Lawyers and historians often quarrel about how to use history in constitutional interpretation. Although originalists are often involved in these disputes today, the disagreements predate the rise of conservative originalism. Lawyers attempt to escape the criticism of historians through two standard stories that explain the differences between what lawyers and historians do. According to the first story, lawyers employ specialized skills of legal exegesis that historians lack. According to the second, lawyers require a usable past that historians will not provide. These stories paint a false picture of how historical work is relevant to constitutional argument. And by emphasizing lawyers’ professional differences from historians, they disguise disagreements within the class of lawyers and legal advocates about how to use (and how not to use) history. When lawyers try to stiff-arm professional historians, often they are actually engaged in long-running disputes with other lawyers who disagree with their interpretive theories, their methods, and their conclusions. To explain how lawyers and historians actually join issue, this article uses a familiar idea in constitutional theory—the modalities of constitutional argument. With respect to most of the modalities, historians are as well-equipped as lawyers. Indeed, many disputes between lawyers and historians do not concern the distinctive skills of lawyers at all, but rather controversial theories of interpretation that many lawyers do not accept either. The more that lawyers try to assert the methodological autonomy of law from history, the more they will fail, ironically, because of law's distinctively adversarial culture. In order to win arguments, lawyers will search for ever new historical sources and approaches, and they will insist on bringing historians back in to undercut the claims of their opponents. Similarly, the claim that lawyers need a usable past fails because it employs history for too limited a purpose and treats too much of history as unusable. Rather, the best way for lawyers to obtain a usable past is to recognize the many modalities of historical argument, and the many different ways to use history in legal argument.Download the article from SSRN at the link.
October 30, 2020
October 22, 2020
The UCLA School of Law is accepting applications for a FRONTLINE Fellow for the Documentary Film Legal Clinic.
The Fellow will support the Clinic’s activities and supervise the work of the student-clinicians. This is a full-time position for a two-year term, and it is benefits eligible. The expected start date is flexible but anticipated to be late 2020. To ensure full consideration, applications should be received by 11/21/20 but will be considered thereafter until the position is filled.
More information about the posting is attached, and the application is available here. You are encouraged to share the announcement widely.
UCLA School of Law
DOCUMENTARY FILM LEGAL CLINIC
UCLA School of Law is seeking a highly energetic and motivated individual with a significant interest in entertainment, media and intellectual property law to serve as the FRONTLINE Fellow for the Documentary Film Legal Clinic (Clinic) at the UCLA School of Law.
The FRONTLINE Fellow will work under the supervision of the Director (“Director”) of the Clinic, Dale Cohen, who is also Special Counsel to FRONTLINE, and collaborate closely with the Associate Director of the Clinic, Daniel Mayeda, and other administrators and faculty to develop clinical, experiential, and pro bono opportunities that ensure students receive high-quality educational experiences. The FRONTLINE Fellow will also take on substantial responsibility for the development and operation of a documentary filmmaker education program – tentatively titled “What Doc Filmmakers Should Know About the Law”. We anticipate this program will be offered will offered at documentary film festivals and other venues beginning in the Spring 2021 semester.
The Clinic has achieved notable success in its first few years. It has established partnerships with prominent film organizations, including the Sundance Institute, the International Documentary Association (“IDA”) and FilmIndependent (“FI”), each of which regularly refer filmmakers and grantees to the Clinic for legal support. Students coming out of the Clinic have secured coveted positions at several of the best media/entertainment law firms in the country and applications for the Clinic far exceed the number of available slots. Application from documentarians have increased with each successive semester and the Clinic’s clients have achieved notable success, appearing at prestigious festivals, including the Sundance and South by Southwest film festivals, and airing on prestige networks, including HBO and PBS. The Clinic has also worked closely with filmmakers and personnel responsible for producing films for the award-winning PBS series FRONTLINE.
benefits from the many advantages offered by UCLA’s School of Law. Through the Ziffren Institute for Media,
Entertainment, Technology, and Sports Law and other programs, UCLA offers one
of the nation’s most comprehensive and innovative approaches to the study of
entertainment, media, and intellectual property law. UCLA Law is home to many
leading scholars, alums and practitioners in these subjects and our programs,
location and faculty therefore draw a student body with a strong interest in
media, entertainment and intellectual property. The FRONTLINE Fellow will
have the opportunity to join other leaders in these fields on the UCLA campus
here in Los Angeles.
Candidates must have a J.D. from an ABA-accredited law school, plus admission to the California Bar or willingness to sit for the California Bar. Additional work experience, particularly in relevant areas of the law, the media industry or a judicial clerkship is desirable, but not required.
The successful candidate should demonstrate strong verbal and interpersonal communication skills, as well as the ability to communicate effectively in writing. The successful candidate should also demonstrate the ability to establish and maintain effective working relationships within the law school and university as well as with external partners. In addition, the Fellow should possess strong time management, organizational, planning skills and a commitment to educating our students and the documentary film community.
Confidential review of applications, nominations and expressions of interest will begin immediately and continue until an appointment is made. To ensure full consideration, applications should be received by 11/21/20 but will be considered thereafter until the position is filled. Please apply online at https://hr.mycareer.ucla.edu/applicants/Central?quickFind=79422
The University of California is an Equal Opportunity/Affirmative Action Employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability, age or protected veteran status. For the complete University of California nondiscrimination and affirmative action policy, see: http://policy.ucop.edu/doc/4000376/NondiscrimAffirmAct
Textualists insist that judges should follow the ordinary meaning of a legal text, and sometimes texts have an ordinary meaning that judges can follow. But sometimes texts have no such thing, in the sense that they are reasonably susceptible to two or more interpretations. Some textualists fall victim to something like the duck-rabbit illusion. They genuinely see a duck; they insist that a duck is the only thing that reasonable people can see. Their perception is automatic, even though it might have been primed, or a product of preconceptions. But reasonable people might well see a rabbit. Various approaches are possible to determine whether we have a duck or a rabbit; most of them do not turn on the text at all.Download the article from SSRN at the link.
October 21, 2020
One of the most difficult challenges of mature legal systems is the need to balance the conflicting demands of stability and flexibility. The demand for flexibility is at odds with the principle of impartiality, which is considered a cornerstone of the rule of law. In the present article, I explore the way in which the law copes with this dilemma by developing the idea of tolerance of incoherence. I argue that tolerance of incoherence emerges from the interplay between the inferential and lexical-semantic rules that determine the meaning of legal speech acts. I base this argument on an inferential model of speech acts, which I develop through a discussion of graded speech acts, and on the idea that that the use of speech acts is governed by multiple and potentially conflicting conventions. I show how this tolerance allows the law to resolve the tension between dynamism and traditionality, and discuss its sociological and moral implications.Download the article from SSRN at the link.
October 17, 2020
This paper examines the origins of legal language. It begins with a discussion of language in the civil law system, which originated in Rome, was refined in Byzantium, rediscovered in Italy, codified in Prussia and France, and ultimately spread throughout most of Europe and, via colonialism, to many other parts of the world. The common law, which developed in England, was heavily influenced by Anglo-Saxon invaders, Latin-speaking missionaries, and French-speaking Normans. Its language also took root in much of the world via the British empire. Finally, we discuss what might be called mixed legal systems, and we conclude by speculating on the possible effects of globalization on the languages of law.Download the essay from SSRN at the link.
October 15, 2020
Since the inadequacy of the traditional theoretical frameworks for the study of the “global transformation of modernity” (Beck) became more and more visible in the last decades of the twentieth century, “culture” has figured prominently in many literature that theorize the post-national condition. Yet despite studying similar phenomena of displacement, fragmentation and hybridization, in legal academia, cultural analysis perspectives have traditionally played a rather marginal role in the discourse on globalization and trans-nationalization. Although some authors have indeed attempted to ope-rationalize the concept of culture in grappling with effects of legal globalization, the emerging field of transnational law never took a significant “cultural turn”. This chapter retraces this disciplinary development and reflects on the use of "culture" in transnational law discourse. While not advocating a more prominent role for the notoriously difficult concept of culture, this brief survey serves as a reminder that the same substantive and theoretical choices that kept transnational law from drawing more heavily on cultural analysis and traditional legal pluralism also may limit its scope and create theoretical blind spots.Download the essay from SSRN at the link.
October 14, 2020
This is a reminder that the call for papers for Graphic Justice Discussions 2020, the annual conference of the Graphic Justice Research Alliance, is closing on 19 October 2020.
The event is being hosted online by Middlesex University on 8 December 2020, with the theme ‘Graphic Justice in Times of Crisis’. See full details here: https://graphicjustice.org/gjd-2020/.
The Graphic Justice Research Alliance is a research community at the intersections of law, comics, and justice.
October 13, 2020
This essay celebrates Erie's 80th birthday by charting the decision's extremely dynamic significance as a constitutional decision. Newly collected historical evidence shows that "original Erie" was criticized as constitutionally heretical in the 1930s and 1940s . The decision rose to power only in the 1950s and 1960s, carried forward on the powerful legal-process shoulders of Hart and Wechsler. During the 1970s and 1980s, Erie was pushed toward the periphery of constitutional law along with the legal process school itself. Yet in the 21st century, Erie rose from the ashes as political conservatives articulated a forceful "new Erie" myth about separation of powers. The fact that Erie's multiple meanings are so often conflated or ignored reveals a correspondingly prevalent inattention to methods of interpreting precedents. As a matter of legal theory, iconic court decisions offer legal mixtures of stability and dynamism, of legitimacy and politics, that are analogous to statutes, constitutions, and other forms of law. Erie's birthday offers an especially useful chance to think about the untapped possibilities of "precedential originalism" or "living precedentialism," alongside interpretive schools that are well known in other legal contexts.Download the article from SSRN at the link.
October 11, 2020
Eskridge, Slocum, and Gries on The Meaning of Sex: Dynamic Words, Novel Applications, and Original Public Meaning @EskridgeBill @PacificMcGeorge @YaleLawSch
The meaning of sex matters. The interpretive methodology by which the meaning of sex is determined matters. Both of these were at issue in the Supreme Court’s recent landmark decision in Bostock v. Clayton County, Georgia, where the Court held that Title VII protects lesbians, gay men, transgender persons, and other sex and gender minorities against workplace discrimination. Despite unanimously agreeing that Title VII should be interpreted in accordance with its original public meaning in 1964, the Court failed to properly define sex or offer a coherent theory of how long-standing statutes like Title VII should be interpreted over time. We argue that long-standing statutes are inherently dynamic because they inevitably evolve ‘beyond’ the original legislative expectations, and we offer a new theory and framework for how courts can manage societal and linguistic evolution. The framework depends in part on courts defining ‘meaning’ properly so that statutory coverage is allowed to naturally evolve over time due to changes in society, even if the meaning of the statutory language is held constant (via originalism). Originalism in statutory and constitutional interpretation typically focuses on the language of the text itself and whether it has evolved over time (what we term linguistic dynamism), but courts should also recognize that the features of the objects of interpretation may also evolve over time (what we term societal dynamism). Linguistic dynamism may implicate originalism but societal dynamism should not, as originalists have assumed in other contexts (such as Second Amendment jurisprudence). Putting our framework into action, we demonstrate, through the application of corpus analysis and linguistic theory, that sex in 1964 was not limited to “biological distinctions between male and female,” as all of the opinions in Bostock assumed, and gender and sexual orientation were essentially non-words. Sex thus had a broader meaning than it does today, where terms like gender and sexual orientation (and other terms like sexuality) denote concepts that once could be referred to as sex (on its own and in compounds). In turn, ‘gays and lesbians’ and transgender people became new social groups that did not exist in 1964. By limiting the meaning of sex to “biological distinctions” and failing to recognize that societal dynamism can change statutory coverage, the Court missed the opportunity to explicitly affirm that the societal evolution of gays and lesbians and transgender people has legal significance.Download the article from SSRN at the link.
October 6, 2020
October 4, 2020
The theme for the 2021 African American Intellectual History Society's Sixth Annual Conference is "The West." It will be a virtual conference. The society's conference committee is accepting individual proposals until October 15. Here's more about the conference.
“The West” is a significant, but ambivalent, concept in the diasporic Black experience. From a hegemonic perspective, imperial governments and white intellectuals have used the concept to demarcate the supposedly “civilized” from the “uncivilized,” and the modern from the pre-modern. Globally, it has been used to divide some ethnic and racial groups while coalescing others. “The West” is also a physical location, encompassing various regions, nations and states primarily in Europe, the Americas, Australia, New Zealand, and neighboring islands.
In the United States, “the West” includes a vast and diverse region, typically including the states west of the Mississippi River. By force or choice, voluntarily or involuntarily, Black people immigrated and migrated westward. For many Black people in the US South, especially during the era of Jim Crow, “the West” represented a new beginning. However, Black people migrating west soon learned the landscape offered a complex racial geography that both met and fell short of their expectations.
We invite scholars to think deeply about the complicated and often conflicted relationship between Blackness and “The West” (as a concept, imagined geography, and physical space). We encourage proposals that grapple with these and other questions: a) What does “The West” mean in the contemporary moment of Black life? b) From the early modern period until our contemporary reality, how have Black people in the Americas and around the world navigated “The West” in terms of principle, imagined geography, and physical space? c) What can interactions between Indigenous peoples and peoples of African-descent in the West do to enlighten us about the concept of the West? d) Can Black people, as a historically subjugated population, represent and embody “The West?” And, perhaps just as importantly, why would they want to?
AAIHS welcomes individual proposals for abbreviated presentations (5-6 minutes) that consider “The West” from a variety of perspectives, including, but not limited to, gender, sexuality, religion, digital humanities, politics, class, popular culture, art, literature, and environmental justice. Each proposal will be considered for inclusion in one of the featured conference sessions, which will be scheduled remotely on March 19 or March 20, 2021. Additionally, the conference committee will identify proposals to consider including in a forthcoming special forum AAIHS is organizing for Modern Intellectual History, a leading journal that publishes scholarship in intellectual and cultural history from 1650 to the present. Invited authors will submit a full draft of a journal article no later than December 30, 2021.
Finally, submitted proposals will also be considered for inclusion in a forthcoming AAIHS edited volume based on the 2021 conference theme. This year, AAIHS will not be accepting proposals for full panels. We are only accepting proposals for individual abbreviated presentations. The conference committee, in consultation with the AAIHS board, will select proposals to include in featured panels (and in the forthcoming special journal issue and edited volume). AAIHS invites scholars at various ranks and affiliations (from graduate students to senior faculty and independent scholars) to submit proposals for consideration. Each proposal should include a title and approximately 500 words, clearly explaining the paper’s argument; methods and methodologies; interventions; and engagement with the conference theme.
Submissions should also include a short CV (1-3 pages in length), highlighting previous publications and presentations, if applicable. Proposals should be submitted here no later than 11:59pm EST on October 15, 2020.
October 3, 2020
Few scholars have influenced an area of law more profoundly than Catharine MacKinnon. In Sexual Harassment of Working Women (1979), MacKinnon virtually invented the law of sexual harassment by arguing that it constitutes a form of discrimination under Title VII of the Civil Rights Act of 1964. Her argument was in some ways quite radical. She argued, in effect, that sexual harassment was not what it appeared to be. Behavior that judges at the time had thought was explained by the particular desires (and lack thereof) of individuals was better understood as a form of social domination of women by men. Judges, she argued, had failed to see that such conduct was a form of oppression because the social and legal categories through which they interpreted it was itself the product of male power. This argument is not your typical legal argument. It may not even seem like a legal argument at all. But this article explains why on one, but only one, model of legal reasoning, MacKinnon’s argument properly qualifies as a form of legal reasoning. Neither the rationalist nor the empiricist tradition of common-law adjudication can explain the rational force of her argument. But a third, holistic tradition of the common law captures its logic well. It does so because, like MacKinnon’s argument (but unlike the other two traditions), it treats judgments of fact and value as interdependent. This structural compatibility between MacKinnon’s argument about gender oppression, on the one hand, and the holistic tradition of the common law, on the other, has theoretical and practical implications. It not only tells us something about the nature of law; it also suggests that critical theorists (like MacKinnon) may have more resources within the common law tradition to make arguments in court than has been assumed.Download the article from SSRN at the link.