June 30, 2020

CFP: Proposed Special Issue: Law and Literature, Humor and the Law

Proposed Special Issue for Law and Literature (Cardozo Law School):

Humor and the Law

Humor in its various forms, from comedy and satire to stand-up and cartoons, is regularly at the centre of juridical debates and actual litigation: from defamation and blasphemy to copyright violations and incitement to hatred. Yet, due to its inherent ambiguity and frequent elusiveness, humor can make it particularly difficult to draw a clear line between lawful and unlawful expression. How exactly does the law regulate humor, and how does that change across different judicial systems or historical periods? How do certain forms and practices of humor respond, in different places and at different times, to the restrictions of the law? How might humor studies contribute to and illuminate the legal challenges posed by different forms of comic expression? How might humor, moreover, challenge the logics and procedures of law?

Although recent studies have stressed the benefits of collaboration between jurists and humor experts (Godioli 2020, Little 2019, Milner Davis and Roach Anleu 2018), the potential for interdisciplinary dialogue is still vastly unexplored. This special issue will investigate the intersection between humor and the law from various perspectives — we aim to promote diversity in terms of theoretical frameworks, historical and geographical contexts, judicial systems and legal issues addressed. We welcome full-length articles (approximately 8-10,000 words) which should consist of close readings of one specific example of an actual legal case concerning humor in any medium (including for instance literature, stand-up comedy, film, cartoons, or memes).

The special issue proposal has received preliminary interest from Law and Literature (Cardozo Law School). If you are interested in contributing, please send an email to humorandthelaw@gmail.com by 1 November 2020 including an abstract (ca. 250-500 words) and a short bio note (max. 200 words). The outcome of the selection process will be communicated within one month after the deadline. We are expecting completed contributions by Spring or Summer 2021.

Coronavirus note: The editorial team began planning this CFP before the outbreak of Covid-19 and thus under very different conditions and with very different expectations. As a result, we understand that many potential contributors might not be able to complete their articles by the proposed deadline. If, however, you are still interested in contributing, but perhaps along a revised timeline, you should be in contact with the editors (humorandthelaw@gmail.com); we are more than happy to offer flexibility to potential contributors.

Best wishes,
The organizing team:
Brigitte Adriaensen (Radboud University/Open University)
Andrew Bricker (Ghent University)
Alberto Godioli (University of Groningen)
Ted Laros (Open University)

Little, L. (2019). Guilty Pleasures: Comedy and Law in America. Oxford: Oxford University Press.
Milner Davis, J. and Roach Anleu, S. eds (2018). Judges, Judging and Humour. London: Palgrave Macmillan.

June 29, 2020

CFP: Special Issue: Posthuman Legalities: New Materialism and Law Beyond the Human

From Edward Elgar Publishing: CFP

Special Issue: 'Posthuman Legalities: New Materialism and Law Beyond the Human'
The Journal of Human Rights and the Environment (JHRE) warmly welcomes submissions for the upcoming Special Issue: 'Posthuman Legalities: New Materialism and Law Beyond the Human'. 
Contemporary pressures emerging from both climate change and the Covid-19 pandemic suggest the urgent need to move beyond the longstanding centrality to law of the human subject that acts upon ‘the world’ as object. Such juridical humanism is now clearly not only unsustainable and increasingly implausible, but profoundly dangerous to all life.

June 25, 2020

Patrick on Law and Evil: The Evolutionary Perspective (book review) @UCF

Carlton Patrick, University of Central Florida, has published Law and Evil: The Evolutionary Perspective, by Wojciech Zaluski at 3 Evolutionary Studies in Imaginative Culture 135 (2019) (book review). Here is the abstract.
How refreshing it is to see someone engage in a nose-to-tail approach to interdisciplinary work the way Wojceich ZaŁuski does in Law and Evil: The Evolutionary Perspective. In just 133 pages of text, including the Introduction and Epilogue, ZaŁuski successfully attempts to “reconstruct an evolutionary view of human nature and to examine through the prism of this view two legal-philosophical problems, viz. the problem of the (historical) evolution of law and the controversy between ius-naturalists (the adherents of natural law doctrine) and legal positivists.” This is a book that begins as a work of biology, morphs into legal history, and ends as philosophy, all the while using the insights of previous chapters to the lay the foundation for successive ones.
Download the review from SSRN at the link.

Shugerman on Removal by Judiciary and the Imaginary Unitary Executive @jedshug

Jed Handelsman Shugerman, Fordham Law School, has published The Decisions of 1789 Were Non-Unitary: Removal by Judiciary and the Imaginary Unitary Executive (Part II) as Fordham Law Legal Studies Research Paper No. 3597496. Here is the abstract.
Supporters of the unitary executive rely on “the Decision of 1789” to establish an originalist basis for presidential removal power at will. However, the first Congress’s legislative debates and a diary (missed by legal scholars) suggest strategic ambiguity and retreat on the constitutional questions, and the Treasury Act contradicted the unitary model. Here are seven overlooked moments from 1789 that dispel unitary assumptions: 1) The “decision” is premised on an ambiguous text and an indecisive unicameral legislative history. The switch from explicit power to a contingency clause was likely strategic ambiguity to get the bill passed in the Senate and to move forward on an urgent legislative agenda. House opponents called this move a retreat and questioned its integrity… 2) …and a Senator’s diary indicates the Senate sponsors, to win passage, denied the clause was important, disclaimed its constitutional meaning, and disavowed even the presidential power itself. A cryptic comment by a presidential House member hinted at this strategy. 3) Justices have erred in claiming that the first Congress decided officers served “at will.” Few members of Congress spoke in favor of presidential removal at pleasure in 1789. The first Congress gave such a low degree of protection to only two offices: marshals and deputy marshals. Meanwhile, in the Treasury debate, opponents of presidential removal power warned against presidential corruption and successfully deleted (without needing debate) a provision that the Treasury Secretary would “be removable at the pleasure of the President.” 4) A tale of two Roberts: two finance ministers, one English, one during the Articles of Confederation era, both scandalous. A reference by Madison during the Treasury debate provide context for independent checks, as opposed to a unitary hierarchy. 5) Judges and scholars have missed that Madison proposed that the Comptroller, similar to a judge, should have tenure “during good behavior.” Though Madison dropped this proposal, the debate reflected his more consistent support for congressional power and how little had been decided in the Foreign Affairs debate. 6) Most problematic for the unitary theory, the Treasury Act’s anti-corruption clause established removal by judges: Offenders “shall be deemed guilty of a high misdemeanor… and shall upon conviction be removed from Office.” The 1789 debates had focused on presidential corruption of finance, and this clause allowed relatively independent prosecutors and judges to check presidential power. Congress added similar judicial removal language to five other statutes between 1789 and 1791, and many more over the next 30 years. 7) These debates pilloried prerogative powers and discussed justiciability of for-cause removals in the English writ tradition, suggesting a larger role for Congress and the courts to investigate presidential power. For the powers cited by unitary theorists (the constitutional basis for presidential removal power, offices held “during pleasure”), the first Congress was, in fact, indecisive. On whether the president had exclusive removal power, the first Congress decisively answered no. If post-ratification history is relevant to constitutional meaning, the “Decision of 1789” presents more challenge than support for the unitary theory, with implications for Seila Law v. CFPB, independent agencies, independent prosecutors, the Trump subpoena cases, and justiciability.
Download the article from SSRN at the link. Part One is available here.

June 23, 2020

Post on How Taft Constructed the Epochal Opinion of Myers v. United States

Robert Post, Yale Law School, is publishing Tension in the Unitary Executive: How Taft Constructed the Epochal Opinion of Myers v. United States in the Journal of Supreme Court History (2020). Here is the abstract.
This article is excerpted from the forthcoming Volume X of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States, which covers the period 1921-1930 when William Howard Taft was Chief Justice. The article will be published in an upcoming issue of the Journal of Supreme Court History. The article offers for the first time a detailed account of the process by which William Howard Taft authored his pathbreaking opinion in Myers v. United States, the first Supreme Court decision ever to hold a statute of Congress unconstitutional because incompatible with Article II prerogatives of the President. The decision was six to three, featuring strong dissents by Brandeis, McReynolds, and Holmes. Using archival sources, the article discusses competing views within Taft’s majority coalition of six, as well as Taft’s own independent views about the question of the presidential power of removal. Analyzing the reasoning of Myers in detail, the article argues that the decision is neither an example of originalism, as Justice Antonin Scalia has claimed, nor is it compatible with contemporary understandings of the “unitary” executive.
Download the article from SSRN at the link.

Gouveia on Episopal Justice in a Time of Change: The Court of Portalegre, 1780-1835

Jaime Ricardo Gouveia, Universidade de Coimbra, has published Episcopal Justice in a Time of Change: The Court of Portalegre, 1780-1835 as Max Planck Institute for European Legal History Research Paper Series No. 2020-11. Here is the abstract.
This study examines the judicial activity of the Episcopal Court of Portalegre, based on a large number of cases, in the late eighteenth century and the first decades of the following century. It is a period of change, marked by a structural and tumultuous rupture of the paradigms of Roman Catholic Church authority, the power of bishops and the role of religion, triggered by Pombalism and established after the Portuguese Liberal Revolution of 1820. As the pastoral office was already strongly marked by the limitations imposed by secular power, it is particularly interesting to analyze the performance of this Portuguese Ecclesiastical Court in that historical context.
Download the article from SSRN at the link.

June 15, 2020

CFP: ASECS 2021 Annual Meeting @ASECSOffice

The American Society For Eighteenth-Century Studies announces its Call For Papers for its 2021 Annual Meeting, to be held in Toronto. Read the call here.

June 11, 2020

Rosen on The 1881 Trademark Act and the Supreme Court @zvisrosen

Zvi S. Rosen, George Washington University Law School, is publishing In the Shadow of the Trade-Mark Cases: The 1881 Trademark Act and the Supreme Court in Forgotten Comparative Intellectual Property Law (Edward Elgar, 2020). Here is the abstract.
In 1879, the US Supreme Court famously struck away federal trademark law in the TradeMark Cases, leading Congress to leap into action and pass a new trademark statute within two years. Much less famously, though, the same thing happened again 24 years later in a largely forgotten case, Warner v. Searle & Hereth, leading to the passage of the 1905 trademark law within two years. This is the story of how a commercial dispute between two early pharmaceutical companies led to the first American trademark law of the 20th Century.
Download the essay from SSRN at the link.

June 10, 2020

Call For Nominations: AALS Section on Women in Legal Education, 2021 RBG Lifetime Achievement Award

Call for Nominations for the AALS Section on Women in Legal Education

2021 Ruth Bader Ginsburg Lifetime Achievement Award

The AALS Section on Women in Legal Education is pleased to open nominations for its 2021 Ruth Bader Ginsburg Lifetime Achievement Award. In 2013, the inaugural award honored Justice Ruth Bader Ginsburg. Subsequent winners include Catharine A. MacKinnon (2014), Herma Hill Kay (2015), Marina Angel (2016), Martha Albertson Fineman (2017), Tamar Frankel (2018), Phoebe Haddon (2019), and Robin West (2020). All of these remarkable women were recognized for their outstanding impact and contributions to the Section on Women in Legal Education, the legal academy, and the legal profession.

The purpose of the Ruth Bader Ginsburg Lifetime Achievement Award is to honor an individual who has had a distinguished career of teaching, service, and scholarship for at least 20 years. The recipient should be someone who has impacted women, the legal community, the academy, and the issues that affect women through mentoring, writing, speaking, activism, and by providing opportunities to others.

The Section is now seeking nominations for this most prestigious award. Only individuals who are eligible for Section membership may make a nomination, and only individuals—not institutions, organizations, or law schools—are eligible for the award.  More than one person may nominate the same candidate; however, the number of nominations for any one nominee is not determinative of the winner.  As established by the Section’s Bylaws, the AALS Section on Women in Legal Education Executive Committee will select the award recipient, and the award will be presented at the 2021 AALS Annual Meeting. 

Nominations will only be accepted by filling out this electronic form on or before the August 30, 2020 deadline.  (Also available by entering the following in your browser:  https://www.surveymonkey.com/r/JY6Y9LW.)

Should you have any difficulties completing the survey, please contact Victoria Haneman at:  VictoriaHaneman@creighton.edu.


Aimonetti on Colonial Virginia: The Intellectual Incubator of Judicial Review @JustinAimonetti @UVALaw

Justin W. Aimonetti, University of Virginia School of Law, has published Colonial Virginia: The Intellectual Incubator of Judicial Review at 106 Virginia Law Review 765 (2020). Here is the abstract.
What is the historical origin of judicial review in the United States? Although scholars have acknowledged that British imperial “disallowance” of colonial law was an influential antecedent, the extant historical scholarship devoted to the mechanics of disallowance is sparse. This limited exploration is surprising. Not unlike modern judicial review, the guiding question imperial overseers considered when disallowing colonial legislation was whether it was ‘repugnant’ to the laws of England. In response, this Note’s first contribution is to explain the process by which the so-called repugnancy principle was enforced against inferior colonial law. Even fewer scholars have attempted to connect the ultimate repugnancy assessment to the historical context surrounding disallowed colonial laws. This Note’s second contribution is thus to augment existing literature by exploring colonial Virginia’s specific experience under imperial supervision. Among the scholars that have explored the connection between colonial disallowance and the origins of judicial review, some have documented the link between imperial legislative review of colonial legislation and James Madison’s proposed constitutional solution to the problem of unrestrained state legislatures in the aftermath of independence. What remains to be explored, however, is how Madison explicitly drew on the history of imperial review of colonial Virginia’s laws as he argued at the Constitutional Convention for a federal power to “negative” state laws. Accordingly, this Note’s third contribution is to reveal that the historical practice of imperial review in Madison’s native Virginia animated his proposed solution to check the unrestrained popular will of state legislators. Although his proposed solution was ultimately rejected at the Convention, that rejection was conditioned on the judiciary possessing the power of judicial review. By exposing this hidden link, this Note demonstrates that colonial Virginia rightly may be regarded as the intellectual incubator of judicial review.
Download the article from SSRN at the link.

June 8, 2020

Simon-Kerr on Unmasking Demeanor @UConnLaw

Julia Ann Simon-Kerr, University of Connecticut School of Law, has published Unmasking Demeanor. Here is the abstract.
Demeanor is seen as a critical tool for assessing credibility in U.S. courtrooms. From the Confrontation Clause to the Immigration and Nationality Act to the Federal Rules of Civil Procedure to the common law of credibility, the U.S. legal system gives priority and deference to assessing demeanor in the courtroom. Evidence law instructs that we must see a witness’s whole face in order to effectively “read” demeanor. Yet, a growing number of jurisdictions will require all participants in the courtroom to wear masks covering the nose, mouth and chin in order to prevent the spread of COVID-19. This essay canvasses the legal impediments to mask-wearing by witnesses. It argues that these legal obstacles are surmountable, and that this mask-wearing moment offers a unique opportunity to reassess the role of demeanor in credibility assessments. Focusing on demeanor forces witnesses to perform credibility, a performance that does not necessarily bring us closer to the truth.
Download the article from SSRN at the link.

June 7, 2020

Call For Applications: Visiting Fellows 2021, Institute for Interdisciplinary Legal Studies

Institute for Interdisciplinary Legal Studies – lucernaiuris
Call for Applications: Visiting Fellows 2021
The Institute for Interdisciplinary Legal Studies – lucernaiuris at the University of Lucerne invites applications for our Visiting Fellows Programme 2021.

The fellowship programme is set up to support junior scholars (PhD students and postdocs) who wish to undertake a short-term research stay at the institute. The scheme is open to all working broadly on interdisciplinary topics at the intersections between law, the humanities and the social sciences. Focusing on critical and theoretical approaches, the institute aims to bring together a diverse group of scholars who read and think widely across fields, contexts and disciplines.

We particularly welcome applications from those working on projects that connect with our own core interests. Currently, these include:
ž  Legal Futures and Futurity
  • Law and New Technologies
  • Law and the Life Sciences
  • Theories of Justice and Histories of the Judiciary
  • Law, Art and Politics

The deadline for submissions is Wednesday 30 September 2020. Further details on eligibility, application and evaluation procedures are available here.
For informal enquiries, please contact Dr. Steven Howe (steven.howe@unilu.ch)

June 3, 2020

Nielsen on Literary Form and Limited Liability: It-Narratives and the Context of Corporate Law in the British Public Sphere, 1860-1880

Jakob Gaardbo Nielsen has published Literary form and limited liability: it-narratives and the context of corporate law in the British public sphere, 1860–1880, in Context in Literary and Cultural Studies. Here is the abstract.
‘What philosopher can explain to me the nature of the causes of which I am the vile effect?’ Laurence Oliphant. ‘Autobiography of a Joint-Stock Company (Limited)’. 1876. Since the 2008 financial crisis, it has become common to imagine corporate and financial bodies as autonomous or even cognisant entities. The concept of ‘corporate personhood’, the idea that companies, as ‘artificial persons’, are, in fact, legal subjects separate from the humans who form them, underscores this metaphorical autonomy, even if it remains a somewhat controversial concept in corporate law. The legal definition of a company as a ‘corporate person’ is useful insofar as it safeguards individuals from personal liability and thus facilitates investment, but it also sits uneasily with ethical and legal concerns about corporate responsibility. As a legal concept, as well as a cultural metaphor, corporate personhood also mediates a fantasy of containment – a fantasy of a separate and autonomous place known as ‘the financial sector’ in which the business of trade takes place according to obscure rules and conducted by experts who are functionally if not ethically ‘in the know’. Even so, incorporation is a lot less controversial today than it used to be. In the late nineteenth century, when incorporation was deregulated and gradually became a common form of business organisation, the idea of a corporate person was still highly controversial and gave rise to an inflamed ethical and political discussion about corporate responsibility. The debate took place in several discourses but became particularly nuanced in fiction, where the abstractions of high finance could be interpreted, questioned, and concretised by the narrative and rhetorical devices of imaginative writing. In this article, I shall focus on the late Victorian period, when rapid financial development afforded new and controversial ways of making money in corporate enterprise. One of the most controversial developments, propagated by deregulatory legislation in the 1840s and 1850s, was the increased availability of company incorporation and the extension of ‘limited liability’ privileges to smaller and smaller private companies. Corporate personhood was a highly controversial topic (economically, politically and ethically) in the 1870s and sparked debates across the public sphere. In this context, narrative fiction, I shall argue, played a key part in negotiating the ethics of these new financial institutions. Literary discourse was able to shed light on the concrete influences of changing economic structures on social and interpersonal experience – to displace finance from its rhetorical obscurity and resituate it in a domain of cultural and aesthetic visibility. Literary devices such as anthro-pomorphism, narrative form, and prosopopoeia helped common readers understand how corporate finance worked, paradoxically enough by representing companies as fundamentally uncanny or contradictory entities. More specifically, I shall analyse the relationship between the new developments in corporate law and a contemporary literary text that built its internal structure directly on this logic of corporate organisation. In his short fictional essay from 1876, ‘Autobiography of a Joint Stock Company (Limited)’, Laurence Oliphant lets a joint stock company be the narrator of its own biography, thus giving narrative authority to an abstract, immaterial financial entity. This anthropomorphic perspective, typical of object tales or ‘it-narratives’, dramatises the issue of corporate ‘personhood’ in a highly specialised and direct way. Oliphant’s text is entangled, formally as well as contextually, in its historical moment and gives literary form to a discussion about incorporation and liability that was not possible in the financial press, in political economy, or even in novels – a form that engages formally with the economic context in question. In this article, I aim to demonstrate that Oliphant’s text offers a unique take on the public debate about joint stock companies in the 1870s. The formal nature of its intervention in an economic context puts it within something of a blind spot in the field of literary studies of economics and finance, which has been predominantly organised around studies of the realist novel.1 It draws on different generic structures – differently orientated connections between writer, text, audience and context – that are difficult to reconcile with either formalist or historicist methodologies and thus, I argue, calls for an analysis based on an extended concept of form. In the first section, I briefly introduce the field of literary studies of finance and argue for an expansion of its traditional empirical horizon to include, on a more consistent basis, financial it-narratives. In the second section, I briefly flesh out the specific aspects of late Victorian corporate law which relate to corporate personhood. In the third section, I analyse Oliphant’s text with an emphasis on the nature of its engagement with this financial context. In the fourth, fifth and concluding sixth section, I discuss these insights by reflecting historiographically on the use of the ‘context concept’ in the field and, referring to recent scholarly works on form, suggest a methodological reorientation towards the historicity of economic and aesthetic forms.

June 2, 2020

Conklin on The Extremes of Rap on Trial: An Analysis of the Movement to Ban Rap Lyrics as Evidence (Book Review) @AngeloState

Michael Conklin, Angelo State University, has published The Extremes of Rap on Trial: An Analysis of the Movement to Ban Rap Lyrics as Evidence, at 95 Indiana L. J. The Supplement 1 (2020). Here is the abstract.
This Article is a review of Rap on Trial: Race, Lyrics, and Guilt in America. The book largely focuses on the dangers of allowing rap lyrics to be presented as evidence in criminal trials. The authors posit that the fictitious and hyperbolic nature of rap lyrics are misrepresented by prosecutors as autobiographical confessions that document illegal activity and violent character traits of defendants. The authors compare rap to other musical genres and conclude that racism is the underlying cause for why the genres are treated differently in court. The authors also advocate for evidence nullification and argue for a complete ban on all rap-related evidence at trial. This Article assesses both the strengths and weaknesses of the evidence presented to support these claims. Furthermore, this Article discusses pragmatic issues such as how the author’s advocacy for their more extreme proposals may be counterproductive to enacting their more reasonable proposals.
Download the article from SSRN at the link.