July 25, 2020

Brostoff on The Encyclopedist Code: Ancien Droit Legal Encyclopedias and Their Verbatim Influence on the Louisiana Digest of 1808 @LSULawCenter

Seth Brostoff, Louisiana State University Law Center, is publishing The Encyclopedist Code: Ancien Droit Legal Encyclopedias and Their Verbatim Influence on the Louisiana Digest of 1808 in volume 13 of the Journal of Civil Law Studies. Here is the abstract.
This Article identifies nearly one hundred articles and provisions in Louisiana’s first civil code, the Digest of 1808, which were copied verbatim or almost verbatim (that is, literally or almost literally) from three French legal encyclopedias popular during the Ancien Régime: M. Lerasle’s Encyclopédie méthodique: Jurisprudence (8 vols., 1782-89), Jean-Baptiste Denisart’s Collection de décisions nouvelles (1st ed., 6 vols., 1754), and Joseph-Nicolas Guyot’s Répertoire de jurisprudence (2d ed., 17 vols., 1784-85). As the Appendix indicates, verbatim and almost verbatim extracts from Lerasle, Denisart, and Guyot constitute at least 4-5% of the Digest’s source material. This Article therefore serves as a supplement (and partial corrective) to Rodolfo Batiza’s 1971 and 1974 studies of the Digest’s “actual sources”. The present study argues that the Digest’s primary redactor, Louis Moreau Lislet, borrowed language from French legal encyclopedia entries largely for pedagogical purposes, including introducing into Louisiana’s new civil code civilian definitions and other material that would be useful for lawyers and judges trained in the common law. As a result, Louisiana’s first civil code possesses a didactic quality that is absent from its Napoleonic prototype. Equally important, this study suggests that earlier scholars’ assumptions that the Digest’s source material reflects Louisiana’s mixed Spanish-French legal history should be revisited: while discovery of a significant presence of French legal encyclopedic sources certainly reveals the drafter’s preference for, and familiarity with, ancien droit legal literature, it further undermines previous assumptions about the widespread indirect influence of Roman and Spanish-Castilian sources.
Download the article from SSRN at the link.

Heyman on Reason and Conviction: Natural Rights, Natural Religion, and the Origins of the Free Exercise Clause @ChicagoKentLaw

Steven J. Heyman, Chicago-Kent College of Law, Illinois-Institute of Technology, is publishing Reason and Conviction: Natural Rights, Natural Religion, and the Origins of the Free Exercise Clause in volume 23 of the University of Pennsylvania Journal of Constitutional Law.
One of the most intense debates in contemporary America involves conflicts between religious liberty and other key values like civil rights. To shed light on such problems, courts and scholars often look to the historical background of the Free Exercise Clause of the First Amendment. But this inquiry turns out to be no less controversial. In recent years, a growing number of scholars has challenged the traditional account that focuses on the roles of Thomas Jefferson and James Madison in the movement to protect religious liberty in late eighteenth-century America. These scholars emphasize that most of the political energy behind the movement came from Evangelical Christians. On this revisionist account, we should not understand the Free Exercise Clause and corresponding state provisions in terms of the Enlightenment views of Jefferson and Madison, which these scholars characterize as secular, rationalist, and skeptical – if not hostile – toward religion. Instead, those protections were intended to promote religion and especially Christianity. In this Article, I offer a different understanding of the intellectual foundations of the Free Exercise Clause. The most basic view that supported religious liberty was neither secular rationalism nor Christian Evangelicalism but what contemporaries called natural religion. This view held that human beings were capable of using reason to discern the basic principles of religion, including the duties they owed to God and one another. Because religion was founded on reason, individuals had an inalienable natural right to develop their own beliefs and to worship in accord with them. At the same time, that right was limited by the law of nature, which required people to respect the rights of others. In this way, the concept of natural religion established both the foundations and the limits of religious liberty. This view enabled people with different religious and philosophical perspectives to find common ground. It provided the basis for a political coalition between Evangelicals, rationalist Christians, and Enlightenment liberals that secured the adoption of state and federal constitutional guarantees for religious freedom. The Article begins by demonstrating that natural religion and its associated ideas of natural law and natural rights were central to the intellectual world of eighteenth-century Americans. Those ideas played a vital part in many areas of thought, including political and moral philosophy, natural jurisprudence, English law, Christian and Deist theology, and even Newtonian natural science – intellectual strands that came together in the Radical Whig ideology that animated the American Revolution. Next, I explain how those ideas can enhance our understanding of the religious liberty provisions of the first state declarations of rights; the political controversy that culminated in the passage of Jefferson’s Bill for Establishing Religious Freedom in Virginia; and the debates surrounding the adoption of the Federal Constitution and the Free Exercise Clause itself. Finally, I explore the founders’ views on the problem of religious exemptions from civil laws, and discuss the implications of this history for our current debates over civil rights and religious liberty – a subject that the Supreme Court recently grappled with in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, and that it has agreed to revisit next Term in Fulton v. City of Philadelphia.
Download the article from SSRN at the link.

July 24, 2020

Rosenblum on The Antifascist Roots of Presidential Administration @narosenblum @NYULaw

Noah A. Rosenblum, New York University School of Law; Columbia University Department of History, has published The Antifascist Roots of Presidential Administration. Here is the abstract.
We live, it is said, in an age of presidential administration. This Article uncovers the intellectual foundations of presidential control of the administrative state, and, on the basis of original archival research and new contextualization, grounds its legitimacy in the fight against fascism. It shows how the architects of presidential administration reconciled a strong executive with democratic norms by embracing separation of powers with the aim of making democracy responsible and antifascist. These previously overlooked developments have important consequences for contemporary debates about executive power in general and the role of the president in administration in particular. The Article shows that presidential administration was not a haphazard occurrence, but the culmination of a longstanding project to make modern democracy efficacious and accountable. It traces the roots of the office of the president back through the executive reorganization acts of the New Deal to a world of Progressive Era executive-centered reform thought. It then shows how the New Deal reformers on the President’s Committee on Administrative Management drew from and adapted this Progressive Era tradition. At the heart of this story is a stunning, if partial, reversal: where Progressive Era reformers rejected formal constitutionalism in general and the principle of separation of powers in particular, New Deal reformers embraced them. This consequential shift was closely connected to the need to distinguish and protect emergent American presidential-ism from fascism. Recovering this forgotten origin story has significant normative consequences. It establishes the fundamental importance of internal separation of powers and other antifascist adaptations of the modern administrative state. The Article thus raises a historically-grounded challenge to those who maintain that direct presidential control of administration is the only constitutionally or normatively desirable public law arrangement. It also proposes an antifascist litmus test that any adequate theory of Article II should have to meet. Anti-fascism, the Article shows, was the condition on which the institutions of the modern, empowered American presidency were actually imagined. Fidelity demands we grapple with that commitment today.
Download the article from SSRN at the link.

July 23, 2020

Guerra-Pujol, Champnella, Mayo, Travers, and Vitulli on Teaching Tiger King @lawscholar

F. E. Guerra-Pujol, Christiana Champnella, Benjamin Mayo, Morgan Travers, and Antonella Vitulli, all of the University of Central Florida, have published Teaching Tiger King. Here is the abstract.
When our home institution moved all instruction online in response to the global pandemic, we began redesigning our business law survey course from scratch. Specifically, we decided to use the popular docuseries Tiger King: Murder, Mayhem, and Madness to explore the legal and ethical environments of business with our undergraduate students. We deliberately chose this surprise-hit TV show in order to make our online course as relevant, timely, and engaging as possible. The remainder of the paper will describe the contents of each module of the course, explore their relation to Tiger King, and explain the logic of our design choices.
Download the article from SSRN at the link.

Risinger on Female Law Librarians as Pioneer Women Law Professors @SetonHallLaw

D. Michael Risinger, Seton Hall University School of Law, has published Female Law Librarians as Pioneer Women Law Professors: A (Belated) Response to Dean Kay, with Some Suggested Additions to Her Canonical List. Here is the abstract.
The late Herma Hill Kay was the preeminent cataloguer of the pioneer women law professors of the modern era, that is, those who taught after the advent of formalized quality recognition of law schools, either through membership in the Association of American Law Schools (which began in 1900) or through American Bar Association accreditation (which began in 1923). Dean Kay excluded from her list female law librarians who held titles of ordinary faculty professorial rank, apparently because, form her point of view, they were not recognized as “full-fledged” faculty members. In my view this was a questionable omission. The very fact that they were granted professorial rank, at a time when such status was rare for law librarians and even rarer for female law librarians, cuts strongly in favor of adding them to any list of pioneer women law faculty, and to that end the article identifies those librarians who carried professorial rank at ABA/AALS law schools from 1923 through 1959 for inclusion on the list of pioneer woman law professors. But first, the article address a broader methodological point concerning Dean Kay’s list. Dean Kay sought to include in her list of female pioneer law professors only those who would have been fully recognized as members of the legal academy, even by the dominant males of the academy. Under this stringent standard, she counted only female faculty members at schools that were both ABA-accredited and admitted to membership in the Association of American Law Schools (AALS). I have no quibble with a restrictive approach, directed as it is to an important question of the status of women in the legal academy. However, accepting Dean Kay’s time frame, which is anchored to the beginning of ABA accreditation in 1923, I believe it was a mistake to exclude female full-time faculty with professorial rank at ABA-accredited law schools which were not members of the AALS. There were not many of these—the article only identifies three. But these three should be on any list of pioneer woman law professors.
Download the article from SSRN at the link.

July 19, 2020

Blake on A Positivist Baseball-Centric Critique of Originalism

William Blake, University of Maryland Baltimore County (UMBC), Department of Political Science, has published A Positivist, Baseball-Centric Critique of Originalism. Here is the abstract.
Some scholars have argued that respect for the Constitution compels judges to adopt originalism. This paper evaluates the claim of “compelled originalism” by comparing the language of the baseball rulebook to that of the U.S. and other constitutions. First, I describe how different rules of our national pastime align with originalism, while others invite umpires to use a living Constitution approach. I then leverage H.LA. Hart’s philosophy of legal positivism to evaluate baseball and constitutional rules. Hart claims public officials must accept the most fundamental rules of their legal system, which would include any guidance about how to interpret the Constitution. Because compelled originalism is rooted in respect for the Constitution’s legitimacy and supremacy, one would assume the text would instruct judges to be originalists. Of course, the Constitution says no such thing. By contrast, the baseball rulebook sometimes provides specific instructions to umpires about how to adjudicate certain rule violations. I conclude by demonstrating how originalists have managed to turn the debate over constitutional legitimacy on its head. If the goal of originalism is to prevent judges from reading provisions into the Constitution, originalists must take seriously that no requirement to use original public meaning exists in the constitutional text.
Download the article from SSRN at the link.

July 18, 2020

Wilf on What We Talk About When We Talk About Fictional Characters (and Copyright) @UConnLaw

Steven Wilf, University of Connecticut School of Law, is publishing What We Talk About When We Talk About Fictional Characters (and Copyright) in volume 7 of Critical Analysis of Law (2020). Here is the abstract.
What do pictures want? Echoing the famous question posed by art historian W.J.T. Mitchell, this article interrogates that query within the skein of copyright law. The creation of a fictional character means seeing a possibly singular, inert image as having a past and a future, a panoply of emotional responses and, significantly, desires. Fictional characters are not copyrightable per se. Rather, protection stems from expression of those characters in copyrightable works. To determine whether fictional characters have reached the threshold of complexity worthy of copyright, courts inquire how well a character has been delineated. For nearly a century, copyright has relied upon traditional round character literary analysis which looks at a character’s distinguishable features from the audience’s point of view. Recently, flat protagonist criticism examines whether the character serves as a proper vehicle for the author’s story. This article takes another approach—asking what the image is trying to tell us about its own absences, needs, and emotional lacunae. Beyond establishing protection, we need to query what protagonists are unworthy of copyright. I argue that stereotypes should be held to stricter scrutiny as creating insufficiently desiring characters.
Download the article from SSRN at the link.

July 16, 2020

Kuersten on The Privacy Effect: A Third Amendment Historiography @KuerstenAndreas

Andreas Kuersten, Georgetown University, Center for Clinical Bioethics, has published The Privacy Effect: A Third Amendment Historiography. Here is the abstract.
This piece tracks early appreciations of privacy, scholarship addressing and interpreting the Third Amendment, and the effect on interpretations of the Third Amendment of twentieth-century court treatments of the Third Amendment linking it to the constitutional right to privacy.
Download the article from SSRN at the link.

July 15, 2020

Kathleen Kim and Yxta Maya Murray, Advice & Consent: A Play in One Act (2019) @murrayyxta

Kathleen Kim, and Yxta Maya Murray, both of the Loyola (Los Angeles) Law School, have published Advice & Consent: A Play in One Act as Loyola Law School, Los Angeles Legal Studies Research Paper No. 2020-19. Here is the abstract.
On September 27, 2018, the Senate Judiciary Committee held hearings concerning Dr. Christine Blasey Ford’s allegations that then-Supreme Court Justice nominee Judge Brett Kavanaugh had sexually assaulted her in the mid-1980s. Advice and Consent is a play by award-winning writer and law professor Yxta Maya Murray, formed of interviews, found text, and transcripts, re-arranged, selected, and edited for poetic and provocative effect. Law professor Kathleen Kim authored the Introduction and composed the play's Musical Score. The drama is designed as a thought experiment about power, pathos, tragedy, politics, gender, race, and truth. Professors Murray and Kim have presented and performed Advice and Consent in various academic and art forums.
Download the play from SSRN at the link.

July 13, 2020

Acevedo on Crime Fantasies

John Acevedo, University of Alabama Law School, is publishing Crime Fantasies, in volume 46 of the American Journal of Criminal Law (2019). Here is the abstract.
Throughout American history the public has been gripped by fantasies of criminal activity. These crime fantasies manifest in two distinct but related typologies: witch-hunts and crime panics. On the one hand, witch-hunts target individuals based on their beliefs and are exemplified by the two Red Scares of the early and mid-twentieth century and the persecution of the Quakers in seventeenth century Massachusetts Bay. These are fundamentally distinct from crime panics, which target activity that was already classified as criminal but do so in a way that exacerbate deep procedural deficiencies in the criminal justice system. Crime panics are exemplified by the Salem witchcraft trials and the “Satanic Panic” of the 1980s and 1990s. President Trump’s relentless focus on undocumented immigration can be seen as a partially successful attempt to create a crime panic, while, perhaps surprisingly, the investigation by Robert Mueller is neither a witch-hunt nor a crime panic. By bringing ongoing criminal law issues into conversation with legal history scholarship, this article clarifies our understanding of the relationship between politics and large-scale criminal investigations and highlights areas for future reform.
Download the article from SSRN at the link.