Blues music emerged from African American communities during the Jim Crow era, inspired at least in part by society’s failure to afford them access to justice or the rule of law. The First Amendment, however, provided sufficient protection to speech to allow the art form of the Blues–lamenting the general disenfranchisement of Blacks in America–to develop, and ultimately to reach white audiences. At the same time, because reform came through extra-legal means (the speech and music of protest), the Blues also glorified the character of the outlaw, who flouts corrupt and unresponsive legal authority. In the end, the Blues, by lamenting the failure of legal institutions and lionizing the outlaw who defies them, raised awareness and played a role in bringing U.S. society closer to the rule of law, helping to resolve the rule of law failures that inspired its emergence.Download the article from SSRN at the link.
November 24, 2021
Pimentel on Blues and the Rule of Law @LoynoLawReview @uidaholaw
Berge on Ancient Greek Nomos and Modern Legal Theory @berge_lukas
Recently, two books have appeared that venture to re-investigate modern legal theory's ancient Greek underpinnings. In both books, the notion of nomos plays a central role. Firstly, Thanos Zartaloudis has published a remarkable study in which he delves into the manifold meanings of that ancient Greek word. Zartaloudis offers us an extraordinarily rich analysis of the polyvalent forms and uses of nomos from the age of Homer up to the days of Socrates – the classical period in which nomos would finally come to acquire its sense of an enacted legal norm (‘law’) or binding social convention (‘custom’). Secondly, nomos is of central importance in Johan van der Walt’s recent book on the intertwined modern notions of liberal democracy and the rule of law – referred to by Van der Walt as the concept of liberal democratic law. For Van der Walt, the analysis of ancient Greek nomos and its long and tortuous reception history in western thought is crucial for a proper understanding of what the modern concept of liberal democratic law entails and how it could be saved for the future.Download the article from SSRN at the link.
November 23, 2021
Menard on The Legal Within Folktales: Embedded Law in Indigenous and French Canadian Oral Stories @xavierfm3 @NLawGlobal
This essay pertains to the discovery of legal concepts and principles within Indigenous and French Canadian oral folk stories to develop greater dialogue across legal traditions. This is done in two parts. The first part focuses on the literary study of Indigenous and French Canadian folklore. It is argued that oral folk stories are legitimate and relevant object of law in literature study as they constitute dense and potent source of legal principles, concepts and notions. The second part directly engages an archetype of Indigenous and French Canadian folktales. It looks to find legal principles, concepts and notions through the supernatural characters of windigo and werewolf[.]
Download the article from SSRN at the link.
Giuliani on Legal Historians as Designers
One of the features of information societies is the importance acquired by design. When we turn to the legal field, we see this tendency reflected in the increasing role of legal professionals as legal designers. This observation applies to legal historians too. Their growing function is not only to be diggers of historical facts but also designers of the explanatory keys to make them understandable.Download the essay from SSRN at the link.
November 22, 2021
Reminder: Call For Abstracts, Law and Visual Jurisprudence, Due December 1, 2021
Springer Law Book Series:
LAW AND VISUAL JURISPRUDENCE
Aesthetics of Law in External Frame: From Methodology to Manifestations
Editors: Anne Wagner & Kamil Zeidler
Department of the Theory and Philosophy of the State and Law Faculty of Law and Administration
University of Gdańsk, Poland
This call for papers is intended as an opportunity for dialogue and exchange of views in the field of various manifestation of law in the broad understood art or related to art, which are captured within the aesthetics of law. In view of the topics suggested in the call, we propose this book with the aim of promoting an interdisciplinary and fresh approach to the subject of aesthetics of law, in the following perception of it.
The juxtaposition of law and aesthetics from the very beginning raised many doubts and controversies, resulting mainly from the fact that aesthetics, associated primarily with art, shows incredible plasticity and changeability, while the law is characterized by a certain rigidity and formalism. The possibility of combining law and aesthetics was born, which grew out of pragmatic aesthetics, one of the contemporary theories of perception of aesthetics, which was born in the twentieth century. According to its assumptions, aesthetics is no longer only associated with art and a work of art and the aesthetic experiences that accompany them, but even the leading theses of pragmatic aesthetics have become de-aestheticization of art and aestheticization of everyday life. The development of pragmatic aesthetics has meant that aesthetic experiences, unsatisfied with art, will be satisfied in a different way, with the help of objects and phenomena surrounding the recipient. As a result, the law, omnipresent in everyday life, has become the subject of aesthetics.
The aesthetics of law actually appears as one of the parts of the philosophy of law that focuses on the relationship between law and aesthetical values, in their broadest sense. The aesthetics of law can be closed in its three dimensions: external, internal and the approach defined as “law as a tool of aestheticization”. The aesthetics of law in an external dimension deals with all manifestations of law, its motives, symbols and legal inspirations that have been
presented for centuries in the fine arts. It cannot be denied that in the history of painting, sculpture, literature and film, there are countless examples of works in which the source of artistic inspiration was the broadly understood issue of law. Law can therefore be a material for art and, just like art, affect its recipients, shaping their perception of law, precisely by means of how it is presented in a given work. In internal dimension, the subject of the aesthetics of law is the law itself, treated as a carrier of aesthetic values and corresponding experiences and evaluations, and legal activity itself can thus be treated as a creative activity. The third dimension refers to the law as “tool of aestheticization” of everyday life, which indicates the aesthetic function of law, implemented mainly by legal regulation and the legal norms they contain, which are the determinants of what is aesthetic.
This book is going to focus only on the external dimension of aesthetics of law, as a very broad and interdisciplinary field. The main aim of this book is to show various combinations of law with broadly understood art. A fresh and innovative look is important and highly desirable here – both methodological and empirical, focused on manifestations and examples of the aesthetics of law in external frames. Taking this into account, in an attempt to encourage the submission of papers, we invite participants to considers issues in the following grounds:
· Law in art,
· Law in literature,
· Law in film,
· Visualization of law,
· Possible methodology in external dimension of the aesthetics of law,
· Sociological aspects of the external dimension to the aesthetics of law.
Submissions following these themes as well as other possible ways of analysis related to the above topics will be welcomed.
Abstracts of 500 words (max.) should be submitted by [1st December 2021] to Kamil Zeidler (firstname.lastname@example.org) with decisions made by [1st February 2022].
Chapters should be no longer than 15,000 words (including footnotes, summary, references etc.).
The deadline for full papers is: [31st May 2022]
November 18, 2021
AALS Section on Law and Religion Seeks Nominations For 2022 Harold Berman Award For Excellence in Scholarship @TheAALS
The AALS Section on Law & Religion seeks nominations for the 2022 Harold Berman Award for Excellence in Scholarship. This annual award recognizes a paper that “has made an outstanding scholarly contribution to the field of law and religion,” in the words of the prize rules. To be eligible, a paper must have been published between July 15, 2020 and July 15, 2021. The author must be “a faculty member at an AALS Member School with no more than 10 years’ experience as a faculty member.” Fellows are eligible, and self-nominations are accepted. Nominations should include the name of the author, the title of the paper, a statement of eligibility, and a brief rationale for choosing the paper for the award. Nominations should be sent to Elizabeth Katz (email@example.com), Chair of the Berman Prize Committee, by December 10, 2021. Thanks to the members of the Prize Committee: Elizabeth Katz (Washington University-St. Louis), Chair and Marie Failinger (Mitchell Hamline), Rick Garnett (Notre Dame), Jim Oleske (Lewis & Clark), and Audra Savage (Emory).
November 16, 2021
Gardiner on The Meaning of "Going Armed" in the 1328 English Statute of Northampton
Virtually all writers on the subject of the right to bear arms, both pro and con, simply assume, without any evidence, that the term “going armed” in the 1328 English Statute of Northampton meant carrying weapons. A review of the royal decrees and statutes contemporaneously issued and enacted demonstrates, however, that “going armed” did not equate to carrying weapons and certainly did not refer to firearms -- rather, “going armed” was a medieval term of art which referred to wearing body-protecting armour.Download the article from SSRN at the link.
November 15, 2021
Law, Gender & Popular Culture: Representations of Female Legal Professionals in Contemporary Arab Popular Culture, December 9 2021 @ljewel
Law, Gender & Popular Culture: Representations of Female Legal Professionals in Contemporary Arab Popular Culture
A hybrid round-table discussion by the Arab-German Young Academy of Sciences and Humanities
By bringing together perspectives from legal, media, and literary studies, this hybrid round table will explore and discuss how Arab popular culture (film, television, and literature) imagines gender, law, and women in the legal profession.
To participate online please register at https://bit.ly/30dAAbe.
Swethaa S. Ballakrishnen, University of California, Irvine School of Law
Lucy Jewel, University of Tennessee College of Law
Enass Khansa, American University of Beirut
Hania A.M. Nashef, American University of Sharjah
Lena-Maria Möller, Max Planck Institute for Comparative and International Private Law / Visiting Scholar, Legal Studies Program, NYU Abu Dhabi
Date: Thursday, 9 December 2021, 5-7 pm Gulf Standard Time.
Venue: New York University Abu Dhabi and online via Zoom (link will be provided upon registration)
November 9, 2021
Allen on The Emotional Woman @alenamallen @UARKLaw @NCLRev
The emotional woman is nonexistent in the common law, but the reasonable man is an indelible figure. Conceptions of reasonableness permeate nearly every aspect of the law while emotion is largely absent. The reasonable man determines negligence. Reasonable minds determine whether a contract has been formed. Reasonable doubt stands between freedom and incarceration. The primacy of reason in American jurisprudence is so engrained that it is rarely questioned or critiqued. Although it seems axiomatic to equate socially desirable conduct with reasonableness, this Article dissects how reasonableness became a central tenet of American law and argues that continued adherence to reasonableness as the optimal standard for evaluating conduct entrenches value-laden androcentric norms. It further argues that, in practice, reasonableness is an ill-defined construct masquerading as an objective standard. As such, instead of arguing for a reasonable woman standard of care, this Article departs from the standard feminist critique and argues that reasonableness itself is inherently androcentric. Thus, it argues that reasonableness is not the optimal standard for evaluating tortious or criminal conduct. Using current social science research, this Article argues that emotion is crucial to sound decision-making and proffers the emotional woman standard as a superior alternative to the reasonable man. Lastly, this Article discusses implications for how the emotional woman standard furthers existing paradigms of feminist discourse.Download the article from SSRN at the link.
November 8, 2021
Roux on The Role of Legal-Professional Culture in Constitutional Interpretation
Apex courts in liberal democracies deploy a broadly shared set of reasoning methods when interpreting constitutions. And yet, judgments in constitutional law are instantly recognisable as products of a particular legal-professional culture. While they do not determine outcomes, this suggests, cultural factors supply a shared repertoire of arguments that give each decision on constitutional law a distinctive local flavour. This paper first illustrates this point through a close reading of the Australian High Court decision in the Same-Sex Marriage Case. It then pivots 180 degrees to argue that, despite that decision's immersion in the idiom of Australian legalism, it possesses some qualities that are not so very unique to Australia. The High Court's reluctance to offer 'a single, all-embracing theory of constitutional interpretation', for example, is shared by a number of other apex courts. Despite the different legal-cultural settings in which they operate, this indicates, courts have responded in similar ways to shared institutional challenges. The culturally idiosyncratic nature of constitutional interpretation, the paper concludes, is not a barrier to comparative research on this topic. Rather, sensitivity to cultural variation is a necessary step in moving towards whatever general propositions might be made.Download the article from SSRN at the link.
November 5, 2021
Christopher Brown on The Borders of Utopia: Science Fiction and the Limits of the Legal Imagination, University of Montreal School of Law, November 11, 2021 https://www.cyberjustice.ca/2021/10/25/the-boarders-of-utopia-science-fiction-and-the-limits-of-the-legal-imagination https://www.cyberjustice.ca/2021/10/25/the-boarders-of-utopia-science-fiction-and-the-limits-of-the-legal-imagination @NB_Chris @CyberjusticeLab @droitumontreal
On November 11, 2021, Christopher Brown, Philip K. Dick, John W. Campbell, and World Fantasy Ward-nominated author of Tropic of Kansas, Rule of Capture, and Failed State, will be speaking on The Borders of Utopia: Science Fiction and the Limits of the Legal Imagination, November 11, 2021 at 4:30 (EST), at the Cyberjustice Lab, University of Montreal School of Law.
November 4, 2021
Hamilton on The Contractual and Tax Implications of The Phantom of the Opera
The substantive story of Gaston Leroux’s The Phantom of the Opera (Le Fantôme de l’Opéra) is largely about contract analysis and whether the managers and “the phantom” have had a “meeting of the minds”—consensus ad idem. The question is whether the Phantom and the Managers reached a “meeting of the minds” or manifested mutual assent in their contractual remedies. In short, the plot surrounds new managerial team—Armand Moncharmin and Firmin Richard—at the Palais Garnier have refused to abide by the former managerial team’s contract with the Phantom as successors in kind. The relevant legal facts are that Armand Moncharmin and Firmin Richard have assumed the roles of managers of the Palais Garnier. Gaston Leroux and the Phantom himself often point out that the managers have a lack of experience. Indeed, the Phantom appears to have similar access to private information that was at issue in the Supreme Court case Laidlaw v. Organ (1817) and which would be allowed to .be used in a negotiation over the mangers.
Download the essay from SSRN at the link.
November 3, 2021
Rice on Repugnant Precedents and the Court of History @daniel_b_rice
The Supreme Court’s precedents continue to tolerate many practices that would shock modern sensibilities. Eugenic sterilization, race-based naturalization, forced labor on public roads, the conscription of child soldiers, and the exclusion of non-heterosexual immigrants all remain ostensibly valid policy options. Yet the Court lacks standard tools for phasing out decisions that offend our national character. The very societal shifts that have reoriented our normative universe have also insulated most repugnant precedents from direct attack. And the familiar stare decisis factors cannot satisfactorily explain what ails culturally outmoded decisions. Even for Justices inclined to condemn these cases in less clinical terms, it is unclear what qualifies courts to make universalist claims about America’s deepest values. The Court recently sidestepped these difficulties by insisting that one of its most reviled decisions had been “overruled in the court of history.” In substituting rhetorical flair for analytical precision, however, the court-of-history trope threatens to destabilize the Court’s doctrines of horizontal and vertical precedent. This Article urges greater normality in implementing perceptions of national ethos. It first defends the inquiry’s legitimacy by recovering a longstanding judicial tradition of pronouncing specific practices abhorrent to American values. It then underscores the project’s stakes by identifying an assortment of precedents that trudge along as ethical outcasts. After highlighting various tangible and expressive harms that these decisions can still inflict, I propose that the Court integrate its ethical judgments into the existing stare decisis framework. And I challenge the Court’s presumed incapacity to dislodge vestigial precedents. These relics may be difficult to pry loose, but we are not stuck with them forever.Download the article from SSRN at the link.
November 2, 2021
Warden on Disenchanting Justice Holmes @LSULawCenter @TulaneLaw @UIllLRev
Over the last several years, the United States has seen the “cancellation” of numerous public figures. While the concept of “cancel culture” is of great concern to society, bringing recognition to the failures of public figures and powerful people is important. Truth should always be spoken to power. However, it is disheartening when those who have committed and encouraged some of the most heinous actions are continuously venerated by powerful institutions. The purpose of this letter is to encourage the discontinuation of such veneration for one jurist, Justice Holmes. I do not mean to “cancel” Justice Holmes in the modern sense, but to disenchant him. By this I mean to pull back the curtain, expose the wizard for the man he is; and, based on one opinion, show that such continued infatuation with Justice Holmes is improper. Of course, Justice Holmes is not the only Justice who has failed society. We have seen the Supreme Court fail on numerous occasions. Many of the Court’s worst decisions are deemed to have been wrong the day they were decided. This so-called “anticanon” represents America at its worst. We know these cases by the names of the litigants: Dred Scott, Plessy, Korematsu, and Lochner. Conspicuously absent from that typical pantheon of error is perhaps the worst of all, second only to Dred Scott—Buck v. Bell. Buck is the case which prompts this essay.Download the essay from SSRN at the link.
November 1, 2021
ICYMI: Francois Ost, Nouveaux contes juridiques (Dalloz, 2021) @Dalloz_action
Il était une fois le droit... Faire du droit en racontant des histoires, tel est le pari de ce livre qui exploite toutes les variétés du genre narratif, depuis le récit historique jusqu'au conte fantastique, en passant par le thriller policier, la dystopie et la fable animalière. Huit récits qui font réfléchir au droit en posant d'étranges questions. Entre amour absolu et violence déchaînée, quelle place pour la justice romaine de Pilate dans le procès de Jésus ? Qui a volé les Juges intègres des frères Van Eyck ? Et que penser de la disparition durable de juges intègres? Que se serait-il passé si Robinson Crusoé, parti du Brésil en quête d'esclaves africains pour ses plantations, avait fait naufrage non pas lors du voyage aller mais au retour ? On se demande aujourd'hui si les animaux devraient avoir des droits et se voir reconnaître une personnalité juridique. Et si c'étaient finalement les hommes qui avaient perdu leurs corps ? Les animaux révoltés, rassemblés en congrès, se posent la question. Rien ne va plus au royaume de Nimportou, ravagé notamment par les conséquences d'une pandémie incontrôlable ; divers autocrates se mettent au travail : Picflouz, Programmor, Cosinus, Diafoirus, Inquisitor... mais leurs recettes plongent le pays dans des malheurs plus grands encore. Et si on essayait le droit ? Un manuscrit introuvable, une administration kafkaïenne, un vieux professeur égaré... Où conduit, dans la vieille ville de Coimbra, cette quête improbable des fondements du droit ? Des livres qui disparaissent, certains qui s'invitent aux places d'honneur, d'autres encore qui se regroupent en d'étranges coalitions... Quel message cette bibliothèque juridique libérée adresse-t-elle à son propriétaire ?
ICYMI: Carlo Pelloso: Democracies and Republics Between Past and Future: From the Athenian Agora to e-Democracy, from the Roman Republic to Negative Power (Routledge, 2021) @UniVersona @routledgebooks
Carlo Pelloso, Univesrity of Verona, has published Democracies and Republics Between Past and Future: From the Athenian Agora to e-Democracy, from the Roman Republic to Negative Power (Routledge, 2021). Here from the publisher's website is a description of the book's contents.
Democracies and Republics Between Past and Future focuses on the concepts of direct rule by the people in early and classical Athens and the tribunician negative power in early republican Rome – and through this lens explores current political issues in our society. This volume guides readers through the current constitutional systems in the Western world in an attempt to decipher the reasons and extent of the decline of the nexus between ‘elections’ and ‘democracy’; it then turns its gaze to the past in search of some answers for the future, examining early and classical Athens and, finally, early republican Rome. In discussing Athens, it explores how an authentic ‘power of the people’ is more than voting and something rather different from representation, while the examples of Rome demonstrate – thanks to the paradigm of the so-called tribunician power – the importance of institutionalised mechanisms of dialogic conflict between competing powers. This book will be of primary interest to scholars of legal history, both recent and ancient, and to classicists, but also to the more general reader with an interest in politics and history.