June 17, 2021

Ojo and Ekhator on Precolonial Legal System in Africa: An Assessment of Indigenous Laws of Benin Before 1897 @Goser_ovbiedo

Idahosa Osagie Ojo, Benson Idahosa University, and Egahosa O. Ekhator, Derby Law School, have published Pre-Colonial Legal System in Africa: An Assessment of Indigenous Laws of Benin Kingdom Before 1897 at 5 Umewaen: Journal of Benin and Edo Studies 38-73 (2020).
There were salient novelties in the legal system of the Benin Kingdom and other areas in pre-colonial Africa that promoted justice, peace, and order among people and communities. Special provisions such as collective responsibility in legal personality, the law of primogeniture, the fusion of laws and religion in theory and practice, and the recognition of societal status and political position in legal proceedings amongst other legal concepts were incorporated into the body of laws in Benin. Previous intellectual efforts center on the political, economic, and social aspects of history, largely neglecting these legal dynamics and other vital areas of the kingdom’s organization. Hence, this study analyzes indigenous legal concepts in the Benin Kingdom using several varieties of primary and secondary sources. It contends that Benin, like other African societies, developed practical and useful legal concepts that helped in the consolidation of peace and harmony throughout its length and breadth, and that these indigenous Benin legal concepts were in force till 1897.
Download the article from SSRN at the link.

June 14, 2021

Banović on John Austin's Analytical Jurisprudence: The Empirical-Rationalist Legal Positivism

Damir Banović, University of Sarajevo Faculty of Law, is publishing About John Austin’s Analytical Jurisprudence: The Empirical-Rationalist Legal Positivism in the International and Comparative Law Review (2021). Here is the abstract.
This article deals with analytical jurisprudence topics presented in John Austin’s work, his predecessors, and its influence on the contemporary theory of law. The article analyses his analytical method, understanding of what the method implies, and its application in understanding law as a social phenomenon. Not only does the article analyse the law phenomenon, but it also presents his views on similar phenomena in law, such as international and constitutional law, the phenomenon of sovereignty and a sovereign, and the principle of general utility as one of the moral principles. His theory of law was one of the most significant theoretical approaches in England of the 19th century, and also constituted the baseline for new conceptions and the basis of critical analyses of later positive law theories. Moreover, his work provides a solid ground for explanations of individual branches of law, especially criminal law. Finally, the article also presents a critical analysis of his approach, useful and important findings, and the perspectives for further development of the theory of law, especially in the domain of his analytical, empirically oriented and descriptive method.
Download the article from SSRN at the link.

Call For Papers: Art/Law Network, Summer Seminar, HOMEing, June, July, August 2021 @ArtLawNetwork

 

The Art / Law Network is holding a Summer Seminar Series, HOMEing, in June, July and August. There are two themes

  • Migrants in Art
  • Art, Law and the Border

It has a call for papers/submissions open for art works and papers on the two themes: https://artlawnetwork.org/event/aln-homeing-summer-series-projects-and-call-for-submissions-14-june-2021/.



June 11, 2021

Call For Applications: Institute for Interdisciplinary Legal Studies, Visiting Fellows 2022 @UniLuzern

The Institute for Interdisciplinary Legal Studies has posted this Call For Applications for Visiting Fellows for 2022.

Institute for Interdisciplinary Legal Studies – lucernaiuris

Call for Applications: Visiting Fellows 2022

 

The Institute for Interdisciplinary Legal Studies at the University of Lucerne invites applications for our Visiting Fellows Programme 2022.

 

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

 

We particularly welcome applications from those working on projects that connect with our own core interests. Currently, these include:

 

  • Legal Futures and Futurity
  • Law and New Technologies
  • Law and the Life Sciences
  • Theories of Justice and Histories of the Judiciary
  • Law, Art, Politics

 

The deadline for submissions is Thursday 30 September 2021.

 

Further details on eligibility, application process and assessment criteria are available here.

 

Please direct any questions to Dr. Steven Howe (steven.howe@unilu.ch).

June 10, 2021

Koh on Univitalism and American Law @BCLAW

Steven Arrigg Koh, Boston College Law School, has published Univitalism and American Law. Here is the abstract.
Curiously, the English language lacks a word for “the belief that human beings only live once.” This Essay, as an initial matter, coins this term: univitalism (from the Latin, "uni-" and "vita"). Univitalism is a long-held belief in the United States, prevalent amongst those with both sacred and secular views. It is so common, in fact, that is assumed by American Jews, Christians, Muslims, atheists, and agnostics alike — and thus integral to the reasoning of U.S. legal and political decisionmakers. By contrast, many Eastern societies and a significant minority of Americans subscribe to a “multivitalist” worldview, wherein individuals are reborn. This Essay historically surveys how univitalism has shaped American law and policy; it also considers how, in turn, American law reifies univitalism. In particular, this Essay will show how univitalism is integral to contemporary U.S. substantive criminal law, sentencing, and broader theories of punishment. A contrasting comparative view — adopted in certain international criminal tribunals and foreign criminal legal jurisdictions — will underscore this analysis. This Essay will argue that univitalism places particular emphasis on retribution and may exacerbate punitiveness in American criminal law.
The full text is not available from SSRN.

June 9, 2021

Stern on Proximate Cause in Legal Historiography @ArsScripta @theory_history

Simon Stern, University of Toronto Faculty of Law, has published Proximate Cause in Legal Historiography at 60 History & Theory 363 (2021). 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 more attenuated roles, 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.

June 4, 2021

Biswas on American Feminism in Formation: Margaret Fuller's Women in the Nineteenth Century and Louisa May Alcott's Little Women @IITHyderabad

Shreosi Biswas, IIT Hyderabad, has published American Feminism in Formation: Margaret Fuller's Women in the Nineteenth Century and Louisa May Alcott's Little Women. Here is the abstract.
In the last one hundred years or so, the theory and praxis of feminism have almost touched the zenith although, even in the late nineteenth and early twentieth century, feminism was only a neglected theoretical perspective, due perhaps to the fact that it liberally as well as radically challenged the mainstream patriarchal conventions. Debates and discussions were there, stray demands for rights of women were also raised here and there, a limited number of women in different countries of the world might also have risen to very high positions of power and authority, but till the last decade of the eighteenth century there was no consistent and dedicated writing to provide support to the women’s causes. My intention in this paper is to examine and evaluate the contribution of Margaret Fuller Ossoli and Louisa May Alcott in giving the necessary philosophical-theoretical support and literary justification to feminism during its formative period in America through a close study of Women in the Nineteenth Century (1845) and Little Women (1868). An exploration of the philosophical-literary back-ups which ignited the flourishing of feminism in America, even before the term ‘feminism’ was coined, is both interesting and insightful.
Download the article from SSRN at the link.

June 1, 2021

Manners on Executive Power and the Rule of Law in the Marshall Court: A Re-reading of Little v. Barreme and Murray v. Schooner Charming Betsy @Jane_C_Manners

Jane Manners, Columbia Law School, is publishing Executive Power and the Rule of Law in the Marshall Court: A Re-Reading of Little v. Barreme and Murray v. Schooner Charming Betsy in volume 89 of the Fordham Law Review (2021). Here is the abstract.
This Essay uses two 1804 opinions by Chief Justice John Marshall to explicate a world in which understandings of executive power and the rule of law were very different from those that predominate today. Scholars have misread Little v. Barreme and Murray v. Schooner Charming Betsy, this Essay argues, because they apply modern assumptions about the balance of power between Congress and the executive that do not fit the Marshall Court’s constitutional vision. Contemporary interpretations read Little for the propositions that the president’s inherent wartime power may be limited by statute and that early American jurists rejected officers’ “good faith” defenses to liability for tortious acts. But the opinion in fact reflects the Marshall Court’s view that, in an undeclared war, the president could not act at all unless authorized by Congress and that under no circumstances could the president give an officer a right to act where Congress had not. Charming Betsy, meanwhile, is known today for the “Charming Betsy canon”: Marshall’s assertion that wherever possible, courts ought to interpret the laws of Congress to accord with international law. In its historical context, however, the case illustrates Marshall’s view of the law of nations not as an external constraint on sovereignty—a common understanding of international law’s role today—but as an aspect of the rule of law critical to preserving the proper allocation of powers between Congress and the president. Indeed, read together, these cases show Marshall using the law of nations to reinforce a tenet central to the separation of powers in the new republic: that only Congress could alter the nation’s war footing. Through Little and Charming Betsy, the Marshall Court sought to foreclose Congress’s efforts to abdicate its responsibility to authorize acts of war and thus to underscore the constitutional balance that placed the war-making and lawmaking power not with the courts, not with the executive, but with Congress.
Download the essay from SSRN at the link.

Call For Papers: Political Imagination and Utopian Energies in Central and Eastern Europe, Faculty of Law, Charles University, September 16-17, 2021

 From Jan Géryk Faculty of Law, Charles Unversity

I would like to invite you to the 13th CEE Forum of Young Legal, Political, and Social Theorists which will be held on September 16-17 in Prague. The topic is "Political Imagination and Utopian Energies in Central and Eastern Europe". You can find the full Call for Papers here:

 

The deadline for sending your abstracts is on June 6, but since we use this mailing list as a channel quite late it is enough to write us that you are interested and the topic of your paper until June 6 and then have time for sending a full abstract until June 12.

 

Our contact email is ceef2021prague@email.cz

 

Best wishes, Jan Géryk Faculty of Law, Charles Unversity


Marinotti and Lubin on The Law of the Upload @JoaoMarinotti @AsafLubin

João Marinotti, Center for Law, Society and Culture, Indiana University Maurer School of Law; Information Society Project, Yale Law School; Center for Intellectual Property Research, Indiana University Maurer School of Law; The City University of New York - The Graduate Center, City University of New York, and Asaf Lubin, Indiana University Maurer School of Law; Berkman Klein Center for Internet & Society; Yale University - Information Society Project; Federmann Cybersecurity Center, Hebrew University of Jerusalem Faculty of Law have published The Law of the Upload as Indiana Legal Studies Research Paper No. 451. Here is the abstract.
In April 2020, Amazon released a new comedy series called “Upload.” The show extrapolates a future in which human consciousness is successfully simulated in silico. In this world, individuals can pay to be “uploaded” into a series of competing digital afterlives. When uploaded, human consciousness is converted into data and executable code, which can be edited, reset, throttled, or even deleted depending on each upload’s membership plan and payment status. The show breaks the boundaries between reality and virtual reality, consciousness and artificial intelligence, and even life and afterlife, entangling various legal questions in novel ways. By addressing three of these legal issues, we hope to highlight how science fiction may help launch a more nuanced conversation about what is artificial in artificial intelligence, what is virtual in virtual reality, and what is digital in digital rights. We argue that becoming early adopters of a new reconceptualized language around “us” and “them”, the “self” and the “other,” can perhaps future proof our society from the technological perils that await us.
Download the paper from SSRN at the link.

May 27, 2021

Tillman on What Oath (if Any) Jacob Henry Took in 1809 @SethBTillman

Seth Barrett Tillman, National University of Ireland, Maynooth (NUI Maynooth), Faculty of Law, has published What Oath (if Any) Did Jacob Henry Take in 1809?: The Problem of Conceptual Confusion Between State Religious Tests and Religious Test Oaths. Here is the abstract.
The Jacob Henry literature has been primarily concerned with two questions. First, why did the members of the North Carolina House of Commons on December 6, 1809 vote against Mills’s motion to vacate Henry’s seat? That is, what motivated the members—in the sense of politics, partisanship, and personalities—to vote as they did? Likewise, what constitutional or other legal or policy rationales (if any) did the members put forward to explain their votes? A surprising number of very different views have been put forward. Second, what did Henry’s victory against purported religious intolerance mean to his contemporaries and later generations? This Article addresses a different set of (albeit related) questions. The focus of this Article is not on what happened on December 5 and 6, 1809 and why the members of the North Carolina House of Commons voted as they did. Instead, the focus of this Article is on what happened on November 20, 1809—in other words, what legislative oath (if any) did Jacob Henry actually take? Second, how have later historians and legal commentators described and distorted our understanding of the events of November 20, 1809? And, third, why did the December 6, 1809 debate on the motion veer so far from any substantial discussion of the actual underlying events of November 20, 1809? Admittedly, this third question cannot be answered with clarity. A PDF is available upon request.
The full text is available from SSRN at the link.

Call For Proposals: Ecocide/Speciesism: Legislating Hierarchy, Interdependence, Death (online stream)

Call for Proposals

Critical Legal Conference, University of Dundee, 2–4September 2021

ECOCIDE/SPECIESISM: LEGISLATING HIERARCHY, INTERDEPENDENCE, DEATH (online stream)

 

The once oak trunk now your coffee table; the once bouncy calf now your steak; the once mink mother now your fur coat; the anchovy tribe now your omega-3 supplement. Our lives consist of corpses. Speciesism, as a form of discrimination, manifests as violence against “inferior” non-humans. Our speciesist beliefs and institutions are currently driving ecocides around the world. Just like racism, sexism, or colonialism, speciesism renders certain lives inferior, thus suited for discrimination and subjugation. Jurisprudence is crucial to the environmental crisis: law is shaped by what we consider normal and it determines what we normalize. The norm now remains the massive killing, torture, exploitation of non-humans for the benefit of humans. The myth of independence and autonomy pervasive in Western liberal democracies has supplanted the awareness of inevitable (inter)dependence. Our ideal unity as co-guardians of our common home collides with the hierarchization of needs, rights and bodies, driven by speciesist logics. The life of some rests on the death of many; and law condones it.

 

QUESTIONS

 

What are the conscious, unconscious, subconscious factors skewing the way we ascribe worth to different forms of life? How are speciesist beliefs driving the rights–duties dialectic embedded in our laws and institutions? How can we conceptualize the aggregate and intergenerational damage, to humans and to nature, of the violence normalized against some forms of life to the benefit of others? Why has the neoliberal ethos rendered interdependence (in both life/prosperity and death/downfall) marginal to individual beliefs and to state responsibilities? What would critical earth jurisprudence look like?

 

FORMAT

 

Research papers (environmental law, animal law, criminal law, critical legal theory, green criminology, environmental ethics, ecopsychology, conservation psychology, animal thanatology, extinction studies) & creative submissions (electronic/acoustic composition, sound & video art, documentary, photography, collage, painting, drawing, poetry, flash fiction — if informed by research in the above disciplines). Creative pieces can be circulated in advance or presented during the panel (if the format permits); artists can discuss the creative process and how it relates to the stream thematic. This online stream consists of two/three panels of 90 min each (3 x 20 min presentations + 30 min discussion).

 

SUBMISSIONS

 

Please submit a 200-word proposal and 3 keywords to rimona.afana@yahoo.com. Deadline: 30 June 2021.

 

STREAM CONVENER

 

Rimona Afana, Visiting Scholar, Vulnerability Initiative, Emory University School of Law

 

May 26, 2021

Mannoni on Legislation on the Heritage Protection and Restoration of Antiquity: The Case of the Acropolis of Athens in the Nineteenth Century @CaFoscari

Chiara Mannoni, Ca' Foscari University of Venice, has published Legislation on the Heritage Protection and Restoration of Antiquity. The Case of the Acropolis of Athens in the Nineteenth Century as Max Planck Institute for Legal History and Legal Theory Research Paper Series No. 2021-08.
The analysis of the restoration carried out on the Acropolis of Athens between 1834 and 1875 offers the opportunity to evaluate the inferences of law and artistic taste on the reconstruction of one of the most famous monuments in the world. The ethical and aesthetic ambiguities of this early work are outlined through the study of Leo von Klenze’s memoranda on the refurbishment of the Acropolis temples, and the first laws on the protection of the Greek heritage issued by the Bavarian rulers in 1834 and 1837. In particular, the discussion will consider Klenze’s guidelines in relation to his conceptual inconsistencies about Romanticism and Neoclassicism, and within the implications – both juridical and aesthetic – of the edicts issued on the safeguard of antiquity in Greece. As will be argued, this early restoration not only would transform the Acropolis historical profile, but also affect the later refurbishment completed on the site in the twentieth century.
Download the article from SSRN at the link.

Bailey and White on Counterfeiting and Michigan: The Territorial and Early Statehood Years

Christopher A. Bailey and Nancy J. White, both of Central Michigan University, have published Counterfeiting and Michigan: The Territorial and Early Statehood Years at 47 Michigan Academician 71 (2021). Here is the abstract.
Counterfeiting crime was pervasive in the early years of Michigan. This paper describes and analyzes the environment of currency counterfeiting and the causes and effects of counterfeiting in Michigan in the early- and mid-nineteenth century. The laws and changes to the laws of Michigan relating to counterfeiting are also summarized. This is the first state-level historical narrative of nineteenth century counterfeiting in the United States, allowing us to investigate the economic environment and the counterfeiting and counterfeiting law outcomes of a particular state with its particular circumstances. This will give future researchers a basis for state-to-state comparisons of causes and outcomes of counterfeiting and counterfeiting law. In our conclusion, we provide a lengthy example list of future state-to-state counterfeiting comparisons that can be made.
The full text is not available from SSRN.

Peck on Standard Oil, Consolidation Coal, and the Roots of the Resource Curse in West Virginia @wuvlaw @WVlawreview

Alison Peck, West Virginia University of College of Law, is publishing Standard Oil, Consolidation Coal, and the Roots of the Resource Curse in West Virginia in the West Virginia Law Review. Here is the abstract.
Despite its natural resource wealth, West Virginia today ranks last among all states in its residents’ overall sense of well-being, a puzzle that economists call “the resource curse.” Much of West Virginia’s wealth, in the form of coal, oil, and gas, left the state in the late nineteenth and early twentieth centuries before the state could tax it. This discouraging story was not inevitable. In 1905, a Morgantown lawyer named George C. Baker led an effort to tax coal, oil, and gas leases as personal property that nearly succeeded. Baker and his allies, Governor William M.O. Dawson and Tax Commissioner Charles W. Dillon, won a high-profile court battle in 1905 against industries that had managed to defeat hot-button tax reform efforts in the legislature the year before. While powerful Standard Oil Company was resigned to comply as it focused on more threatening battles elsewhere, the coal industry resisted. Coal companies and their attorneys succeeded in diluting the new taxes nearly out of existence at the assessment stage under a theory that the West Virginia Supreme Court of Appeals would uphold in late 1906, changing course from its decision just a year earlier. Despite the efforts of Baker and his colleagues, the corporate reforms that prospered on the national level during the Progressive Era never took root in West Virginia. This history bears revisiting in the current debates over tax reform and the prospects for economic and social development of the state.
Download the article from SSRN at the link.

May 25, 2021

Bilder on Native Nations and the Convention @BCLAW @FordhamLRev

Mary Sarah Bilder, Boston College Law School, is publishing Without Doors: Native Nations and the Convention in volume 89 of the Fordham Law Review (2021). Here is the abstract.
The Constitution’s apparent textual near silence with respect to Native Nations is misleading. As this Article reveals, four representatives of Native Nations visited Philadelphia in the summer of 1787. Their visit ensured that the Constitution secured the general government’s treaty authority with Native Nations and decisively barred state claims of authority. But, the visits also threatened to disrupt Congress’s passage of the Northwest Ordinance and the vision of nationally sanctioned white settlement. In the process of successfully preventing the representatives from reaching Congress, Secretary at War Henry Knox developed the central tenets of what would become the George Washington administration’s early Indian policy: an acceptance of Native Nation sovereignty, disapproval of unauthorized white encroachment, and an attempt to discourage Native Nations from sending additional representatives. In addition to emphasizing the strong national federal government role and Native Nation sovereignty, this history provides evidence that the Framers’ generation without doors—outside the Convention—critically affected the creation of the Constitution as an instrument and a system of government. Recovering the visits of the deputies to Philadelphia in 1787 and the promises they received, including Washington’s handshake, suggests that the United States today should reaffirm the right and the importance of Native Nations sending deputies to Congress.
Download the article from SSRN at the link.

McNeil on L’émergence d’une monarchie française indépendante, 1100-1314 : le rejet de la suprématie papale Popes and Kings: The Struggle for Supremacy in Medieval Europe @OsgoodeNews

Kent McNeil, York University, Osgoode Hall Law School, is publishing L’émergence d’une monarchie française indépendante, 1100-1314 : le rejet de la suprématie papale/Popes and Kings: The Struggle for Supremacy in Medieval Europe as an Osgoode Legal Studies Research Paper. Here is the abstract.
French Abstract:La lutte entre le pape et les dirigeants séculiers d’Europe occidentale pour la suprématie politique était un thème dominant dans la période médiévale. Les rois de France et d’Angleterre en particulier ont affirmé leur autorité et leur indépendance, conduisant au développement des États-nations. Cette forme d’organisation politique a été normalisée en Europe par la Paix de Westphalie de 1648 et exportée dans le monde entier à travers le colonialisme. Cet article raconte l’histoire de la lutte pour le pouvoir entre le pape et les rois de France, dont les rois sont sortis victorieux, contribuant à la création du monde moderne. English Abstract:The struggle between the Pope and secular rulers of Western Europe for political supremacy was a dominant theme in the medieval world. The kings of France and England in particular asserted their authority and independence, leading to the development of nation states. This form of political organization was standardized in Europe in 1648 by the Peace of Westphalia and exported to the rest of the world through colonialism. This article tells the story of the power struggle between the Pope and the kings of France, from which the kings emerged victorious, contributing to the creation of the modern world. Note: Downloadable document in French.
Download the article from SSRN at the link.

May 24, 2021

Berger on Property to Race/Race to Property @bethanyrberger @UConnLaw

Bethany Berger, University of Connecticut School of Law, has published Property to Race/Race to Property. Here is the abstract.
In the United States, property and race shape each other. This has been true since colonization and is equally true today. First, property relationships shaped the distinct forms racism took for different racialized groups. Racism exists to explain and justify power and privilege of one group over another. But the goals of power and privilege vary across different groups, resulting in different stereotypes, legal and social barriers, and modes of control. This Article examines the racialization of African Americans, Indigenous peoples, ethnic Chinese, and racialized “off-White” ethnic groups to reveal the crucial role that a group’s relationship to valued resources plays in its distinct trajectory of racism. Second, racial relationships shaped property law for everyone in the United States. The power to foreclose for debts, the power of local governments to zone, the public goods attached to residence, the scope of the welfare state’s “new property”—in these areas and many more, efforts to control, exclude, and take from racialized groups changed what property means today. This Article reveals the hidden histories of racially neutral rules and shows how they have undermined the security and equitable distribution of property for all. Today, property law and rhetoric are often used to undermine measures that would increase the security, affordability, and autonomy that justify property in the first place. Revealing the racial roots of modern property rules, I hope, will create space for reform to achieve the liberatory and egalitarian norms that undergird our commitment to property.
Download the article from SSRN at the link.

May 20, 2021

The IJLC Special Issue In Celebration of Peter Fitzpatrick and His Scholarship: Volume 17, No. 1 (March 2021) @IJLC_CUP

From David Sugarman, Professor Emeritus, Law School, Lancaster University, Senior Associate Research Fellow, Institute of Advanced Legal Studies, University of London, Senior Associate, Centre for Socio-Legal Studies, University of Oxford:

The International Journal of Law in Context has published a special issue in celebration of the late Peter Fitzpatrick and his scholarship. Professors Sugarman and Abdul Paliwala are the guest editors. 

 


 

PETER FITZPATRICK (19412020)

 





Peter Fitzpatrick (19412020) was a much-loved and inspirational scholar, and a wonderful friend and mentor. He contributed immeasurably to the intellectual, organisational and cultural life of post-colonial legal studies, critical legal studies, and law and the humanities fields he helped to consolidate. His remarkable influence, however, extends well beyond his scholarship. He taught and supervised an incredible number of people, amounting to two or even three generations of students and colleagues. And they all admire and adore him.

 

In this Special Issue, ten friends, former colleagues and students of Peters contribute new insights into his personal and professional development, and celebrate his life and many achievements. We begin with an essay that adds to what we already knew about Peters personal and professional biography, and assesses and clarifies his key ideas and their intersection with his ethics and lived experiences (Sugarman, in this issue). It provides a backdrop and context for the subsequent papers that elucidate Peters significant contribution to scholarship, engage with his ideas and illuminate specific junctures in his life. The issue ends with an edited transcript of Peters final seminar in February 2020 and addresses a variety of themes in his work, including his critique of H.L.A. Hart, his notion of slow reading, the relationship between theory and grounded engagement with people, the idea of community and relationality, the role of the critic, self-criticism, the impossibility of law, decoloniality, occidentalism, mythologies and governmentality, and the significance of narratives (Paliwala, in this issue).

 

We hope these papers convey something of the special person that was Peter: the person whose support as a supervisor and friend regularly exceeded the norm; his tireless innovation; his community building; his empathy towards outsidersand others; and his delightful individuality and sense of humour.

 

 

Editorial introduction

David Sugarman and Abdul Paliwala

 

Becoming Peter Fitzpatrick (19412020)

David Sugarman

 

Transformation

William Twining

 

Post-colonial attitudes and the relevance of incommensurability

Eve Darian-Smith

 

Not to save, but to encounter: Fitzpatrick as transnational jurisprudent

Sundhya Pahuja

 

Myth and concealment at colonial laws foundations

George Pavlich

 

Deconstruction, dissipation and death, and the casting-away of the law?

Upendra Baxi

 

A concise note on Peter Fitzpatricks Racism and the innocence of law

Patricia Tuitt

 

Improvising with Peter

Sara Ramshaw

 

How to do things with Foucault (legally)

Ben Golder

 

Ultimate conversation: Fitzpatrick at Warwick, February 2020

Abdul Paliwala



May 17, 2021

Adler on The Shifting Law of Sexual Speech: Rethinking Robert Mapplethorpe @nyulaw

Amy Adler, New York University of Law, is publishing The Shifting Law of Sexual Speech: Rethinking Robert Mapplethorpe in volume 2020 of the University of Chicago Legal Forum. Here is the abstract.
This Article explores the dramatic changes that have occurred over the last thirty years in the First Amendment doctrines governing sexual speech. As a prism through which to evaluate these changes, I consider the thirtieth anniversary of the landmark Robert Mapplethorpe trial, the first censorship prosecution against an art museum in the history of this country and the defining battle in the culture wars that roiled post-Reagan America. The target was the exhibition of formally beautiful, sexually hard-core photographs by Robert Mapplethorpe on view at a museum in Cincinnati. The controversy that erupted over those images—fueled by anxieties about AIDS, homosexuality, sadomasochism, race, government funding for the arts, and the vanishing boundary between art and pornography—spilled out of the courtroom into popular culture and into the halls of the United States Congress. I analyze the shifting trajectories over the years of the two legal doctrines that were at the center of the Mapplethorpe case—obscenity law and child pornography law—and I show the starkly divergent paths these two areas of law have taken. While obscenity law has receded in importance, and while the allegedly obscene photos from the trial have become prized in museums and in the art market, child pornography law has followed the opposite course. In contrast to the allegedly obscene pictures, which pose almost no legal risk today, the two photographs of children that were on trial have become more, not less, controversial over the past thirty years, to the point where curators are quietly reluctant to show these images at all. In my view, these photos now occupy a space of legal and moral uncertainty. What explains these differing legal and artistic trajectories? What happened to change the dynamics of showing these works? In tracing the divergent paths taken by these two doctrinal areas, I explore not only the stark changes in the law of sexual speech, but ultimately the mutually productive relationship between censorship law and culture. Free speech law governed this chapter in the culture wars, yet in surprising ways, the changing social norms unleashed by the culture wars have also governed free speech law.
Download the article from SSRN at the link.

May 13, 2021

Bandes on From Dragnet to Brooklyn 99: How Cop Shows Excuse, Exalt and Erase Police Brutality @BandesSusan @routledgebooks

Susan A. Bandes, DePaul University College of Law, is publishing From Dragnet to Brooklyn 99: How Cop Shows Excuse, Exalt and Erase Police Brutality in Routledge Handbook of Police Brutality in America (Thomas Aiello, ed., Routledge, 2022).
Cop shows originated as a literal “copoganda” effort: explicit partnerships with law enforcement agencies to transform the image of bumbling Keystone Cops into straight arrow Sergeant Joe Friday and lovable Andy Griffith. Though the explicit partnerships have faded away, the template they established has flourished, in part by adapting to changed times without challenging certain basic cop show verities — principally, the centrality of the police point of view. Police use of force, even when mistaken, is framed as essential, understandable, or forgivable: an act taken in the righteous pursuit of justice. These depictions matter. Portrayals of policing on TV — including fictional portrayals — exert enormous influence on public perceptions of how policing works and help shape both law and public policy. Part I traces the origins of the cop show. Part II illustrates how cop shows construct and transmit social norms that humanize and valorize law enforcement — both the job and those who do it. Part III considers the question of what constitutes police brutality. It concludes that cop shows fall short in depicting police brutality both in its narrower definition: action taken to degrade and dehumanize, and in its broader definition: the use of excessive force. Part IV explores the mechanisms by which police brutality and the harms it visits on people and communities are erased. Finally, Part V asks whether cop shows can do better. The chapter concludes that the failures of the genre to grapple with accountability and reform are not baked into the medium. The field is rife with possibilities for expanding the universe of empathic engagement, and for illustrating both the harms of police violence and the difficult tradeoffs inherent in the effort to reimagine public safety.
Download the essay from SSRN at the link.

Law Text Culture: Call For Proposals @law_text

 Law Text Culture is seeking proposals for special issues, as it does annually. Please send your proposals to the Managing Editor by May 1st of the year, for publication the following year. However, note that the next deadline for proposals (because of the COVID-19 emergency) is June 11, 2021 (for publication in 2022). More information is available here.

Newly Published: Stephanie Elsky, Custom, Common Law, and the Constitution of English Renaissance Literature (OUP, 2021) @srelsky @RhodesCollege @OxUniPress

Stephanie Elsky, Rhodes College, has published Custom, Common Law, and the Constitution of English Renaissance Literature (Oxford University Press, 2021). Here from the publisher's website is a description of the book's contents.
Custom, Common Law, and the Constitution of English Renaissance Literature argues that, ironically, custom was a supremely generative literary force for a range of Renaissance writers. Custom took on so much power because of its virtual synonymity with English common law, the increasingly dominant legal system that was also foundational to England's constitutionalist politics. The strange temporality assigned to legal custom, that is, its purported existence since 'time immemorial', furnished it with a unique and paradoxical capacity--to make new and foreign forms familiar. This volume shows that during a time when novelty was suspect, even insurrectionary, appeals to the widespread understanding of custom as a legal concept justified a startling array of fictive experiments. This is the first book to reveal fully the relationship between Renaissance literature and legal custom. It shows how writers were able to reimagine moments of historical and cultural rupture as continuity by appealing to the powerful belief that English legal custom persisted in the face of conquests by foreign powers. Custom, Common Law, and the Constitution of English Renaissance Literature thus challenges scholarly narratives in which Renaissance art breaks with a past it looks back upon longingly and instead argues that the period viewed its literature as imbued with the aura of the past. In this way, through experiments in rhetoric and form, literature unfolds the processes whereby custom gains its formidable and flexible political power. Custom, a key concept of legal and constitutionalist thought, shaped sixteenth-century literature, while this literature, in turn, transformed custom into an evocative mythopoetic.



 

Newly Published: Penelope Geng, Communal Justice in Shakespeare's England (University of Toronto Press, 2021) @penelope_hg @utpress

Penelope Geng, Department of English, Macalester College, has published Communal Justice in Shakespeare's England: Drama, Law, and Emotion (University of Toronto Press, 2021). Here from the publisher's website is a description of the book's contents.
The sixteenth century was a turning point for both law and drama. Relentless professionalization of the common law set off a cascade of lawyerly self-fashioning – resulting in blunt attacks on lay judgment. English playwrights, including Shakespeare, resisted the forces of legal professionalization by casting legal expertise as a detriment to moral feeling. They celebrated the ability of individuals, guided by conscience and working alongside members of their community, to restore justice. Playwrights used the participatory nature of drama to deepen public understanding of and respect for communal justice. In plays such as King Lear and Macbeth, lay people accomplish the work of magistracy: conscience structures legal judgment, neighbourly care shapes the coroner’s inquest, and communal emotions give meaning to confession and repentance. An original and deeply sourced study of early modern literature and law, Communal Justice in Shakespeare’s England contributes to a growing body of scholarship devoted to the study of how drama creates and sustains community. Penelope Geng brings together a wealth of imaginative and documentary archives – including plays, sermons, conscience literature, Protestant hagiographies, legal manuals, and medieval and early modern chronicles – proving that literature never simply reacts to legal events but always actively invents legal questions, establishes legal expectations, and shapes legal norms.


 




May 12, 2021

Davies on The Holmeses at the Supreme Court @GB2d @georgemasonlaw

Ross E. Davies, George Mason University School of Law; The Green Bag, is publishing The Holmeses at the Supreme Court in Holmes Reads Holmes: Reflections on the Real-Life Links Between the Jurist and the Detective in the Library, In the Courtroom, And on the Battlefield (The Lawbook Exchange, Ltd., 2020). Here is the abstract.
When Oliver Wendell Holmes, Jr., the famous real-life lawyer, arrived at the U.S. Supreme Court in 1902, he brought with him -- consciously or not, I do not know which -- Sherlock Holmes, the famous fictional detective. After that, Sherlock Holmes began appearing in many context involving the Supreme Court and individual Justices. This is a survey of those Holmesian-Sherlockian developments during the first three-and-a-half decades of the 20th century.
Download the essay from SSRN at the link.

Katz on "That Sty for Fattening Lawyers In/On the Bones of Honest Men": The Palace Court in Little Dorrit

Leslie Katz has published ‘That Sty for Fattening Lawyers In | On the Bones of Honest Men’: The Palace Court in Little Dorrit. Here is the abstract.
In Little Dorrit, there are two explicit references to the Palace Court, a court now extinct and largely forgotten. For three reasons, this paper discusses that court: first, to provide a context for the two explicit references to it in the novel; secondly, because the court plays a previously-unidentified significant role in the plot of the novel, even ignoring the novel’s two explicit references to it; and thirdly, because the court played a previously-unidentified significant role in Dickens’s own life, which role probably caused him to include in the novel the two references to the court as a kind of inside joke.
Download the article from SSRN at the link.

May 11, 2021

Baker and Green on the Non-Existence of a "Legal Name" @j_remy_green @AustinACBaker @HRLROnline

Austin A. Baker, Rutgers University, New Brunswick, and J. Remy Green, Cohen & Green, P.L.L.C.; Boston University School of Law, are publishing There is No Such Thing As a 'Legal Name': A Strange, Shared Delusion in volume 53 of the Columbia Human Rights Law Review (2021). Here is the abstract.
As far as federal, most state, and any other source of American law is concerned — as several courts in the early 20th Century put it: there is no such thing as a legal name. Yet, the phrase “legal name” appears everywhere, often beside threats of the penalties of perjury if you give something other than your legal name. For example, transgender people often hear “well, this has to say your ‘Legal Name,’” as an explanation for why they must be referred to by their deadname. One would assume, given the widespread use, surely must be a clear, unambiguous name that constitutes a person’s “legal name” — as well as “legal” reasons an organization insists on using that name, right? Well. Not so much. Thus, this Article seeks to highlight the (legal, moral, and philosophical) wrongness of that notion. We begin by explaining the practical significance of this mistake (the mistake being something like, “legal name means XYZ and only XYZ,” where “XYZ” means “name on [usually one and only one of: birth certificate/social security card/driver’s license/name change order]”). Then, we survey the “legal” status of names in various legal domains, highlighting that legal consensus tends to be that there is no one “correct legal name” for individuals (if anything, people often have many “legal” names). We then frame the wrongheaded notion that a person has a single clearly defined “legal name” as a harmful, collective delusion. So how do we rid ourselves of this delusion? We present a series of ready-to-cite conclusions about the current state of the law and introduce a normative framework for how institutions and individuals ought to choose between people’s various legal names when referring to them. Specifically, we introduce what we call the ‘Preference Norm’, according to we should defer to the legal name someone prefers absent some existent superseding legal reason not to. We argue that violating this norm in many cases constitutes a gross violation of someone’s dignity. We conclude by proposing a series of concrete legal suggestions which are meant capture the spirit of the Preference Norm.
Download the article from SSRN at the link.

Kelly-Ann Couzens on The Police Surgeon in Victorian Edinburgh: A Talk on May 21, 2021@ThomGiddens

From Jennifer Aston, University of Northumbria, an announcement of a very interesting talk:
On 21st May at 11am the Law and Humanities RIG is hosting a talk by Dr Kelly-Ann Couzens discussing the historical role of the police surgeon. The abstract is attached. Kelly’s work is fascinating and she always tells a good story so even if historical research is not your bag it is worth coming along to learn more about the history of this little appreciated official. Kelly’s talk is entitled:
 
‘The office is not a very popular one, and its duties are often disgusting’:
The Police Surgeon in Victorian Edinburgh
 
 
Dr Kelly-Ann Couzens is an Australian-born scholar, specialising in British legal and medical history. Most recently, Kelly has been working as a Postdoctoral Research Fellow in the School of Law at the University in Edinburgh. In 2019 she graduated with a PhD in history from the University of Western Australia and is currently writing her first book - The Victorian Police Surgeon: A History of Crime and Forensic Medicine - for Palgrave.
 
The talk will be hosted on Blackboard Collaborate. Here is the link.
 
https://eu.bbcollab.com/guest/0d2d60c529174da39052bdf46a9069b9
 Here is the abstract of Dr. Couzens' talk.
‘The office is not a very popular one, and its duties are often disgusting’:
The Police Surgeon in Victorian Edinburgh
 
*Dr Kelly-Ann Couzens, Adjunct Research Fellow, Department of History, University of Western Australia
 

Read her essay, "The Police Surgeon, Medico-Legal Networks and Criminal Investigation in Victorian Scotland," in Crime and the Construction of Forensic Objectivity from 1850 (Alison Adam, ed. Springer, 2020), at 125-159.

Despite the ever-growing body of scholarship chronicling the history of forensic medicine within Anglo-American justice systems, the role of the police surgeon – as expert witness – remains largely neglected by historians. This is particularly surprising, given the diverse duties this doctor was tasked with during the Victorian era. For as well as being required to attend to the proper health and fitness of local police forces, the surgeon of police was often the first medical practitioner to make contact with victims and perpetrators in the aftermath of a violent crime. Working alongside local officials and law enforcement and empowered to inspect and certify cases of suspicious injury, sexual assault, death and insanity, the police surgeon held a unique position within the complex system of Scottish criminal justice. Nowhere is this better seen, than in the forensic career of surgeon, Sir Henry Duncan Littlejohn. For over five decades, Littlejohn laboured at the coalface of Victorian forensic medicine, whilst employed as Edinburgh city’s surgeon of police. From his appointment to the role in 1854, to the close of his forensic career in 1908, Littlejohn testified as an expert witness in hundreds of cases within Scotland’s inferior and higher courts. While the close of the Victorian era would see him emerge as a giant of the Scottish medical profession, Littlejohn’s path to recognition and success had been arduous. The bloody, corporeal, and taxing nature of forensic work left the police surgeon poorly regarded by his medical brethren. Moreover, as an employee of the city council who was intimately associated with the reputation and practices of the Edinburgh police, the conduct of the police surgeon was not exempt from public scrutiny. Yet as an intelligent, ambitious, and canny practitioner, Littlejohn was able to use this unpopular office to his professional advantage. Through this public-facing position, and regular involvement in diverse forensic matters, Littlejohn established a robust and distinctive footing in the civic, legal, and medical hierarchies of nineteenth and twentieth-century Edinburgh.


H/T 

May 8, 2021

Hadley on Whitmill v. Warner Bros. and the Visibility of Cultural Appropriation Claims in Copyright Law @DrMarie_IP @uonlawschool

Marie Hadley, Newcastle Law School, University of Newcastle (Australia), has published Whitmill v Warner Bros. and the Visibility of Cultural Appropriation Claims in Copyright Law at 42 European Intellectual Property Review 223-229 (2020). Here is the abstract.
The Māori-inspired tattoo at the heart of the copyright infringement case of Whitmill v Warner Bros. has attracted allegations of cultural appropriation in Aotearoa/New Zealand. An examination of the Māori cultural appropriation claim that surrounds the tattoo and its invisibility throughout the Whitmill v Warner Bros. legal proceedings, shows how the legal system does not receive Indigenous cultural claims over the cultural imagery and arts styles that inspires outsider imagery as an intellectual property interest.
Download the article from SSRN at the link.

May 6, 2021

Stern on Biographical Evidence and the Law of Presumptions @ArsScripta @StanfordLawHist @J19Americanists @HedgehogsFoxes @ProjectMUSE

Simon Stern, University of Toronto, has published Biographical Evidence and the Law of Presumptions, at 9 J19: The Journal of Nineteenth-Century Americanists 83-89 (2021). Here is the abstract.
The rules and history of evidence law can provide useful resources for understanding the role of biographical evidence in literary criticism. During the nineteenth century, as evidence law became increasingly formalized, presumptions acquired a newfound significance as a device for allocating the burden of proof in evidentiary disputes. Presumptions generally operate by stipulating a legal conclusion that flows from a certain factual premise, such that the conclusion remains dispositive unless the opposing party offers witnesses or documents that contradict it. The result is a burden-shifting procedure that licenses a generic inference, assumed to flow from a factual premise but capable of being rebutted by specific details to the contrary. Literary critics often use biographical evidence in a similar fashion: in the absence of concrete information about a writer's beliefs or experiences, critics use some kinds of generic biographical information to draw inferences about the attitudes that someone with a certain background would have held. When more specific biographical details become available, they are used to confirm, refine, or contradict those inferences. Unlike lawyers, however, literary critics tend to use biographical information of all kinds—both generic and specific—to raise new inferences rather than to resolve questions definitively.

Bandes on Feeling and Thinking Like a Lawyer: Cognition, Emotion, and the Practice and Progress of Law @BandesSusan @DePaulLaw @FordhamLRev

Susan A. Bandes, DePaul University College of Law, is publishing Feeling and Thinking Like a Lawyer: Cognition, Emotion, and the Practice and Progress of Law in volume 89 of the Fordham Law Review (2021). Here is the abstract.
Generations of lawyers have been taught that thinking like a lawyer requires putting emotion aside. They are warned, for example, that anger will blind them to the facts as they really are. Yet cognitive science rejects the notion that emotion and reason are autonomous, warring spheres. Recently there has been increasing recognition of the harmful consequences of the narrow conception of “thinking like a lawyer” to lawyers’ well-being, but these consequences are generally portrayed as a necessary trade-off between the well-being of lawyers and the preservation of analytical rigor. This Essay will argue that the harm the narrow conception of “thinking like a lawyer” poses to lawyers’ well-being is not simply an ancillary issue or an unfortunate but necessary collateral consequence of engaging in rigorous, logical thinking. A conception of law that attempts to cordon off emotion is poorly suited to the complexities of legal practice and is inconsistent with modern knowledge about how legal, ethical, and moral reasoning—and indeed, legal change and reform—actually occur. This Essay will focus in particular on the emotion of anger and the consequences of attempting to banish it from the realm of legal reasoning.
Download the article from SSRN at the link.

May 5, 2021

Pollard on Some Oddities of the Law on Age: So You Thought You Reached 21 on Your 21st Birthday? @WilberforceCh

David Pollard, Wilberforce Chambers, has published Some Oddities of the Law on Age: So You Thought You Reached Age 21 on Your 21st Birthday? at 34 Trust Law International 21 (2020). Here is the abstract.
It can be very important to work out for legal purposes precisely how old someone is - what age have they reached? This paper looks at oddities in the law in England and Wales, contrasting the old common law position before the Family Law Reform Act 1969 took effect. This article looks at the history and some of the remaining nooks and crannies in this area, including:

 

● If a person is born on 29 February in a leap year, when is their birthday?

 

● What happens if a person is in a different time zone on his or her birthday? Do they reach the relevant age earlier (or later) than they would in the UK?

 

A story involving:

 

● a death in the first world war;

 

● theft of false teeth;

 

● a rear admiral serving his commutation notice a day before his birthday;

 

● The Pirates of Penzance;

 

● soldiers in Hong Kong; and

 

● a widow arguing that she had reached age 55 when her husband died (on the day before her birthday) because she was born early in the morning in the Philippines.
Download the article from SSRN at the link.

May 4, 2021

Means on Solving the "King Lear Problem" @UofSCLaw

Benajmin Means, University of South Carolina School of Law, is publishing Solving the 'King Lear Problem' in volume 12 of the U.C. Irvine L. Rev. Here is the abstract.
In Shakespeare’s play, King Lear, an aging ruler relinquished control to two of his three daughters. The succession failed miserably, destroying his family and destabilizing his kingdom. King Lear shows why few family businesses survive beyond three generations. Understanding Lear’s failure is crucial to avoiding Lear’s fate, whether the family business in question is a monarchy, a media empire, or a hardware store. The conventional wisdom is that Lear gave away his kingdom too soon and left himself vulnerable to predatory heirs. This has been referred to as the “King Lear Problem.” The conventional wisdom is wrong. Lear’s succession plan failed because he waited too long. Like Lear, those who control family businesses are often reluctant to step aside. For example, until he was well into his 90s, Sumner Redstone declared this his succession plan was to never die. The predictable consequence was litigation that engulfed the companies he controlled, including CBS and Viacom. Yet, despite its importance, the question of family-business succession has been neglected by legal scholars. Using King Lear as a framing device, this Article identifies obstacles to succession and shows how legislative initiatives, judicial intervention, and private ordering can facilitate the timely transfer of ownership and control across generations.
Download the article from SSRN at the link.

May 3, 2021

Mocsary and Person on A Brief History of Public Carry in Wyoming @uw_law

George A. Mocsary and Debora Person, both of the University of Wyoming College of Law, are publishing A Brief History of Public Carry in Wyoming in volume 21 of the Wyoming Law Review. Here is the abstract.
The history of gun carry laws in Wyoming parallels that of many other Western states, impacted the presence of great changes in national and regional events. From the time that Wyoming first became a territory in 1868, the treaties with the Cheyenne, the Crow, the Sioux, and the Arapahoe peoples distributing lands in Wyoming were in force. The Wind River Reservation was created for the Shoshones. The Homestead Act was recently passed, and the Pony Express, the Oregon Trail, the Overland Trail, the Mormon Trail, and the Bozeman Road crossed the plains and mountains of the territory. The Civil War had just ended and recovery was painful. The U.S. government had granted land to the Union Pacific for the transcontinental railroad, bringing with the project an itinerant population of railroad workers, many of whom were immigrants of minority status. Raids and skirmishes between settlers, migrants, and frustrated Indian Nations were increasing, and federal military outposts were built. The Territory of Wyoming encompassed an expansive geographical area, but the population was sparse. Vast prairies surrounded homes and towns, and the arm of justice was often far away. For the few short years that a portion of Wyoming existed as part of the Dakota Territory, the seat of government in Yankton, Dakota Territory, was 500 miles from Cheyenne, with limited access to the courts. Parts of Wyoming were lawless and dangerous, at times exceedingly so. At a time when guns were carried openly upon a person for business or for protection, carrying a concealed weapon came to be viewed with distrust. One Wyoming newspaper editor went so far as to infer intent to harm just by the act of arming oneself. “We take the point that the very act of arming oneself as a result of a quarrel or in anticipation of trouble constitutes malice and premeditation in a strict sense; that in view of the law prohibiting the carrying of concealed weapons, any person who has a grievance against another and arms himself is deserving of no sympathy when, as a result of his misdeeds, he is brought before the bar of justice.” In the 150 years since the creation of the territorial government, the State’s stance on gun carrying has undergone many adjustments. It shows that peaceable open firearm carriage has almost always been allowed everywhere, and always allowed somewhere, in Wyoming. Concealed carry, on the other hand, has a mixed history. It came to be held in disdain, and highly regulated, in the early part of Wyoming’s history. But it became the accepted and default mode of public carry in recent years. Wyoming today has some of the most liberal gun laws in the country. This essay surveys the development of these laws from positive, public-discourse, and comparative perspectives to the extent possible given the relative paucity of sources on the topic.
Download the article from SSRN at the link.

Ely on "All Temperate and Civilized Governments:" A Brief History of Just Compensation in the Nineteenth Century @BrighamKanner @vanderbiltlaw

James W. Ely, Vanderbilt University Law School, is publishing “All Temperate and Civilized Governments;” a Brief History of Just Compensation in the Nineteenth Century in volume 10 of the Brigham-Kanner Property Rights Journal. Here is the abstract.
This article explores the origins of the “just compensation” principle, the rationale behind the compensation requirement, and attempts to define the scope of “just compensation” throughout the Nineteenth Century. It traces the sources of the compensation requirement when property is acquired by eminent domain to English common law and the influence of natural law theorists. Courts in the United States early took the position that payment of compensation was a fundamental principle of universal application even if written constitutions contained no express compensation provision. The Fifth Amendment takings clause was seen as simply an affirmation of this overarching principle. The compensation norm was understood as a matter of “natural equity,” so that the burden of public projects was shared by the community as a whole rather than fall upon a single individual. Moreover, from the outset courts insisted that the determination of the amount of just compensation was a question for the judiciary, and that the legislature could not fix the measure of compensation. The article examines at length the evolution of “just compensation” during the Nineteenth Century. Where an entire parcel was taken, courts gravitated to the fair market value as the appropriate standard for compensation. Yet ascertaining fair market value posed difficulties, and many commentators charged that this standard did not provide adequate compensation to owners. Partial takings presented even more complicated problems. Lawmakers commonly mandated that in such cases the alleged benefits resulting from a project to the remaining land should be offset against the loss suffered by the owner, thus reducing any monetary compensation. Critics argued that supposed advantages were often illusory or inequitably benefited the entire community not the particular owner. The article probes the constitutional issues, as well as the confusion and uncertainty, arising from the offset of benefits. It also considers and questions the contested subsidy thesis, which holds that the offset of benefits amounted to a subsidy to transportation companies, especially railroads, by minimizing the expense of acquiring rights of way by eminent domain. Noting a gap between judicial rhetoric extolling the importance of private property and the frequent practice of awarding inadequate compensation when property was taken by eminent domain, the article concludes by suggesting that undercompensation was a legacy of the Nineteenth Century. In this connection, it looks at some recent cases in which courts stopped short of awarding full compensation.
Download the article from SSRN at the link.