Mannheimer on Fugitives From Slavery and the Lost History of the Fourth Amendment @nkuedu @NKUChaseLaw

Michael Mannheimer, Northern Kentucky University College of Law, has published Fugitives from Slavery and the Lost History of the Fourth Amendment. Here is the abstract.

Conventional historical accounts of the Fourth Amendment generally ignore the entire antebellum period. Fourth Amendment scholars of an originalist bent typically look to the three decades from the American Writs of Assistance controversy and the British Wilkesite cases in the 1760s, to the adoption of the Bill of Rights in 1791. Scholarship then jumps to the post-Civil War period and the first two Supreme Court decisions interpreting the Amendment, In re Jackson in 1878 and United States v. Boyd in 1886. Ignoring the entire antebellum period makes some sense given that the Supreme Court did not decide a single Fourth Amendment cases during this lengthy period. But just because the Court did not make any Fourth Amendment law does not mean that the Amendment lay dormant. The Amendment was, in fact, very much alive in the hands of Northern lawyers and state legislators resisting the seizure of people of color in their States as alleged fugitives from slavery, whether under the auspices of the Fugitive Slave Acts of 1793 and 1850 or under the so-called common-law “right of recaption.” Lawyers representing alleged fugitives from slavery and state legislators trying to protect free persons of color from being kidnapped into slavery mobilized the Fourth Amendment as a preservation of state control of seizures within each respective State. According to this theory, while the Constitution’s Fugitive Slave Clause required that enslaved persons escaping bondage be “delivered up,” the Fourth Amendment demanded that any claim that a person was a fugitive from slavery would have to be adjudicated by the procedures established by the State where the claim was made. Seizing an allegedly enslaved person without heeding those procedures could subject the slave catcher to civil and criminal liability under state law. In the infamous case of Prigg v. Pennsylvania, the Supreme Court, rather than tackle this Fourth Amendment argument, simply ignored it and broadly rejected States’ attempts to regulate the seizure of allegedly enslaved persons within their borders. Ultimately, this view of the Fourth Amendment as a preservation of state control was forever lost.

Download the article from SSRN at the link.

Call For Papers, Socio-Legal Studies Association Conference, April 6-8, 2022 @SLSA_UK

 

Call for Papers, Socio-Legal Studies Association Conference, 6-8 April 2022

 

We again plan to run a Graphic Justice panel at the SLSA Annual conference.  The 2022 Conference takes place 6-8 April 2022 at the University of York (UK).

 

The call for papers is now open and details of how to submit a paper are here.

Within the Graphic Justice stream we welcome submissions that explore:

 

*       The relationships between comics and related visual media, and law-culturally, socially, formally, theoretically, jurisprudentially.

*       The use of comics and related visual media in law-in practice, education, theory, research.

*       Analysis of comics as objects of legal regulation in their own right-raising issues of definition, ownership, consumption, value.

*       Studies of individual comics, series and genres.

 

Other areas are also welcome. The call for papers closes on 7 January 2022.

 

 

Seaborne on Rape and Law in Medieval Western Europe @BristolUniLaw

Gwen Seaborne, University of Bristol Law School, is publishing Rape and Law in Medieval Western Europe in Companion to Medieval Crime and Deviance (H. Skoka, ed.,--). Here is the abstract.

A consideration of legal responses to rape, in later medieval western Europe. Content warning: given the subject matter, there is material here which is difficult.

Download the essay from SSRN at the link.

Barrett on Law Clerk John Costelloe's Photographs of the Stone Court Justices, October 1943 @johnqbarrett @StJohnsLaw

John Q. Barrett, St. John's University School of Law, Robert H. Jackson Center, has published Law Clerk John Costelloe's Photographs of the Stone Court Justices, October 1943, at 46 Journal of Supreme Court History 162 (2021). Here is the abstract.

When U.S. Attorney General Robert H. Jackson was appointed to the U.S. Supreme Court in Summer 1941, he brought a young Department of Justice lawyer, John F. Costelloe, with him to be his law clerk. John Costelloe was an excellent law clerk. He worked with Justice Jackson at the Court for more than two years, including on Jackson’s now-canonical opinions for the Court in Wickard v. Filburn (1942) and West Virginia State Board of Education v. Barnette (1943). John Costelloe also was a talented photographer. In October 1943, as Costelloe was completing his clerkship, he got each Supreme Court Justice to pose for his camera. Costelloe later developed and printed close, candid portrait photographs of the Justices: Chief Justice Harlan Fiske Stone and Associate Justices Owen J. Roberts, Hugo L. Black, Stanley Reed, Felix Frankfurter, William O. Douglas, Frank Murphy, Robert H. Jackson, and Wiley Rutledge. John F. Costelloe’s portrait photographs of the Justices are published here for the first time, in an article on Costelloe, Jackson, their close relationship, and the history of the photographs.

The full text is not available for download from SSRN.

Frías on Vicario (DCH)/ Vicar (DCH)

Susana Frías, Academia Nacional de la Historia (Argentina), has published Vicario (DCH) (Vicar (DCH)) as Max Planck Institute for Legal History and Legal Theory Research Paper Series No. 1. Here is the abstract.

Spanish Abstract: El artículo repasa las principales acepciones de la voz Vicario en el contexto del derecho canónico en el período hispano-americano, basándose en fuentes de la época. La más frecuente es la de delegado del obispo con funciones ordinarias que éste expresamente le da, pero también se analizan otros oficiales que responden a la voz: los foráneos, los coadjutores y los sufragáneos. Existen, sin embargo, otras acepciones a las que se hará referencia a lo largo de este trabajo: el vicario de Cristo, es decir el Papa; el vicario capitular, nombrado por el Cabildo Eclesiástico; el vicario castrense. La acepción del término en relación con las órdenes religiosas es asimismo significativa para esta voz. Se ha procurado, toda vez que fue posible, ilustrar con ejemplos y datos del contexto hispanoamericano las distintas modalidades, con especial referencia al ámbito rioplatense, que es donde se centran los estudios de la autora. Se procura arrojar luz sobre algunos temas que trascienden la mera descripción de la institución. Entre otros, la tensión entre los prelados y las órdenes religiosas generada en América a partir de la organización administrativa de las diócesis o la pugna de criollos y españoles, tanto en el ámbito diocesano como en el seno de las Órdenes. Un aspecto fundamental es la creciente influencia de la Corona española sobre las instituciones eclesiásticas.

 

English Abstract: The article reviews the main meanings of the word Vicar in the context of canon law during the Spanish-American period, based on sources of the time. The most frequent use is that of the bishop's delegate with ordinary functions expressly granted by the bishop; but for other officials this term was applied as well: the foreigners, coadjutors and suffragans. Other meanings to which reference is made throughout this work are the following: the vicar of Christ, that is, the Pope; the capitular vicar, appointed by the Ecclesiastical Chapter; the military vicar. The meaning of the term in relation to religious orders is also significant for this entry. Whenever possible, the different modalities are illustrated by examples and data from the Hispanic-American context, with special reference to the River Plate area, where the author's studies are focusing on. She has attempted to shed light on some issues that go beyond the mere description of that institution. Among others, the tension between the prelates and the religious orders stemming from the administrative organization of the dioceses in America or the struggle between Creoles and Spaniards both at the diocesan level and within the Orders. A fundamental aspect is the growing influence of the Spanish Crown over ecclesiastical institutions.

Download the article from SSRN at the link.

Reminder: Nominations for Berman Award For Excellence in Scholarship Due December 10, 2021

 Reminder:

The AALS Section on Law & Religion seeks nominations for the 2022 Harold Berman Award for Excellence in Scholarship. This annual award recognizes a paper that “has made an outstanding scholarly contribution to the field of law and religion,” in the words of the prize rules. To be eligible, a paper must have been published between July 15, 2020 and July 15, 2021. The author must be “a faculty member at an AALS Member School with no more than 10 years’ experience as a faculty member.” Fellows are eligible, and self-nominations are accepted. Nominations should include the name of the author, the title of the paper, a statement of eligibility, and a brief rationale for choosing the paper for the award. Nominations should be sent to Elizabeth Katz (elizabeth.katz@wustl.edu), Chair of the Berman Prize Committee, by December 10, 2021. Thanks to the members of the Prize Committee: Elizabeth Katz (Washington University-St. Louis), Chair and Marie Failinger (Mitchell Hamline), Rick Garnett (Notre Dame), Jim Oleske (Lewis & Clark), and Audra Savage (Emory).

 

Canadian Network of Law & Humanities Launches; Check Out Its Website @LawHumanitiesCA

 The Canadian Network of Law & Humanities has launched. It brings together scholars "interested in the cultural, imaginative, and embodied aspects of law."

The CNLH tweets at @LawHumanitiesCA. 

Call For Papers, Law and Literature in Europe, October 17-19, 2022

 Call For Papers, Law and Literature in Europe, Muenster, October 17-19, 2022

The process of Europeanisation that has happened in political, social, cultural and especially legal form over the last decades, may duly be considered one of the most important and powerful changes within Europe, but also beyond. The process of instituting and developing a European internal market as a catalyst did not only lead to the transition of important sovereign rights from individual states to the European union, but also contributed to the latter’s political regulation and standing. Such processes of European integration are simultaneously embedded in and countered by tendencies towards legal, political and cultural regionalisation and re- nationalisation, thereby enabling not only a Europewide resurgence of right-wing national parties and factions, but also leading to the erosion of constitutional premises in terms of the separation of powers and the freedom of the press. Further elements, such as the Yugoslav Wars of the 1990s, the global financial crisis of 2008 or the refugee crisis of 2015, have contributed significantly to the conflictual positioning between European integration and disintegration. Brexit and climate change, as well as worldwide digitalisation, also signal towards the need of the integration of Europe and its political borders.

National literatures both on the Continent and in Britain have reflected these disintegrating crises critically, but they have also focused on periods of European integration in less critical times (eg. Menasse, McEwan, Houellebecq). Consequently, there are obvious processes of how law and literature connect each other as well as insights into the reasons why the legalisation processes in Europe have not been accompanied by a similar cultural and literary integration on a European level – although the institutionalisation and legal guarantee of translations supports the phenomenon of European bestsellers.

At the same time, such processes of Europeanisation and European integration need to be considered in their historical dimension, as scholars across Europe during the Enlightenment, for instance, also saw themselves as one community and acted as such. Questions of natural law as well as the importance of literature for the developing Enlightenment necessarily focused specifically on a European context, which can be seen in Lessing’s position on tolerance as represented in Nathan, for instance, since Lessing conceived of such considerations in an imagined dialogue with theorists such as Locke and Voltaire. Even tendencies towards nationalisation in the 19th and 20th centuries reflect critically on the political and economic internationalisation of law and literature.

The conference will focus on culturally connected and comparable processes of Europeanisation in law and literature as well as their correlation since the early modern period.

The organisers therefore invite papers on topics such as

-          European integration; European identity and its Other

-          Processes of regionalisation and re-nationalisation

-          Narratives of Europe; European Narratives

-          Europe imagined

-          Legal culture in Europe

-          Digital agency

-          Migration and citizenship

-          Cultures of translation

-          Literature’s legal autonomy and its limits

-          European bestsellers and marketing

For updates on the Conference, please refer to the Centre's website: www.uni-muenster.de/SFB1385/en/index.html

 

Please send a short abstract (300 words) to juliusnoack@wwu.de by May 31st, 2022.

Pallotta on Spanish Constitutional History

Omar Makimov Pallotta, Università degli Studi di Macerata, is publishing Spagna, in Sistemi costituzionali europei (E. Di Salvatore, ed., Giuffrè, Milano, 2021). Here is the abstract.

Italian abstract: Il contributo ha ad oggetto l’esperienza costituzionale spagnola. Si prendono in esame le tappe principali della storia costituzionale del Paese, a partire dall’approvazione della Costituzione di Cadice, passando per la proclamazione della prima e della seconda Repubblica, per finire con il periodo buio del franchismo e la successiva entrata in vigore della Costituzione del 1978, tuttora vigente. Ampio spazio è dedicato alla tutela dei diritti fondamentali (per il tramite del giudizio di amparo ordinario e costituzionale), allo “Stato sociale e democratico di diritto” di cui all’art. 1 Cost., ai problemi legati allo Stato autonomico (compreso il tema delle rivendicazioni indipendentiste catalane), alla forma di governo, con particolare riguardo all’impatto determinato dall’emersione dei c.d. “nuovi partiti” (Podemos, Ciudadanos, Vox), agli istituti di garanzia e, soprattutto, ai rapporti tra Spagna e Unione europea, rispetto ai quali svolge un ruolo di primaria importanza la giurisprudenza del Tribunal Constitucional. 

 

 English abstract: The paper aims at analyzing the entire constitutional experience of Spain. All the key milestones of the Spanish constitutional history are considered, starting from the approval of the Constitution of Cádiz, passing through the first and second Republic, to end up with the dark period of Francoism and the subsequent entry into force of the 1978 Constitution. A large space is dedicated to the protection of fundamental rights (by means of the ordinary and constitutional recurso de amparo), the “Social and democratic State, subject to the rule of law” ex art. 1 of the Constitution, the problems linked to the “Estado autonómico” (included the Catalan independentist claims), the form of government, with special regard to the impact on the latter of the so-called “new parties” (Podemos, Ciudadanos, Vox), the constitutional guarantee bodies and, especially, the relations between Spain and the European Union, often shaped by the case-law of the Tribunal Constitucional.

The full text is not available from SSRN.

Brang on Conceptual Realism and Imperial Nostalgia in Chinese Legal Historiography @UniCologne

Lucas Brang, University of Cologne, has published Conceptual Realism and Imperial Nostalgia in Chinese Legal Historiography at 19 International Journal of Constitutional Law 328 (2021). Here is the abstract.

In this review essay, I discuss two recent trends in Chinese constitutional theory and their influence on the field of legal historiography. The first of these trends is a methodological turn toward “conceptual realism.” Conceptual realists hold that legal concepts should be able to adequately capture political reality, lest they (i) end up eroding China’s illiberal political status quo — the neo-conservative agenda — or (ii) fail to identify the deep-seated reasons for the repeated failure of liberal constitutionalism in modern China — the critical-liberal agenda. Terminologically, this anti-formalist turn manifests itself in a set of conceptual binaries, including that of “state body” (guoti 国体) vs. “form of government” (zhengti 政体), “absolute constitution” vs. “constitutional law,” and “political” vs. “normative constitution.” The second trend is a broader shift toward historicism and “imperial nostalgia,” that is, the belief that, for better or for worse, the structural features of China’s pre-modern imperial state (should) continue to impact its present constitutional reality. A review of recent Chinese literature suggests that — while there is some agreement among “conceptual realists” on the legal-territorial implications of China’s modern transition from empire to nation-state — there is substantial disagreement on the reasons for its subsequent failure to consolidate liberal constitutional democracy. This also indicates that, while “statism” has indeed emerged as a new methodological consensus in Chinese academia, this consensus does not translate into a shared normative vision beyond the undisputed territorial unity of the Chinese nation-state. The discussion focuses on two books: Gao Quanxi, Zhang Wei, Tian Feilong, 现代中国的法治之路 [The Road to the Rule of Law in Modern China] (2012); and Zhang Yongle, 旧邦新造: 1911-1917 [The Remaking of an Old Country: 1911-1917] (2016).

The full text is not available from SSRN.

Pimentel on Blues and the Rule of Law @LoynoLawReview @uidaholaw

David Pimentel, University of Idaho, has published Blues and the Rule of Law at 67 Loyola Law Review 191 (2021). Here is the abstract.

Blues music emerged from African American communities during the Jim Crow era, inspired at least in part by society’s failure to afford them access to justice or the rule of law. The First Amendment, however, provided sufficient protection to speech to allow the art form of the Blues–lamenting the general disenfranchisement of Blacks in America–to develop, and ultimately to reach white audiences. At the same time, because reform came through extra-legal means (the speech and music of protest), the Blues also glorified the character of the outlaw, who flouts corrupt and unresponsive legal authority. In the end, the Blues, by lamenting the failure of legal institutions and lionizing the outlaw who defies them, raised awareness and played a role in bringing U.S. society closer to the rule of law, helping to resolve the rule of law failures that inspired its emergence.

Download the article from SSRN at the link.

Berge on Ancient Greek Nomos and Modern Legal Theory @berge_lukas

Lukas van den Berge, Utrecht University Faculty of Law, is publishing Ancient Greek Nomos and Modern Legal Theory: A Reappraisal in the Netherlands Journal of Legal Philosophy (2021). Here is the abstract.

Recently, two books have appeared that venture to re-investigate modern legal theory's ancient Greek underpinnings. In both books, the notion of nomos plays a central role. Firstly, Thanos Zartaloudis has published a remarkable study in which he delves into the manifold meanings of that ancient Greek word. Zartaloudis offers us an extraordinarily rich analysis of the polyvalent forms and uses of nomos from the age of Homer up to the days of Socrates – the classical period in which nomos would finally come to acquire its sense of an enacted legal norm (‘law’) or binding social convention (‘custom’). Secondly, nomos is of central importance in Johan van der Walt’s recent book on the intertwined modern notions of liberal democracy and the rule of law – referred to by Van der Walt as the concept of liberal democratic law. For Van der Walt, the analysis of ancient Greek nomos and its long and tortuous reception history in western thought is crucial for a proper understanding of what the modern concept of liberal democratic law entails and how it could be saved for the future.

Download the article from SSRN at the link.

Menard on The Legal Within Folktales: Embedded Law in Indigenous and French Canadian Oral Stories @xavierfm3 @NLawGlobal

Xavier Foccroulle Menard, Norton Rose Fulbright Canada LLP, is publishing The Legal within Folktales: Embedded Law in Indigenous and French Canadian Oral Stories in volume 7 of ANAMORPHOSIS: International Journal of Law and Literature (2021). Here is the abstract.

This essay pertains to the discovery of legal concepts and principles within Indigenous and French Canadian oral folk stories to develop greater dialogue across legal traditions. This is done in two parts. The first part focuses on the literary study of Indigenous and French Canadian folklore. It is argued that oral folk stories are legitimate and relevant object of law in literature study as they constitute dense and potent source of legal principles, concepts and notions. The second part directly engages an archetype of Indigenous and French Canadian folktales. It looks to find legal principles, concepts and notions through the supernatural characters of windigo and werewolf[.]

Download the article from SSRN at the link.

Giuliani on Legal Historians as Designers

Adolfo Giuliani, Max Planck Institute for Legal History and Legal Theory, has published Legal Historians as Designers. Here is the abstract.

One of the features of information societies is the importance acquired by design. When we turn to the legal field, we see this tendency reflected in the increasing role of legal professionals as legal designers. This observation applies to legal historians too. Their growing function is not only to be diggers of historical facts but also designers of the explanatory keys to make them understandable.

Download the essay from SSRN at the link.

Reminder: Call For Abstracts, Law and Visual Jurisprudence, Due December 1, 2021

 

Springer Law Book Series:

LAW AND VISUAL JURISPRUDENCE

 

 

Aesthetics of Law in External Frame: From Methodology to Manifestations

 

Editors: Anne Wagner & Kamil Zeidler

 

 

Department of the Theory and Philosophy of the State and Law Faculty of Law and Administration

University of Gdańsk, Poland

 

 

This call for papers is intended as an opportunity for dialogue and exchange of views in the field of various manifestation of law in the broad understood art or related to art, which are captured within the aesthetics of law. In view of the topics suggested in the call, we propose this book with the aim of promoting an interdisciplinary and fresh approach to the subject of aesthetics of law, in the following perception of it.

The juxtaposition of law and aesthetics from the very beginning raised many doubts and controversies, resulting mainly from the fact that aesthetics, associated primarily with art, shows incredible plasticity and changeability, while the law is characterized by a certain rigidity and formalism. The possibility of combining law and aesthetics was born, which grew out of pragmatic aesthetics, one of the contemporary theories of perception of aesthetics, which was born in the twentieth century. According to its assumptions, aesthetics is no longer only associated with art and a work of art and the aesthetic experiences that accompany them, but even the leading theses of pragmatic aesthetics have become de-aestheticization of art and aestheticization of everyday life. The development of pragmatic aesthetics has meant that aesthetic experiences, unsatisfied with art, will be satisfied in a different way, with the help of objects and phenomena surrounding the recipient. As a result, the law, omnipresent in everyday life, has become the subject of aesthetics.

The aesthetics of law actually appears as one of the parts of the philosophy of law that focuses on the relationship between law and aesthetical values, in their broadest sense. The aesthetics of law can be closed in its three dimensions: external, internal and the approach defined as “law as a tool of aestheticization”. The aesthetics of law in an external dimension deals with all manifestations of law, its motives, symbols and legal inspirations that have been

presented for centuries in the fine arts. It cannot be denied that in the history of painting, sculpture, literature and film, there are countless examples of works in which the source of artistic inspiration was the broadly understood issue of law. Law can therefore be a material for art and, just like art, affect its recipients, shaping their perception of law, precisely by means of how it is presented in a given work. In internal dimension, the subject of the aesthetics of law is the law itself, treated as a carrier of aesthetic values and corresponding experiences and evaluations, and legal activity itself can thus be treated as a creative activity. The third dimension refers to the law as “tool of aestheticization” of everyday life, which indicates the aesthetic function of law, implemented mainly by legal regulation and the legal norms they contain, which are the determinants of what is aesthetic.

 

This book is going to focus only on the external dimension of aesthetics of law, as a very broad and interdisciplinary field. The main aim of this book is to show various combinations of law with broadly understood art. A fresh and innovative look is important and highly desirable here – both methodological and empirical, focused on manifestations and examples of the aesthetics of law in external frames. Taking this into account, in an attempt to encourage the submission of papers, we invite participants to considers issues in the following grounds:

·        Law in art,

·        Law in literature,

·        Law in film,

·        Visualization of law,

·        Possible methodology in external dimension of the aesthetics of law,

·        Sociological aspects of the external dimension to the aesthetics of law.

 

Submissions following these themes as well as other possible ways of analysis related to the above topics will be welcomed.

Abstracts of 500 words (max.) should be submitted by [1^st December 2021] to Kamil Zeidler (kamil.zeidler@ug.edu.pl) with decisions made by [1^st February 2022].

Chapters should be no longer than 15,000 words (including footnotes, summary, references etc.).

The deadline for full papers is: [31^st May 2022]

AALS Section on Law and Religion Seeks Nominations For 2022 Harold Berman Award For Excellence in Scholarship @TheAALS

 

The AALS Section on Law & Religion seeks nominations for the 2022 Harold Berman Award for Excellence in Scholarship. This annual award recognizes a paper that “has made an outstanding scholarly contribution to the field of law and religion,” in the words of the prize rules. To be eligible, a paper must have been published between July 15, 2020 and July 15, 2021. The author must be “a faculty member at an AALS Member School with no more than 10 years’ experience as a faculty member.” Fellows are eligible, and self-nominations are accepted. Nominations should include the name of the author, the title of the paper, a statement of eligibility, and a brief rationale for choosing the paper for the award. Nominations should be sent to Elizabeth Katz (elizabeth.katz@wustl.edu), Chair of the Berman Prize Committee, by December 10, 2021. Thanks to the members of the Prize Committee: Elizabeth Katz (Washington University-St. Louis), Chair and Marie Failinger (Mitchell Hamline), Rick Garnett (Notre Dame), Jim Oleske (Lewis & Clark), and Audra Savage (Emory).

 

Gardiner on The Meaning of "Going Armed" in the 1328 English Statute of Northampton

Richard Gardiner, Government of the Commonwealth of Virginia, Fairfax County Circuit Court, has published The Meaning of 'Going Armed' in the 1328 English Statute of Northampton. Here is the abstract.

Virtually all writers on the subject of the right to bear arms, both pro and con, simply assume, without any evidence, that the term “going armed” in the 1328 English Statute of Northampton meant carrying weapons. A review of the royal decrees and statutes contemporaneously issued and enacted demonstrates, however, that “going armed” did not equate to carrying weapons and certainly did not refer to firearms -- rather, “going armed” was a medieval term of art which referred to wearing body-protecting armour.

Download the article from SSRN at the link.

Law, Gender & Popular Culture: Representations of Female Legal Professionals in Contemporary Arab Popular Culture, December 9 2021 @ljewel

Law, Gender & Popular Culture: Representations of Female Legal Professionals in Contemporary Arab Popular Culture

A hybrid round-table discussion by the Arab-German Young Academy of Sciences and Humanities

By bringing together perspectives from legal, media, and literary studies, this hybrid round table will explore and discuss how Arab popular culture (film, television, and literature) imagines gender, law, and women in the legal profession.

 

To participate online please register at https://bit.ly/30dAAbe.

 

By attending the event you confirm that you have read and agreed to Zoom’s Terms of Service and Privacy Policy.

 

Participants:

Swethaa S. Ballakrishnen, University of California, Irvine School of Law

Lucy Jewel, University of Tennessee College of Law

Enass Khansa, American University of Beirut

Hania A.M. Nashef, American University of Sharjah

 

Hosted by:

Lena-Maria Möller, Max Planck Institute for Comparative and International Private Law / Visiting Scholar, Legal Studies Program, NYU Abu Dhabi

 

Date: Thursday, 9 December 2021, 5-7 pm Gulf Standard Time.

Venue: New York University Abu Dhabi and online via Zoom (link will be provided upon registration)

 

Allen on The Emotional Woman @alenamallen @UARKLaw @NCLRev

Alena M. Allen, University of Arkansas School of Law, is publishing The Emotional Woman in the North Carolina Law Review. Here is the abstract.

The emotional woman is nonexistent in the common law, but the reasonable man is an indelible figure. Conceptions of reasonableness permeate nearly every aspect of the law while emotion is largely absent. The reasonable man determines negligence. Reasonable minds determine whether a contract has been formed. Reasonable doubt stands between freedom and incarceration. The primacy of reason in American jurisprudence is so engrained that it is rarely questioned or critiqued. Although it seems axiomatic to equate socially desirable conduct with reasonableness, this Article dissects how reasonableness became a central tenet of American law and argues that continued adherence to reasonableness as the optimal standard for evaluating conduct entrenches value-laden androcentric norms. It further argues that, in practice, reasonableness is an ill-defined construct masquerading as an objective standard. As such, instead of arguing for a reasonable woman standard of care, this Article departs from the standard feminist critique and argues that reasonableness itself is inherently androcentric. Thus, it argues that reasonableness is not the optimal standard for evaluating tortious or criminal conduct. Using current social science research, this Article argues that emotion is crucial to sound decision-making and proffers the emotional woman standard as a superior alternative to the reasonable man. Lastly, this Article discusses implications for how the emotional woman standard furthers existing paradigms of feminist discourse.

Download the article from SSRN at the link.

Roux on The Role of Legal-Professional Culture in Constitutional Interpretation

Theunis Robert Roux, University of New South Wales, has published The Role of Legal-Professional Culture in Constitutional Interpretation. Here is the abstract.

Apex courts in liberal democracies deploy a broadly shared set of reasoning methods when interpreting constitutions. And yet, judgments in constitutional law are instantly recognisable as products of a particular legal-professional culture. While they do not determine outcomes, this suggests, cultural factors supply a shared repertoire of arguments that give each decision on constitutional law a distinctive local flavour. This paper first illustrates this point through a close reading of the Australian High Court decision in the Same-Sex Marriage Case. It then pivots 180 degrees to argue that, despite that decision's immersion in the idiom of Australian legalism, it possesses some qualities that are not so very unique to Australia. The High Court's reluctance to offer 'a single, all-embracing theory of constitutional interpretation', for example, is shared by a number of other apex courts. Despite the different legal-cultural settings in which they operate, this indicates, courts have responded in similar ways to shared institutional challenges. The culturally idiosyncratic nature of constitutional interpretation, the paper concludes, is not a barrier to comparative research on this topic. Rather, sensitivity to cultural variation is a necessary step in moving towards whatever general propositions might be made.

Download the article from SSRN at the link.

Christopher Brown on The Borders of Utopia: Science Fiction and the Limits of the Legal Imagination, University of Montreal School of Law, November 11, 2021 https://www.cyberjustice.ca/2021/10/25/the-boarders-of-utopia-science-fiction-and-the-limits-of-the-legal-imagination https://www.cyberjustice.ca/2021/10/25/the-boarders-of-utopia-science-fiction-and-the-limits-of-the-legal-imagination @NB_Chris @CyberjusticeLab @droitumontreal

 On November 11, 2021, Christopher Brown, Philip K. Dick, John W. Campbell, and World Fantasy Ward-nominated author of Tropic of Kansas, Rule of Capture, and Failed State, will be speaking on The Borders of Utopia: Science Fiction and the Limits of the Legal Imagination, November 11, 2021 at 4:30 (EST), at the Cyberjustice Lab, University of Montreal School of Law.

More here. 

Hamilton on The Contractual and Tax Implications of The Phantom of the Opera

Charles Edward Andrew Hamilton, IV, University of Groningen Faculty of Law, has published The Contractual and Tax Implications of The Phantom of the Opera at The Vanderbilt Journal of Entertainment and Technology Law Blog.

The substantive story of Gaston Leroux’s The Phantom of the Opera (Le Fantôme de l’Opéra) is largely about contract analysis and whether the managers and “the phantom” have had a “meeting of the minds”—consensus ad idem. The question is whether the Phantom and the Managers reached a “meeting of the minds” or manifested mutual assent in their contractual remedies. In short, the plot surrounds new managerial team—Armand Moncharmin and Firmin Richard—at the Palais Garnier have refused to abide by the former managerial team’s contract with the Phantom as successors in kind. The relevant legal facts are that Armand Moncharmin and Firmin Richard have assumed the roles of managers of the Palais Garnier. Gaston Leroux and the Phantom himself often point out that the managers have a lack of experience. Indeed, the Phantom appears to have similar access to private information that was at issue in the Supreme Court case Laidlaw v. Organ (1817) and which would be allowed to .be used in a negotiation over the mangers.

Download the essay from SSRN at the link. 

Rice on Repugnant Precedents and the Court of History @daniel_b_rice

Daniel B. Rice, Duke University School of Law, has published Repugnnant Precedents and the Court of History. Here is the abstract.

The Supreme Court’s precedents continue to tolerate many practices that would shock modern sensibilities. Eugenic sterilization, race-based naturalization, forced labor on public roads, the conscription of child soldiers, and the exclusion of non-heterosexual immigrants all remain ostensibly valid policy options. Yet the Court lacks standard tools for phasing out decisions that offend our national character. The very societal shifts that have reoriented our normative universe have also insulated most repugnant precedents from direct attack. And the familiar stare decisis factors cannot satisfactorily explain what ails culturally outmoded decisions. Even for Justices inclined to condemn these cases in less clinical terms, it is unclear what qualifies courts to make universalist claims about America’s deepest values. The Court recently sidestepped these difficulties by insisting that one of its most reviled decisions had been “overruled in the court of history.” In substituting rhetorical flair for analytical precision, however, the court-of-history trope threatens to destabilize the Court’s doctrines of horizontal and vertical precedent. This Article urges greater normality in implementing perceptions of national ethos. It first defends the inquiry’s legitimacy by recovering a longstanding judicial tradition of pronouncing specific practices abhorrent to American values. It then underscores the project’s stakes by identifying an assortment of precedents that trudge along as ethical outcasts. After highlighting various tangible and expressive harms that these decisions can still inflict, I propose that the Court integrate its ethical judgments into the existing stare decisis framework. And I challenge the Court’s presumed incapacity to dislodge vestigial precedents. These relics may be difficult to pry loose, but we are not stuck with them forever.

Download the article from SSRN at the link.

Warden on Disenchanting Justice Holmes @LSULawCenter @TulaneLaw @UIllLRev

Derek Warden, Law Clerk, Louisiana Supreme Court, is publishing Disenchanting Justice Holmes, in volume 2021 of the University of Illinois Law Review. Here is the abstract.

Over the last several years, the United States has seen the “cancellation” of numerous public figures. While the concept of “cancel culture” is of great concern to society, bringing recognition to the failures of public figures and powerful people is important. Truth should always be spoken to power. However, it is disheartening when those who have committed and encouraged some of the most heinous actions are continuously venerated by powerful institutions. The purpose of this letter is to encourage the discontinuation of such veneration for one jurist, Justice Holmes. I do not mean to “cancel” Justice Holmes in the modern sense, but to disenchant him. By this I mean to pull back the curtain, expose the wizard for the man he is; and, based on one opinion, show that such continued infatuation with Justice Holmes is improper. Of course, Justice Holmes is not the only Justice who has failed society. We have seen the Supreme Court fail on numerous occasions. Many of the Court’s worst decisions are deemed to have been wrong the day they were decided. This so-called “anticanon” represents America at its worst. We know these cases by the names of the litigants: Dred Scott, Plessy, Korematsu, and Lochner. Conspicuously absent from that typical pantheon of error is perhaps the worst of all, second only to Dred Scott—Buck v. Bell. Buck is the case which prompts this essay.

Download the essay from SSRN at the link.

ICYMI: Francois Ost, Nouveaux contes juridiques (Dalloz, 2021) @Dalloz_action

ICYMI: François Ost, Nouveaux contes juridiques (Dalloz, 2021). Here from the publisher's website is a description of the book's contents.

Il était une fois le droit... Faire du droit en racontant des histoires, tel est le pari de ce livre qui exploite toutes les variétés du genre narratif, depuis le récit historique jusqu'au conte fantastique, en passant par le thriller policier, la dystopie et la fable animalière. Huit récits qui font réfléchir au droit en posant d'étranges questions. Entre amour absolu et violence déchaînée, quelle place pour la justice romaine de Pilate dans le procès de Jésus ? Qui a volé les Juges intègres des frères Van Eyck ? Et que penser de la disparition durable de juges intègres? Que se serait-il passé si Robinson Crusoé, parti du Brésil en quête d'esclaves africains pour ses plantations, avait fait naufrage non pas lors du voyage aller mais au retour ? On se demande aujourd'hui si les animaux devraient avoir des droits et se voir reconnaître une personnalité juridique. Et si c'étaient finalement les hommes qui avaient perdu leurs corps ? Les animaux révoltés, rassemblés en congrès, se posent la question. Rien ne va plus au royaume de Nimportou, ravagé notamment par les conséquences d'une pandémie incontrôlable ; divers autocrates se mettent au travail : Picflouz, Programmor, Cosinus, Diafoirus, Inquisitor... mais leurs recettes plongent le pays dans des malheurs plus grands encore. Et si on essayait le droit ? Un manuscrit introuvable, une administration kafkaïenne, un vieux professeur égaré... Où conduit, dans la vieille ville de Coimbra, cette quête improbable des fondements du droit ? Des livres qui disparaissent, certains qui s'invitent aux places d'honneur, d'autres encore qui se regroupent en d'étranges coalitions... Quel message cette bibliothèque juridique libérée adresse-t-elle à son propriétaire ?

 

ICYMI: Carlo Pelloso: Democracies and Republics Between Past and Future: From the Athenian Agora to e-Democracy, from the Roman Republic to Negative Power (Routledge, 2021) @UniVersona @routledgebooks

Carlo Pelloso, Univesrity of Verona, has published  Democracies and Republics Between Past and Future: From the Athenian Agora to e-Democracy, from the Roman Republic to Negative Power (Routledge, 2021). Here from the publisher's website is a description of the book's contents.

Democracies and Republics Between Past and Future focuses on the concepts of direct rule by the people in early and classical Athens and the tribunician negative power in early republican Rome – and through this lens explores current political issues in our society.　　 This volume guides readers through the current constitutional systems in the Western world in an attempt to decipher the reasons and extent of the decline of the nexus between ‘elections’ and ‘democracy’; it then turns its gaze to the past in search of some answers for the future, examining early and classical Athens and, finally, early republican Rome. In discussing Athens, it explores how an authentic ‘power of the people’ is more than voting and something rather different from representation, while the examples of Rome demonstrate – thanks to the paradigm of the so-called tribunician power – the importance of institutionalised mechanisms of dialogic conflict between competing powers.　　 This book will be of primary interest to scholars of legal history, both recent and ancient, and to classicists, but also to the more general reader with an interest in politics and history.

 

Call For Papers: 2022 Law and Humanities Junior Scholars Workshop: Deadline December 15, 2021

 2022 LAW AND HUMANITIES JUNIOR SCHOLARS WORKSHOP Call for Papers

Columbia Law School, Georgetown University Law School, Stanford Law School, UCLA School of Law, the University of Pennsylvania, and the University of Southern California Center for Law, History, and Culture invite submissions for the 21st meeting of the Law and Humanities Junior Scholars Workshop, to be held at USC School of Law in Los Angeles, CA, on Tuesday, May 24, and Wednesday, May 25, 2022.

We plan to hold this Workshop in person, subject always to the possibility that changing conditions may dictate otherwise. We are carefully monitoring the local public health conditions and will follow the guidelines specified by the Centers for Disease Control, the Los Angeles County Department of Public Health, and the university regarding public gatherings and mandatory masks for indoor gatherings. All those attending in person must be vaccinated. We will determine and announce well in advance of the Workshop whether the format must be switched from in-person to online.

ABOUT THE WORKSHOP

The paper competition is open to untenured professors, advanced graduate students, post-doctoral scholars, and independent scholars working in law and the humanities. In addition to drawing from numerous humanistic fields, we welcome critical, qualitative work in the social sciences. We are especially interested in submissions from members of traditionally underrepresented groups. We welcome submissions from those working at regional and teaching-intensive institutions.

Based on anonymous evaluation by an interdisciplinary selection committee, between five and ten papers will be chosen for presentation at the Workshop in May. At the Workshop, two senior scholars will comment on each paper. Commentators and other Workshop participants will be asked to focus specifically on the strengths and weaknesses of the selected scholarly projects, with respect to subject and methodology. The selected papers will then serve as the basis for a larger conversation among all the participants about the evolving standards by which we judge excellence and creativity in interdisciplinary scholarship, as well as about the nature of interdisciplinarity itself.

The selected papers will appear in a special issue of the Legal Scholarship Network; there is no other publication commitment. (We will accommodate the wishes of chosen authors who prefer not to have their paper posted publicly with us because of publication commitments to other journals.)

The Workshop will pay the domestic travel and hotel expenses of authors whose papers are selected for presentation. For authors requiring airline travel from outside the United States, the Workshop will cover such travel expenses up to a maximum of $1250. For those who, because of financial or health concerns, are unable to attend the Workshop in person, the Committee will consider providing for online participation in the Workshop via Zoom.

SUBMISSION INSTRUCTIONS

Papers must be works-in-progress that do not exceed 15,000 words in length (including footnotes/ endnotes); most papers selected for inclusion in recent years have been at least 10,000 words long. An abstract of no more than 200 words must also be included with the paper submission. A dissertation chapter may be submitted, but we strongly suggest that it be edited so as to stand alone as a piece of work with its own integrity. A paper that has been submitted for publication is eligible for selection so long as it will not be in galley proofs or in print at the time of the Workshop; it is important that authors still be in a position at the time of the Workshop to consider comments they receive there and to incorporate them as they think appropriate in their revisions.

We ask that those submitting papers be careful to omit or redact any information in the body of the paper that might serve to identify them, as we adhere to an anonymous or “blind” selection process.

Submissions (in Microsoft Word—no pdf files, please) will be accepted until December 15, 2021, and should be sent by e-mail to: juniorscholarsworkshop@sas.upenn.edu. Please be sure to include your name, institutional affiliation (if any), and phone and email contact information in your covering email, not in the paper itself.

For more information, please send an email inquiry to juniorscholarsworkshop@sas.upenn.edu.

Aomar Boum, UCLA, Anthropology
Martha Jones, Johns Hopkins University, History
Naomi Mezey, Georgetown University, Law
Sherally Munshi, Georgetown University, Law
Melynda Price, University of Kentucky, Law
Norman Spaulding, Stanford University, Law
Clyde Spillenger, UCLA, Law
Simon Stern, University of Toronto, Law & English 

Nomi Stolzenberg, University of Southern California, Law

Program Committee, 2022 Law and Humanities Junior Scholars Workshop

The Law and Humanities Junior Scholars Workshop is committed to Anti-Racism both inside and outside the academy.