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

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

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

Download the article from SSRN at the link.

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

 

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

 

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

 

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

Within the Graphic Justice stream we welcome submissions that explore:

 

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

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

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

*       Studies of individual comics, series and genres.

 

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

 

 

Seaborne on Rape and Law in Medieval Western Europe @BristolUniLaw

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

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

Download the essay from SSRN at the link.

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

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

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

The full text is not available for download from SSRN.

Frías on Vicario (DCH)/ Vicar (DCH)

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

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

 

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

Download the article from SSRN at the link.

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

 Reminder:

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

 

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

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

The CNLH tweets at @LawHumanitiesCA. 

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

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

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

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

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

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

The organisers therefore invite papers on topics such as

-          European integration; European identity and its Other

-          Processes of regionalisation and re-nationalisation

-          Narratives of Europe; European Narratives

-          Europe imagined

-          Legal culture in Europe

-          Digital agency

-          Migration and citizenship

-          Cultures of translation

-          Literature’s legal autonomy and its limits

-          European bestsellers and marketing

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

 

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

Pallotta on Spanish Constitutional History

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

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

 

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

The full text is not available from SSRN.

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

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

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

The full text is not available from SSRN.