November 25, 2020

Barnes on Interrogating the Self-Told Narrative: Lord Lindley's Autobiography, His Life and His Legal Biography @maxplancklaw

Victoria Barnes, Max Planck Society for the Advancement of the Sciences, Max Planck Institute for European Legal History, has published Interrogating the Self-Told Narrative: Lord Lindley's Autobiography, His Life and His Legal Biography at 41 Journal of Legal History 143 (2020). Here is the abstract.
Autobiographies are now popular forms of literature, but for those in the legal profession, this tradition has a much longer history. This article examines the memoir written by Lord Nathaniel Lindley (1828–1921). Lord Lindley is famed for his writings in company law and for his judgments in a considerable number of landmark cases in the court of appeal and in the house of lords. The article uses Lindley’s memoir alongside other archival records to shed some much-needed light on Lindley’s background, his relationships and his private life. In doing so, it raises points of note about his life but also some wider methodological concerns. Lindley’s memoir is key in unearthing new insights into Lindley’s life. In this document, he explains how he was able to reach the upper echelons of the legal profession. This article considers the way that autobiographies can be used to present certain narratives. The analysis shows how the evidence presented in these sources can be triangulated and combined with other sources to overcome natural biases and flaws in order to create a fuller and more balanced legal biography. Overall, the article considers the value of autobiographies and memoirs in the construction of a legal biography.

Download the article from SSRN at the link. 

November 20, 2020

Acevedo on Law's Gaze @UALawSchool

John Acevedo,  University of Alabama School of Law, has published Law's Gaze as University of Alabam Legal Studies Research Paper No. 3694579. Here is the abstract.
When looking at a sexualized image the viewer is both subject and object of the artwork because the gaze of the viewer is turned back on themselves. Thus, the Supreme Court's jurisprudence on obscene speech tells us more about the viewer of an image than we do about the image itself. The existence of the gaze is revealed in the Court’s obscenity jurisprudence and its inability to settle on a definition of obscenity for most of the 20th century. In all of these instances the court looks upon pornographic materials as the object upon which the court gazes, but in reality the nature of these materials flips the view so the Court becomes the object on which pornography gazes At the same time the fixation on criminalizing obscenity has led to the silencing of the models who appear in sexual images. Drawing on social theories, this article argues that the failure of obscenity law was inevitable because at the heart of obscenity lies unending subjectivity. This subjectivity means that obscenity should be protected under the First Amendment. But it also proposes changes to the law that will continue to protect children and give voice to models.
Download the article from SSRN at the link.

November 16, 2020

Barrett on Some Alexander Hamilton, But Not So Much Hamilton, in the New Supreme Court @CornellPress @JohnQBarrett

John Q. Barrett, St. John's University School of Law, Robert H. Jackson Center, has published Some Alexander Hamilton, But Not So Much Hamilton, in the New Supreme Court as St. John's Legal Studies Research Paper No. 20-0014. Here is the abstract.
This essay is one of thirty-five in the book Hamilton and the Law: Reading Today’s Most Contentious Legal Issues Through the Hit Musical(Cornell University Press, Lisa A. Tucker, ed., Oct. 2020). This essay considers the possibility that Hamilton: An American Musical, the sensation that has captivated so many, plus its soundtrack that plays on in our heads and on our devices, will stir and influence United States Supreme Court justices as they interpret the U.S. Constitution. Our Supreme Court justices have always been interested in the lives and the words of the Founding Fathers. For example, The Federalist essays of 1787-1788, most of them penned by Alexander Hamilton, have been cited in hundreds of Court decisions. So have other Founding-era materials, including many words from James Madison, the so-called Father of the Constitution. But as Justice Robert H. Jackson wrote in the 1952 Steel Seizure Case (Youngstown Sheet & Tube Co. v. Sawyer), this judicial enterprise often is not illuminating—“a Hamilton may be matched against a Madison”; “Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.” When the musical Hamilton opened on Broadway in 2016, Hillary Clinton was on her way to being elected president. It was predictable that she would get to appoint new Supreme Court justices, and that they would be, as she is, inclined to read expansively the Constitution’s provisions defining national government powers. These newcomers would constitute a Supreme Court in the Hamilton era. They would see the musical, hear the songs, be stirred, and perhaps even quote from and cite to Hamilton. U.S. politics took a different path. Yes, many of the justices have seen Hamilton. More liberal, nationalistic, Alexander Hamilton-admiring justices have praised it. More conservative justices have had less to say about it. In Supreme Court decisions through June 2019, there is not much trace of Hamiltonian—forefather or modern musical—influence.
The full text is not available for download.

November 12, 2020

Cooney on Larry Potter and the Deathly Canon @WMUcooleylaw @jmarkcooney

Mark Cooney, Western Michigan University Cooley Law School, has published Larry Potter and the Deathly Canon at 99 Mich. B. J. 48 (Sept. 2020). Here is the abstract.
This Michigan Bar Journal column discusses the ejusdem generis canon of statutory construction, using a courtroom-based Harry Potter parody as its vehicle.
Download the article from SSRN at the link.

November 10, 2020

Schauer on Constructing Interpretation

Frederick Schauer, University of Virginia School of Law, is publishing Constructing Interpretation in the Boston University Law Review. Here is the abstract.
This paper, a substantially revised version of a paper previously entitled (and posted as) “A Critical Examination of the Distinction between Interpretation and Construction,” argues not only that the justifiably prominent and valuable distinction between interpretation and construction loses much of its value when applied to technical language, but also that the point of the distinction is undercut by the existence, following Hart and Searle, of constitutive legal language. When legal instruments, whether contracts or statutes or constitutions, create types of behavior that would otherwise not exist, as opposed to regulating antecedently existing behavioral possibilities, it becomes impossible to interpret the language that constitutes behavior without taking into account all of the legal goals and principles that proponents of the distinction would relegate to the “construction zone.” For such constitutive language, just as with technical language, all of the values, aims, and principles of law in general or of a particular legal provision pervade both sides of the distinction, sharply reducing the importance of the distinction for such language.
Download the article from SSRN at the link.

Whisner On When Douglas Hired a Woman To Clerk @marywhisner

Mary Whisner, University of Washington School of Law, has published Douglas Hires a Woman to Clerk 2020 Green Bag Almanac and Reader 297–310 (2020) at 2020 Green Bag Almanac and Reader 297 (2020). Here is the abstract.
The editors of the 2020 Green Bag Almanac and Reader mined Justices' papers held by the Library of Congress for handwritten documents to feature and invited essays about each one. This essay is a gloss on Vern Countryman's letter to Justice William O. Douglas (Jan. 12, 1944) recommending a law student from the University of Washington to serve as a clerk. The law student was Lucile Lomen, who became the first woman to clerk for a Supreme Court Justice. The essay offers biographical tidbits and historical context—including Lomen's childhood in Nome and Seattle life during World War II. Along with shipbuilding and troop movements, the Seattle experience included the internment of Japanese Americans (Gordon Hirabayashi was a student at the UW at the same time Countryman and Lomen were there), an issue that went East to the Supreme Court, as the young clerks did. As a Seattleite whose parents were born the same year as Lomen, I also weave in some personal history.
Download the essay from SSRN at the link.

November 9, 2020

ICYMI: Roman on Outsider Jurisprudence and Looking Beyond Imagined Borders @latinolawprof @fiulaw

ICYMI: Ediberto Roman, Florida International University College of Law, has published LatCrit VI, Outsider Jurisprudence and Looking Beyond Imagined Borders at 55 Florida Law Review 583 (2003). Here is the abstract.
The consequences of first-world globalization on people of color will often be pernicious and will not only affect the lives of Latinas/os in the Americas, the Caribbean, and other areas, but it will have an indirect impact on these groups within the United States. Latina/o communities within this country are pan-ethnic, with ties here and to their homelands. These groups directly affect, and are affected by Latinas/os throughout the world. This reality, among others, demonstrates that Latinas/os residing in this country exist, in many respects, in a transnational status "typically retaining strong material connections to, and cultural identifications with, their homelands' traditions, issues, concerns, hopes and aspirations." These characteristics have global effects that are not limited to trade, which includes the movement of capital to and from transnational regions and the migration of thousands of individuals, it will also affect perceptions of identity, nationality, and democracy.
Download the article from SSRN at the link.

November 6, 2020

Call For Submissions: Law and Society Association Meeting, 2021 @law_soc


The Law and Society Association has issued a Call For Submissions for its 2021 Meeting in Chicago and virtually. The dates are May 27-30,  and the theme is Crisis, Healing, Re-Imagining. Here is a link to LSA's website and information about the Call. 

November 5, 2020

Stern on Proximate Causation in Legal Historiography @ArsScripta

Simon Stern, University of Toronto Faculty of Law, is publishing Proximate Causation in Legal Historiography in History and Theory (2020). Here is the abstract.
The variety of legal history published in general-interest law journals tends to differ from the variety published in history journals. This study compares the two varieties by examining footnote references in five general-interest law journals, and footnote references in two journals of legal history. In the law journals, cases and statutes accounted for the single largest group of footnotes (approximately 35%), followed by references to other law journal articles (nearly 25%). In the legal history journals, these two categories accounted for less than 20% of all references; primary and secondary historical materials predominated in the footnotes. To be sure, legal decisions and law journal articles can also be historical sources: rather than being used as evidence of what the law is, they might be studied for what they reveal about legal reasoning or rhetoric in an earlier age. However, in most legal historical research that attends primarily to cases and statutes, these materials figure as evidence of the state of the law at that time. When the analysis relies on legal sources to trace the development of a certain doctrine, and treats them as sufficient to account for that development, the result is the distinctive style of research that I seek to contrast against approaches that cast the net of historical inquiry more widely. To account for these different approaches, I suggest that law professors rely on a notion of proximate causation as a historiographic method. According to this approach, legal developments are proximately caused by other developments in the legal sphere, and other social and cultural developments play a more attenuated role, such that their influence is less significant. By proposing this explanation, I hope to draw more attention to assumptions about causation in legal historiography, and to question their persuasive force.
Download the article from SSRN at the link.

November 3, 2020

Bragagnolo on Crossing Temporal Boundaries: Muratori's Notetaking Practice and the Material Circulation of the Thinking on Law Between the 16th and 18th Centuries

Manuela Bragagnolo, Max Planck Society for the Advancement of the Sciences, Max Planck Institute for European Legal History, is publishing Crossing Temporal Boundaries. Lodovico Antonio Muratori’s Notetaking Practice and the Material Circulation of the Thinking on Law between the 16th and 18th Centuries in Illuminismo di frontiera: riscrivere i limiti giuridici (Francesco di Chiara, Giacomo Demarchi, Elisabetta Fiocchi, Belinda Rodríguez Arrocha, eds., Madrid, Dykinson) (forthcoming). Here is the abstract.
In recent years more and more attention has been paid to the various implications of the so-called ‘material turn’ for legal history. While the ‘filing approach’ focused upon the role of ‘paperwork’ in the making of law, the legal historical methodology recently integrated the book history claim to look at the interconnection between form and content, considering legal books as material objects, especially dealing with the circulation of law and legal ideas. This article offers another approach to using materiality as a tool for doing legal history. It focuses on the interdependence between handwritten notebooks and legal thinking. In particular, I explore the notetaking and excerpting practices of one of the leading figures of the cultural, political and religious life of the first half of the Italian Settecento, Lodovico Antonio Muratori (1672-1750), showing how this practice had an impact on the production of Italian 18th-century legal thinking.
Download the essay from SSRN at the link.

Foster on Statutory Construction and Biblical Hermeneutics--Law in the Service of the Gospel? @NeilJamesFoster

Neil James Foster, Newcastle Law School, has published Statutory Construction and Biblical Hermeneutics- Law in the Service of the Gospel? at 252 St. Mark's Review 106 (2020). Here is the abstract.
Explores similarities between statutory interpretation techniques used by courts, and principles of Biblical interpretation used by Bible scholars.
Download the article from SSRN at the link.

November 2, 2020

Women Lawyers on Film and in Television @UTexasLaw @LSULawCenter

A piece by my former student, Danielle Maddox Kinchen: Only the Best and the Brightest: No Room for the Average Female Lawyer in the 21st-Century Cinematic Legal Profession, 21 Tex. Rev. Ent. & Sports L. 55 (Fall 2020). Enjoy!