In the 1840s, Lysander Spooner and Wendell Phillips espoused opposing abolitionist interpretations of the United States Constitution. The former argued that the document did not sanction the enslavement of human beings, the latter denounced the text as a proslavery “covenant with death, and an agreement with hell.” This essay explores the effects of their contrasting legal educations on these theories. In the 1830s, Spooner worked as a legal apprentice under the tutelage of John Davis, Charles Allen, and Emory Washburn, three prominent lawyers (and politicians) working in Worcester, Massachusetts. By contrast, Phillips, consistent with his Boston Brahmin ancestry, attended the then-nascent Harvard Law School. The essay concludes that Spooner’s legal philosophy shows a far greater indebtedness to his legal education than does Phillips’s. This argument is defended by drawing on the voluminous correspondence and papers of both Phillips and Spooner, and the writings of their legal tutors and mentors.Download the article from SSRN at the link.
January 29, 2021
Knowles on Learning the Law in 1830s Massachusetts: The Contrasting Experiences of Wendell Phillips and Lysander Spooner @KnowlesGardner
January 28, 2021
I loved reading Bernadette Meyler’s Theaters of Pardoning, largely because of the way she feasts at the well-laden table of 17th century British theater as she discerns themes of mercy by the powerful. It is also exactly the right time to revisit clemency’s trajectory through Western civilization, as we rebound from a practitioner, Donald Trump, who used it as an extension of his own ego. In the end, though, the book was a great meal that still left me hungry, in that it never really tried to connect clemency’s historical path to the very real challenges we face today.Download the essay from SSRN at the link.
January 27, 2021
Newly Published: Jacqueline D. Lipton, Law and Authors: A Legal Handbook For Authors (2020) @PittLaw
Jacqueline D. Lipton, University of Pittsburgh Law School, has published Law and Authors: A Legal Handbook For Authors (University of California Press, 2020). Here from the publisher's website is a description of the book's content.
Everything a writer needs to know about the law. This accessible, reader-friendly handbook will be an invaluable resource for authors, agents, and editors in navigating the legal landscape of the contemporary publishing industry. Drawing on a wealth of experience in legal scholarship and publishing, Jacqueline D. Lipton provides a useful legal guide for writers whatever their levels of expertise or categories of work (fiction, nonfiction, or academic). Through case studies and hypothetical examples, Law and Authors addresses issues of copyright law, including explanations of fair use and the public domain; trademark and branding concerns for those embarking on a publishing career; laws that impact the ways that authors might use social media and marketing promotions; and privacy and defamation questions that writers may face. Although the book focuses on American law, it highlights key areas where laws in other countries differ from those in the United States. Law and Authors will prepare every writer for the inevitable and the unexpected.
January 24, 2021
A plethora of attorneys on the Hallmark Mystery Movie mini-series Darrow & Darrow. Lawyer characters include Joanna Darrow (Wendie Malick), her daughter Claire (Kimberly Williams-Paisley), and in the fourth episode, their client Cassie Piper (Elysia Rotaru), an attorney accused of insider trading, and then murder.
There are, of course, also prosecutors and judges, and paralegals. It's a well-acted series; watch for the relationships and the romance.
Via Sam Brunson at Loyola Chicago Law, this piece by Leandra Lederman, Indiana University School of Law, about Superman and his tax problems. Published at The Surly Subgroup.
January 22, 2021
Newly Published: Painting Constitutional Law: Xavier Cortada's Images of Constitutional Rights, edited by M. C. Mirow and Howard W. Wasserman @BrillPublishing
In May It Please the Court, artist Xavier Cortada portrays ten significant decisions by the Supreme Court of the United States that originated from people, places, and events in Florida. These cases cover the rights of criminal defendants, the rights of free speech and free exercise of religion, and the powers of states. In Painting Constitutional Law, scholars of constitutional law analyse the paintings and cases, describing the law surrounding the cases and discussing how Cortada captures these foundational decisions, their people, and their events on canvas. This book explores new connections between contemporary art and constitutional law. Contributors are: Renée Ater, Mary Sue Backus, Kathleen A. Brady, Jenny E. Carroll, Erwin Chemerinsky, Xavier Cortada, Andrew Guthrie Ferguson, Leslie Kendrick, Corinna Barrett Lain, Paul Marcus, Linda C. McClain, M.C. Mirow, James E. Pfander, Laura S. Underkuffler, and Howard M. Wasserman.
New from Katharina Isabel Schmidt of Yale Law School and Princeton University: Theodor Sternberg and the Closet of Conceptualism at the blog History/Sexuality/Law. The piece explores the relationship between law and love through the eyes of German-Jewish jurist-turned-sexologist Theodor Sternberg.
January 21, 2021
InterLaw Guest Lecture, February 24, 2021, Features Katharina Pistor, Columbia Law School @KatharinaPistor @ThomGiddens @LawDundee @PrincetonUPress
January 18, 2021
Sharp on #Vulnerability--Expectations of Justice Through Accounts of Terror of Twitter @popgoesthelegal @OxfordCSLS
January 15, 2021
The goal of this Article is to introduce a comprehensive methodology for the analysis of visuals used for communication in legal works, by which I mean transactional and litigation documents, legal instruments, primary and secondary sources of law, and legal informational materials. The new methodology has the following steps drawn from visual rhetoric, visual literacy, and mise en scène studies: Immediate Visual Context, Analysis of Meaning, Taxonomy of Purpose and Function, Immediate Verbal Context, Visual Cultural Context, Mise en Scène and the Rhetorical Topic of Arrangement, Visual Rhetoric and the Ethical and Professional Propriety of the Work. My intent in this Article and the methodology it presents is to examine visual elements as visuals, not as a translation or alternative form of verbal communication. The approach of trying to translate visual works into verbal arguments or verbal elements of legal reasoning limits the scope and the effectiveness of the visual works, because communication through visuals employs a separate visual language, and not in a literal or verbal sense. The methodology proposed in this Article is a set of tools that can help verbally-oriented law-trained writers to become better readers, evaluators, and creators of visual communications in the law. Keywords: visual rhetoric, visual legal rhetoric, visual literacy, multimodal, multimodality, proactive, Proactive Law, visualization, Legal Design, visual context, verbal context, visual cultural context, visualization in contracts, cartoon contracts, comic book contracts, Mise en Scène, diagrammaticsDownload the article from SSRN at the link.
January 12, 2021
A human body grows and changes but remains the same body. The same is true of other organisms, even though some transform dramatically. Metamorphosis is a poetic and mythological conceit of identity, change, and continuity. It applies just as well to the law of contract and helps us understand the power of the contract law canon and the conventional understanding of the legal history of contract. The ideas probably hold true for private law generally, but the focus is on Anglo-American contract law with a foray into Scots private law. Three aspects of mythology and metamorphosis are highlighted. First, the conventional understanding of legal history shapes what the law is. In the story of legal development, we see an implicit notion of progress — with missteps and complications of plot, but with the conviction that eventually the law, like any myth, will work itself out in a way that is right — not necessarily a way that is good but instead a way that fits with society. And in any system based on case law, this conventional understanding of legal development shapes the law itself. Second, the force of this conventional understanding is scarcely lessened by demonstrable falsity. Classic books, lectures, and cases illustrate the idea that historical inaccuracy is an insignificant check on the power of myth. Finally, myths consist not only of explanatory plotlines; they also draw on characters and settings that reflect and inspire the society they serve. Legal myths are no different. Understanding legal mythology requires an attentive ear and a sharp eye for the characters, as well as the storytellers. The reasonable man is not the same as the reasonable person (or is he — a metamorphosis?), and in any case is not the same as the bonus paterfamilias or bon père de famille—the good father of the family, or good family man, the comparable figure of Roman and civil law. Setting matters as much: the heritage of kings and lords, and judges and Westminster Hall, makes for different offspring than that of Rome and Continental learning, of wise thinkers and treatise authors, of Parliament House and institutional writers. When law is understood as a humanistic and rhetorical discipline, the force of myth, in all its aspects, is only natural.Download the article from SSRN at the link.
January 9, 2021
Ricca on Perpetually Being Astride Eden's Boundaries: The Limits to the "Limits of Law" And the Semiotic Inconsistency of "Legal Enclosures" @AnneWag26082949
Legal systems can be metaphorically taken as semantic and pragmatic enclosures. The ancient world has given us at least three literary loci that display the self-disruptive significance of this kind of metaphor if assumed as a practical guideline in the attempt to steer human experience. The first such loci can be traced in biblical Eden; the second one in the Phaeacian garden described in Homer’s Odyssey; the third in the stories of the first and second mythical Athens included in Plato’s Timaeus and Republic. In all these tales, human beings ineluctably end up straying across the semantic-spatial borders which certain categories and rules have given them to encompass their experience. All these literary loci offer both a semio-cognitive and a constitutional lesson for lawyers and sovereigns. My intention is to exploit these lessons to show that the most relevant limit of legal systems, if taken as semantic and pragmatic enclosures, consists precisely in their inability to constitutively limit themselves and their semiotic borders. This inaptitude is due, in my view, to the semiotic ‘exceedance’ of the phrastic, or descriptive parts of legal rules even more than the semantic vagueness of the values underlying their legitimacy. Any attempt to define the semantic and spatial boundaries of human experience by means of verbal enunciations implies the use of categorical schemes to define the legitimate and/or forbidden behaviors. But categorical schemes, in turn, comprise boundaries that draw protean verges between the inside and the outside of each category. The categorical ‘inside’ compellingly tends to exceed its borders so as to protrude out toward what is outside the category. In turn, the ‘outside’ shows, more often than not, continuities with the axiological/teleological patterns underpinning the semantic boundaries of legal rules. Any attempt to limit the competence/extension of law, if taken in its semantic/spatial significance, would seem to unveil what law could or should be, but is not. Relying on the above literary loci, I will try to demonstrate that this apparently contradictory implication is inherent in the dialectic between equality/universality and difference/plurality that makes up categorization itself, and thereby the semiotic prerequisites to considering any legal rule.Download the article from SSRN at the link.
January 8, 2021
With this Article, I have completed a trilogy of studies on the jurisprudence of Thomas Aquinas. In “Thomas Aquinas: Definitions and Vocabulary in His Treatise on Law,” I conducted a careful examination of Thomas’ juristic language to conclude that Aquinas viewed law rather as a senior administrator might. In “Thomas Aquinas (1225-1274),” I reviewed the main lines of Aquinas’ constitutional thought. In this Article, I focus intensely on a narrow but compelling theme: Thomas’ thought on the legitimacy of tyrannicide. I conclude that Thomas justifies tyrannicide while trying at the same time to preserve good order. The touchstone of his analysis throughout is the common good. If the ruler breaks faith the common good, the ruler has thereby committed sedition and appropriate action might be taken by private citizens and public authorities.Download the article from SSRN at the link.
January 6, 2021
Anthony Trollope (1815-1882) resides in the pantheon of nineteenth century English literature. Overcoming a miserable childhood, he became an official with the post office and is credited with introducing the familiar red mailbox. While working full time in his postal position until 1867, he still managed to publish 47 novels, travel books, biographies, short stories, collections of essays, and articles on various topics. Trollope has been described as the novelist of the ordinary for his realistic description of English society. Law and legal issues flow through Trollope’s fiction. The legal system held a special importance to him as the skeleton upholding the social and political framework of the country. Over one hundred lawyers appear in his work and eleven of his novels feature trials or hearings. The law intrigued and exasperated him. Along with the lawyers and legal issues he depicts are ideas of the law and legal system that are part of elaborate philosophical and jurisprudential traditions, which he recognized. This article examines Trollope’s changing attitude toward lawyers. It describes the structure of the Bar in terms of class, status and reputation. Trollope believed the legal system should ensure justice, and those who labored in the law should be the vehicle of that pursuit. Justice for Trollope was the meting out of rewards and punishments as the consequence of a right or wrong decision. However, the law, as he depicted it, was often an impediment to this process, and lawyers were unreliable guides. Initially Trollope portrayed lawyers critically as caricatures as evinced by such names as Alwinde, O’Blather, Slow & Bidewhile, Haphazard, and Chaffanbrass. He was outraged that barristers (lawyers who appear in court) put loyalty to their clients ahead of the search for truth and justice. The adversary system was flawed as the enactment of laws in accord with the laws of nature assumes an inbuilt moral compass in humans that contains self-evident truths of right and wrong. Trollope felt there was no reason why a right-minded person could not intuitively recognize the truth, so criminal law’s adversary system was unnecessary. The legal system sought not the discovery of the truth but was more interested in aiding the guilty defendant to escape punishment. Another grievance was that cross examination in a trial submitted honest witnesses to torture and distracted them from testifying as to the truth. As he matured as a writer and achieved success, Trollope’s understanding and appreciation of the legal profession changed. He met and become friends with leaders of the Bar, and they influenced his descriptions of lawyers, who became realistic and often admirable human beings. Beyond the legal problems of its characters, Trollope’s later novels incorporated the social, political, and jurisprudential issues of the times and engaged the Victorian legal culture in a broader sense of history, traditions, continuity and change. Trollope’s attention to the faults of the adversary system had its source in principles of natural law, which posited that God-given universal axioms of right and wrong gave individual guidance or a map for reaching the right result in a legal controversy. Natural law principles were challenged during the Victorian era by positivist notions that law is what the statute books say, and legislators enact. These divisions lurk in the background of his later portraits of lawyers and the legal system. In his later period Trollope created a realistic characterization of the legal profession at the time that offered universal insights into human nature.Download the article from SSRN at the link.
January 5, 2021
This is a translation of ‘Der Mensch im Recht’, Gustav Radbruch's inaugural lecture at the University of Heidelberg in November 1926, translated with an Introduction by Valentin Jeutner. Radbruch addresses the way in which law's image of the human informs the operation and content of law.Download the translation of the lecture from SSRN at the link.
January 4, 2021
Putting yourself in other people’s shoes is a highly evolved cognitive capacity. And it can be argued that it is one of the important tasks of those who make decisions for others which are meant to be fair, including judges and arbitrators, and all manner of other adjudicators. Now, one of the social functions of literary fiction is precisely to allow the reader to experience the story, a situation, from the protagonists’ perspective, to help her see what the world looks like standing where they do. Historically, this played a significant role in advancing women’s rights and minorities’ rights and to end a range of inhumane treatments, including slavery: works of literature got the general public to understand what it really is like to be in the shoes of those who suffer from these discriminations, from those exactions. So why, then, not encourage international adjudicators to connect with literature, with literary works, and remember the ‘centrality of texts to the form and substance of a community’s moral and social life’ (West 1988, 131) – texts which of course are not only legal texts? Study how literary works are constructed, their rhetoric, and you will be a better advocate, a better judge; study what literary works have to say, the societal functions and figures and values and aesthetics that they experiment with, and you may be a better international adjudication scholar. This paper offers an introduction to this way of thinking.Download the article from SSRN at the link.
The Black ton exists. It is a social world with clearly defined norms and beliefs. Like Regency England, that social world relies almost singularly on heteronormative marriage for identity and gatekeeping. Children are groomed for marriage in ways that are modern but would not feel completely foreign to Bridgerton’s conflicted belle à la ton, Lady Daphne Bridgerton. There are cotillions and informal matchmakers and child-bearing expectations. The Black ton has its social institutions and its organizations: from Jabberwockys to Sigma Pi Phi. There are distinctions between “new money” and inherited status. And, befitting any ton worth its salt, there are parties. And, like any elite status group, the Black ton cultivates loyalties and inspires aspirational fantasies. I would go so far as to say that everything from reality television shows like the “Real Housewives of Atlanta” to hip-hop capitalist fantasies are about latent desires for what the Black ton represents. In fact, television producer Mona Scott-Young may be Shonda’s aspirational Black ton equivalent. Scott-Young produces the wildly successful “Love & Hip Hop” reality series. It is a show that melds the desire of the Black ton with the aesthetics of hip-hop culture. Every sub-culture just uses the tools they have to make their own version of the same fantasy: A girl of good parentage eventually marries a Duke or a platinum rapper because the Ton requires it to reproduce itself.