In May 1852, Charles Perkins decided he wanted his slaves back. Perkins was from Mississippi, but in 1849 he caught gold fever and moved to California in search of easy fortune. When he came, like hundreds of others from the southern states, he also brought an enslaved man with him, and later had two others sent from his family’s plantation. In 1851, following California’s admission to the Union as a free state, Perkins returned to his home in Mississippi, leaving the three men behind. A year later they were in court, litigating the question of whether California’s recently enacted Fugitive Slave Act—which promised the resources of the state to help slaveholders recover their slaves—was constitutional, and with it the larger issue of whether slavery could exist on free soil. The answer, provided five years before Dred Scott, foreshadowed the coming of the Civil War, and firmly planted the West in the middle of the national debate over race, slavery, and the law. This paper is a narrative history of In re Perkins, the case involving Charles Perkins and the three men he maintained were his slaves. In takes place during the Gold Rush and the decade that followed, and it has two primary goals. First, by centering a story about slavery in the American West, it provides a critical lens through which we can explore how the ideological conflicts animating the North-South axis also extended horizontally to the Pacific Ocean. With rare exception, scholars of American slavery and those of the West do not engage in the type of rich discussions that allow for the West to be brought into the national discourse over slavery and the growing sectional crisis. Yet, as In re Perkins demonstrates, these issues very much shaped both the experiences of those who settled the area and the positions of those back east. Second, as a narrative history, this paper also affords an opportunity to dig down deep into the main participants in the case and reconsider who we think the makers and interpreters of the law are. Unlike like most legal histories, which place primary emphasis on court decisions and legislative enactments, the focus here is on how the law was experienced on a local and more nuanced level. By shifting the emphasis from the high courts to the county courtrooms, this paper is part of a larger story of how people of color and their allies turned to the courts in an effort to protect their rights in ways that have not always been understood or appreciated.Download the article from SSRN at the link.
March 31, 2021
The Senato of Milan was one of the most powerful European courts of justice in the early modern period, and its case law greatly influenced the development of substantive law. Indeed, recent research on the problems of legislation, law and the role of judges today has shone a spotlight on how case law impacts sources of law—and I believe this is an interesting opportunity to examine the issue by looking back on the institutional values and systems that society had in place during the ancien régime, of which the Senato itself was at once an expression and a guarantor.Download the essay from SSRN at the link.
March 30, 2021
Crawford, Jackson, and Hartzel on Stealing Culture: The Internalization of Critical Race Theory Through the Intersection of Criminal Law and Museum Studies
Consider this scenario: You walk into a museum or a collector’s home and take the most valuable item located within. Society, via criminal laws, would label you a thief and your actions as theft, robbery, or some other heinous activity. Yet, when the actors are flipped, and the museum (via its agents) enters the homes or lands of certain peoples, the law labels that 'an acquisition' and the thief turn into 'a collector.' Critical Race Theory (CRT) gives us a legal analytical tool to reconsider these labels, definitions, and outcomes.The full text is not available from SSRN.
The paper concerns the relation between argumentative and narrative features of legal texts and the question whether legal texts can be perceived as narrative texts. A narrative text is understood as transferring a story to the recipient through a given medium. The story, being the content of a narrative text, constitutes a specific way of manifesting the plot. The latter is a sort of internal logic of the story. The very same plot might be told in many different ways. Hence, the narrative text does not depict events directly, but through a story that requires a storytelling agent – the narrator. Certainly, there are different kinds of narrators, who can be more or less exposed within the text. In consequence, there are at least five positions concerning the relation between argumentation and narration in law: 1) sceptic – narration is a negation of the reasonableness of law; 2) narration is a structure of presentation of facts; 3) narration is a means of rhetoric persuasion; 4) narration is a meta-argumentative structure; 5) narration is a subject of critical analysis as it reveals the identity of an author. The theory of narration is applied to a particular problem of participation of professional self-governments in law-making.Download the article from SSRN at the link.
March 24, 2021
Legions of law students in property or trust and estates courses have studied the will dispute, In re Strittmater’s Estate. The cases, casebooks, and treatises that cite Strittmater present the 1947 New Jersey supreme court decision as a model of the “insane delusion” doctrine. Readers learn that snubbed relatives successfully invalidated Louisa Strittmater’s will, which left her estate to the Equal Rights Amendment campaign, by convincing the court that her radical views on gender equality amounted to insanity and, thus, testamentary incapacity. By failing to provide any commentary or context on the overt sexism, these sources affirm the court’s portrait of Louisa Strittmater as an eccentric landlady and fanatical feminist. This is troubling. Strittmater should be a well-known case, but not for the proposition that feminism is an insane delusion. Despite the decision’s popularity on law school syllabi, no scholar has interrogated the case’s broader historical background. Through original archival research, this Article centers Strittmater as a case study in how social views on gender, psychology, and the law shaped one another in the immediate aftermath of World War II, hampering women’s property rights and efforts to achieve constitutional equality. More than just a problematic precedent, the case exposes a world in which the “Champion Man-Hater of All Time”—newspapers’ epithet for Strittmater—was not only a humorous headline but also a credible threat to the postwar order that courts were helping to erect. The Article thus challenges the textbook understanding of “insane delusion” and shows that postwar culture was conducive to a strengthening of the longstanding suspicion that feminist critiques of gender inequality were, simply put, crazy.Download the article from SSRN at the link.
March 22, 2021
Professor Abrams authors a column, Writing it Right, in the Journal of the Missouri Bar. In a variety of contexts, the column stresses the fundamentals of quality legal writing — conciseness, precision, simplicity, and clarity.Download the article from SSRN at the link.
March 19, 2021
ICYMI: Barrett on A New CJ in the Sight of His Predecessor: Stone and Hughes, Summer 1941 @JohnQBarrett @StJohnsLaw
Most Chief Justices of the United States have died in office. And few served initially as an Associate Justice. Thus after the founding period, only two Chiefs—Charles Evans Hughes and Warren E. Burger—ever saw an Associate Justice colleague be appointed to succeed him as Chief Justice. This article chronicles that history. It also describes the rare instance in Summer 1941 of such a succession, and the telegrams and letters that Chief Justice Hughes and his colleague Associate Justice Harlan Fiske Stone exchanged as Hughes retired and Stone was appointed to be his successor.
Download the article from SSRN at the link.
March 15, 2021
This essay, using insights derived from linguistics and the philosophy of language, explores the relationship between how natural language expresses degrees of certainty in the truth of an assertion on the one hand, and how the law handles this issue on the other. The hearsay rule bars certain kinds of speech acts from serving as legal evidence, in particular assertions that report what another person earlier said, and which are offered to express the truth about the events at issue in a case. Some languages actually require that a speaker specify the source of information conveyed. At a trial, the witness will use one expression if he saw the defendant at the relevant time, another expression if he knows this information from having been told, and perhaps a third if he figured it out from the circumstances. Just as English speakers include tense as part of their linguistic expressions, other languages, including Cuzco Quechua (a Peruvian language) and Turkish include information about how the speaker came to know the assertions that he makes. These linguistic elements are called evidentials. In essence, these languages have a built-in identifier of hearsay. They require that the speaker tip off the hearer when a statement is made based on hearsay evidence. In some ways, the use of evidentials mirrors the hearsay rule in law. But in other respects, the two systems differ. This essay introduces the legal community to evidentials, and explores similarities and differences between legal and linguistic rules.Download the essay from SSRN at the link.
March 12, 2021
This article demonstrates that the histories of conquest and slavement are foundational to U.S. property law. Over centuries, laws and legal institutions facilitated the production of the two commodities, or forms of property, upon which the colonial economy and the United States came to depend above all others: enclosures of Native nations’ land and enslaved people. By describing the role of property law in creating markets for lands and people, this article addresses the gap between the marginal place of these histories in the contemporary property law canon and the growing scholarly and popular recognition that conquest and enslavement were primary modes of property formation in American history. First, this article describes how the field of property law has come to omit these histories from its common understanding of what is basic to its subject by examining property law casebooks published over 130 years. For most of their history, it shows, such casebooks affirmed the racial logic of conquest and slavery and contributed to these histories’ suppression in pedagogical materials. Early treatises avowed the foundational nature of conquest, but after the first property law casebook appeared, at the time of the close of the frontier, casebooks for more than half a century emphasized English inheritance, rather than acknowledging colonization’s formative impact on the property system. In the same period, the era of Jim Crow, casebooks continued to include many cases involving the illegal, obsolete form of property in enslaved people; when they ceased to do so, they replaced them with cases on racially restrictive covenants upholding segregation. After several decades, during which the histories of conquest and slavery were wholly erased, casebooks in the 1970s began to examine these histories through a critical lens for the first time. However, the project of understanding their consequences for the property system has remained only partial and highly inconsistent. The central part of this article focuses on the acquisition of property, which, properly understood, comprises the histories of conquest, slavery, expropriation, and property creation in America. It examines the three main theories of acquisition—discovery, labor and possession-- beginning with the United States’ adoption of the Discovery Doctrine, the international law of conquest, as the legal basis of its sovereignty and property laws. In this context, it shows that the operative principle of the doctrine was not that of first-in-time, as commonly taught, but the agreement of European nations on a global racial hierarchy. Second, it turns to the labor theory, which was selectively applied according to the hierarchy of discovery, and firmly linked ideologies about non-whites and property value. It then reframes the labor theory’s central question—property creation—as a matter of legal and institutional innovation, rather than merely agricultural labor. It examines the correlation between historical production of property value in the colonies to show how the main elements of the Angloamerican land system developed through the dispossession of nonwhites-- the rectangular survey, the comprehensive title registry, headrights and the homesteading principle, laws that racialized the condition of enslavement to create property in human beings, and easy mortgage foreclosure, which facilitated the trade of human beings and land as chattel to increase colonists’ wealth. Third, it assesses how the state organized the tremendous force required to subvert others’ possession of their lands and selves, using the examples of the strategy of conquest by settlement and the freedom quests that gave rise to the fugitive slave controversy. Its analysis highlights the state’s delegation of violence and dispossession to private actors invested in the racial hierarchy of property through the use of incentives structured by law. This article concludes by summarizing how the laws that governed conquest and slavery established property laws, practices, and institutions that laid the groundwork for transformations to interests in land after the abolition of slavery, which I will address in a future companion article. This article aims throughout to offer a framework for integrating the study of English doctrines regulating relations between neighbors-- the traditional focus of a property law course—into an exploration of the unique fruits of the colonial experiment -- the singular American land system that underpins its real estate market and its structural reliance on racial violence to produce value.
March 11, 2021
This article argues that the Canadian judicial attachment to the unwritten Constitution is faith-like. The faith-like aspects of this jurisprudence include the following explicit and implicit commitments:
1. The Constitution is incompletely and imperfectly stated by the constitutional text;
2. The Constitution is revealed through the act of interpretation in glimpses over time to authoritative interpreters;
3. The unwritten Constitution has provided and will provide reliable and morally good guidance for action, sometimes overtaking the written text of the Constitution; and
4. The precise nature and location of the Constitution eludes description, leading to reliance on metaphors and references to tradition.
This matters because the Canadian Constitution is often called upon, through the courts, to settle disputes surrounding religious practices. In resolving such disputes, the law must claim some form of authority over religion. I claim that the Court normatively justifies this assertion of authority by implicitly contrasting its own rationality with religion’s faith-based way of encountering the world. This claim is unstable because of the faith-like aspects of the law. This, however, is not a reason to overhaul the case law. It is instead a reason for judicial humility.Download the article from SSRN at the link.
March 5, 2021
Gerber on The Intellectual History of European Laws About Religious Toleration Prior to the Planting of English America
Law matters, and laws about religion matter a lot. Both the European laws about religious toleration prior to the planting of English America and the laws about religious toleration enacted by the settlers who founded English American colonies for religious reasons employed law primarily as a means of social control. European monarchs wanted power, and they utilized laws about religion to help them acquire it and maintain it. The leaders of the English American colonies planted for religious reasons used law to effectuate their designs: to foster religious toleration in those colonies committed to that animating principle (Maryland, Rhode Island, and Pennsylvania); to try to create an ideal Bible commonwealth for the colonies dedicated to the idea that religion must be practiced as God had ordained (Connecticut and Massachusetts). In short, the settlers of English America were impacted by the European laws about religious toleration that preceded their voyages to the New World. The planters of religiously tolerant colonies tried to learn from what they regarded as Europe’s mistakes, while those who strove for religious purity rejected the prevailing European notion that divine sovereignty must occupy a decidedly secondary place to the sovereignty of the state.Download the article from SSRN at the link.
March 4, 2021
In 2019 I started to work on a small volume on the popular TV franchise 'Game of Thrones' from a political theory perspective; convinced that the show’s plot means not only to expose oneself to the thrills of a sex- and violence-laden fantasy adventure. Watching ‘Game of Thrones’, I thought, requires to do more than simply love or hate the protagonists as they fail or succeed in fighting, scheming and plotting their way to the ‘Iron Throne’. It requires to make political judgments about the agents and their actions. Thus: why not use the characters of the show, the challenges they face, the institutions that determine their fate and the social and legal norms that govern their conduct as a background for an essay in political theory? Save for one chapter, alas, the book has never been written. This chapter (originally intended to be the sixth) focuses on the 'Night's Watch'.Download the article from SSRN at the link.
March 2, 2021
Newly Published: Alexander Lian: Stereoscopic Law: Oliver Wendell Holmes and Legal Education (Cambridge University Press, 2020) @CambridgeUP
Alexander Lian has published Stereoscopic Law: Oliver Wendell Holmes and Legal Education (Cambridge University Press, 2020). Here from the publisher's website is a description of the book's contents.
In this unique book, Alexander Lian, a practicing commercial litigator, advances the thesis that the most famous article in American jurisprudence, Oliver Wendell Holmes's “The Path of the Law,” presents Holmes's leading ideas on legal education. Through meticulous analysis, Lian explores Holmes's fundamental ideas on law and its study. He puts “The Path of the Law” within the trajectory of Holmes's jurisprudence, from earliest scholarship to The Common Law to the occasional pieces Holmes wrote or delivered after joining the U.S. Supreme Court. Lian takes a close look at the reactions “The Path of the Law” has evoked, both positive and negative, and restates the essay's core teachings for today's legal educators. Lian convincingly shows that Holmes's “theory of legal study” broke down artificial barriers between theory and practice. For contemporary legal educators, Stereoscopic Law reformulates Holmes's fundamental message that the law must been seen and taught three-dimensionally.
The book is available through Cambridge Core.