN at the link.

Hoopes on Reclaiming the Primary Significance Test: Dictionaries, Corpus Linguistics, and Trademark Genericide

Neal Hoopes (Independent) has published Reclaiming the Primary Significance Test: Dictionaries, Corpus Linguistics, and Trademark Genericide. Here is the abstract.
Companies spend billions to promote their brand. But with increased trademark recognition comes the possibility of losing exclusive rights to use that trademark, a process called genericide. Courts have often turned to linguistic evidence, such as dictionaries and media usage, to determine whether a trademark has become generic. These courts merely suggest that linguistic tools reflect a trademark’s meaning. Yet these tools are not the objective indicators that courts have assumed. This Paper discusses why using dictionaries and media usage to prove genericide is a mistake and then turns to evaluating another tool, corpus linguistics. Corpus linguistics, unlike other linguistic tools, may prove beneficial for companies seeking to protect their trademarks. Ultimately, however, linguistic tools — including dictionaries, media usage, and corpus linguistics — cannot prove genericism because linguistic data may, at best, prove a term’s majority usage. But the Lanham Act requires a showing of primary significance. The Paper contends that courts should maintain majority usage and primary significance as distinct concepts and, in this way, should reclaim the primary significance test.
Download the article from SSRN at the link.

September 2, 2017

Zucca and Judge on Measure For Measure on Trial: A Shakespearean Mock Trial @Lzucca

Lorenzo Zucca, Professor of Law and Philosophy, King's College, London, and Igor Judge, Lord Judge, Visiting Professor, King's College, London, have published Measure for Measure on Trial: A Shakespearean Mock Trial, at 2017 Journal of Dispute Settlement 1 (PDF paging). Here is the abstract.

Mock trials have been a privileged way to teach law for many years. They allow to convey to the students many subtleties in the workings of the law in a way that lecturing probably never can. Among many other things, it helps pinpoint the values in tension in the real life of the law, the drama of a court room, the imaginaries at play, the social pressure and other forces bearing down on the law’s different actors. Shakespeare’s work epitomises this passion, these waves that curl the flat, cool covers of the law books.

Download the article at the link (from the publisher's website).  

September 1, 2017

Daly on Rousseau's Constitutionalism: New From Hart Publishing @hartpublishing @eoinmauricedaly

Eoin Daly, Lecturer in Law, National University of Ireland, has published Rousseau's Constitutionalism (Hart Publishing, 2017). Here is a description of the book's contents.
Despite Rousseau's legacy to political thought, his contribution as a constitutional theorist is underexplored. Drawing on his constitutional designs for Corsica and Poland, this book argues that Rousseau's constitutionalism is defined chiefly by its socially directive character. His constitutional projects are not aimed, primarily, at coordinating and containing state power in the familiar liberal-democratic sense. Instead, they are aimed at fostering the social conditions in which a fuller sense of freedom – understood broadly as non-domination – can be realised across all social domains. And in turn, since Rousseau views domination as being deeply embedded in complex social practices, his constitutionalism is aimed at fostering a radical austerity – social, economic and cultural – as its foil. In locating Rousseau's constitutional projects within his social and political theory of servitude and domination, this book will challenge the predominant focus and orientation of contemporary republican theory. Leading republican thinkers have drawn on the historical republican canon to articulate a model of constitutionalism which is, on the whole, 'liberal' in focus and orientation. This book will argue that the more communitarian orientation of Rousseau's constitutionalism – that is, its socially-directive focus – stems from a sophisticated and compelling account of the sources of unfreedom in complex societies, sources which are ignored or downplayed by the neo-republican literature. Rousseau embraces a communitarian social politics as part of his constitutional project precisely because, pessimistically, he views domination as being deeply embedded in the social relations of the liberal order.

 Media of Rousseau's Constitutionalism