May 25, 2022

Palmer on The Legal History and Framework of the New Zealand Constitution

Sir Geoffrey Palmer, QC, Victoria University of Wellington Faculty of Law, has published The Legal History and Framework of the New Zealand Constitution as Victoria University of Wellington Legal Research Paper 30/2022. Here is the abstract.
A paper presented to the “Building the Constitution” conference, held on 7–8 April 2000. The paper provides an overview of New Zealand’s constitutional history and system. It notes that uncertainty surrounding New Zealand's constitution renders any assessment of its adequacy quite challenging. Nevertheless, it ends by posing a number of questions for reformers to consider.
Download the paper from SSRN at the link.

May 22, 2022

Levinson and Graber on Justice Accused at 45: Reflections on Robert Cover's Masterwork @TouroLawReview @UTexasLaw @mgraber_ @UMDLaw

Sanford Levinson, University of Texas Law School, and Mark Graber, University of Maryland School of Law, have published Justice Accused at 45: Reflections on Robert Cover's Masterwork at 37 Touro Law Review 1851 (2022). Here is the abstract.
We raise some questions about Robert Cover’s Justice Accused, not to criticize magnificent and audacious scholarship motivated by the most pressing moral concerns, but to consider the timeliness and timelessness of certain themes explored in that masterwork. Our concern is how the issues Cover raised when exploring the ways antislavery justices decided fugitive slave cases played out in the antebellum United States, played out in the United States when Cover was writing, and play out in the United States today. Cover’s opus was a work of the Great Society, even if the text discusses the American judiciary of more than a century before. The moral-formal dilemma faced by the justices Cover studied when adjudicating cases arising from the Fugitive Slave Acts of 1793 and 1850 was whether judicial decision-makers should interpret the law in light of the antislavery values of many northern constituencies or defer to laws that reflected the moral values of politicians eager to compromise on slavery to preserve a bisectional consensus. As times change, so does the moral-formal dilemma. The civil rights movement and, for many, the anti-War movement, at least as viewed from the academy in the 1960s, presented the moral-formal dilemma in pure form. Jim Crow laws were unjust. Young men were being drafted to fight an immoral war. Every respectable ethicist and every decent lawyer, at least as defined by the bulk of the academy, understood that morality and law were opposed. The sole question in the academy was whether laws widely agreed to be immoral should be respected and obeyed. One feature of much contemporary civil disobedience—consider illegal protests at abortion clinics or a public willingness to disobey state bans on abortion—is that the moral debate is marked by good faith disagreement on both sides. Pro-choice and pro-life activists in this environment face the same more-formal dilemma, as each decides the extent to which the Constitution reflects the values they cherish and the extent to which they have obligations to respect the Constitution or official decisions interpreting the Constitution that either fail to protect all women from exercising their fundamental right to reproductive choice or fail to prevent the wholesale slaughter of the unborn. Donald Trump and the contemporary Republican party may be providing Americans with a new variation on the moral-formal dilemma grappled with by nineteenth century justices in fugitive slave cases and twentieth century justices in civil rights cases. The moral-formal dilemma many Americans in institutions far remote from courts are facing is whether to follow the letter of the law and retain the basic structure of constitutional law in the United States even when following and maintaining the letter of the law threatens to warp the constitutional fabric, undermine the political regime, and risk an environmental catastrophe that could easily leave humans near extinction.
Download the article from the Touro Law Review website at the link.

May 20, 2022

Balkin on Constitutional Memories @jackbalkin @YaleLawSch

Jack M. Balkin, Yale University Law School, has published Constitutional Memories. Here is the abstract.
Many arguments in constitutional law invoke collective memory. Collective memory is what a group—for example, a religion, a profession, a people, or a nation— remembers and forgets about its past. This combination of remembering and forgetting helps constitute the group’s identity and structures its values and its commitments. Precisely because memory is selective, it may or may not correspond to the best account of historical facts. The use of memory in constitutional argument is constitutional memory. It shapes people’s views about what the law means and why people have authority. Lawyers and judges continually invoke and construct memory; judicial decisions both rely on constitutional memory and produce constitutional memory. What is remembered and what is erased has powerful normative effects. It shapes our understanding of who we are and how things came to be; what is traditional and what is an innovation; who has committed wrongs and who has been wronged; what we owe to others and what they owe to us. What is erased from memory, by contrast, can make no claims on us. Many of the most important forms of constitutional interpretation— arguments from precedent, arguments from tradition, and arguments from original meaning or understanding—involve an mixture of memory and erasure. They emphasize certain elements of the past while effacing others. Yet the selectivity and erasure of constitutional memory can have ideological effects, and can bestow on constitutional claims a legitimacy that they do not always deserve. The scope of constitutional memory matters to legitimacy because many features of constitutional legitimacy depend, whether directly or indirectly, on implicit notions of societal consensus, majority opinion, and the consent of the governed. But if the consensus is not real, if the majority is artificially constructed, and if the consent of the governed is not genuine, this undermines assumptions about legitimacy. At stake in constitutional memory is which historical figures and movements will count as makers of constitutional meaning for the present. If the memory of the adoption of the Constitution and its amendments features only a small group of white men as the central actors, the American constitutional tradition belongs to them and it is their views that matter. Women and racial minorities have constitutional rights only because these white men allowed them to have them. This is a false portrait of the country’s history. When we engage in constitutional construction therefore, we should embrace an expansive conception of collective constitutional memory, including the views and experiences of people left out of formal constitution-making, as well as the claims of social and political movements that have shaped our constitutional tradition. These can provide both positive and negative examples for the present. Not all of the lessons of constitutional memory are positive. Not everyone in the past was heroic, and even people and groups that we celebrate today had serious flaws and failings. Some of the lessons of constitutional memory are deeply ambivalent. But all can be grist for the mill of constitutional construction. When we implement and apply the Constitution in our own time, many different groups and many different people can be makers of constitutional meaning. What matters is what their ideas and experiences mean for the present, and whether they can serve as positive or negative examples for us today.
Download the article from SSRN at the link.

May 19, 2022

Forthcoming, June 2022: Jessica Silbey, Against Progress: Intellectual Property and Fundamental Values in the Information Age (2022) @JSilbey @stanfordpress @BU_Law

Forthcoming: Jessica Silbey, Professor of Law, Boston University, is publishing Against Progress: Intellectual Property and Fundamental Values in the Information Age (Stanford University Press, 2022). Here from the publisher's website is a description of the book's contents.
When first written into the Constitution, intellectual property aimed to facilitate "progress of science and the useful arts" by granting rights to authors and inventors. Today, when rapid technological evolution accompanies growing wealth inequality and political and social divisiveness, the constitutional goal of "progress" may pertain to more basic, human values, redirecting IP's emphasis to the commonweal instead of private interests. Against Progress considers contemporary debates about intellectual property law as concerning the relationship between the constitutional mandate of progress and fundamental values, such as equality, privacy, and distributive justice, that are increasingly challenged in today's internet age. Following a legal analysis of various intellectual property court cases, Jessica Silbey examines the experiences of everyday creators and innovators navigating ownership, sharing, and sustainability within the internet eco-system and current IP laws. Crucially, the book encourages refiguring the substance of "progress" and the function of intellectual property in terms that demonstrate the urgency of art and science to social justice today.

May 18, 2022

ICYMI: Jefferson on Hidden Women of History: Flos Greig, Australia's First Female Lawyer and Early Innovator @reneeknake

ICYMI: Renee (Newman) Knake Jefferson, University of Houston Law Center, has published Hidden Women of History: Flos Greig, Australia’s First Female Lawyer and Early Innovator at The Conversation (July 23, 2019). Here is the abstract.
When Grata Flos Matilda Greig walked into her first law school class at the University of Melbourne in 1897, it was illegal for women to become lawyers. But though the legal system did not even recognize her as a person, she won the right to practice and helped thousands of other women access justice. In defying the law, Greig literally changed its face. That she did so is a story worthy of history books. And how she achieved this offers key insights for women a century later as they navigate leadership roles in the legal profession and beyond. This short essay tells her overlooked story.


Download the essay from SSRN at the link. 

May 15, 2022

Schwartz on Gouverneur Morris, The Committee of Style, and the Federalist Constitution: A Commentary on Treanor's "Dishonest Scrivener" @WisconsinLaw

David S. Schwartz, University of Wisconsin Law School, is publishing Gouverneur Morris, The Committee of Style, and the Federalist Constitution: A Commentary on Treanor's 'Dishonest Scrivener' in volume 120 of the Michigan Law Review Online (2022). Here is the abstract.
Dean William Treanor's masterful article, The Case of the Dishonest Scrivener: Gouverneur Morris and the Creation of the Federalist Constitution, makes a major contribution to scholarship on the founding. He uncovers a body of constitutional interpretations favored by advocates of a strong national government and emphasized by the Federalist party in the early decades of politics and policy under the Constitution, raising significant questions about present-day originalism in the process. Treanor particularly emphasizes how Constitutional Convention delegate Gouverneur Morris, acting as primary draftsman on the 'Committee of Style' which put the finishing touches on the draft 'Constitution' crafted language favorable to Federalist interpretations. But Treanor disserves his otherwise compelling argument with a narrative that portrays Morris as a 'dishonest scrivener' who 'smuggled in' substantive revisions to impose his own views, presumably against the will of an inattentive Convention majority. This narrative framing 'not sustained by the available evidence' digresses from Treanor's core argument, and works against it. A better interpretation of the historical evidence is that the Committee of Style draft had broad support and made no substantive revisions that escaped the notice of the Convention. The fifteen revisions by the Committee of Style cited by Treanor do not support the charge of 'dishonest scrivening'. Ultimately, we can dismiss the 'dishonest scrivener' narrative, while recognizing Treanor's valuable, core insights that Morris was a key player at the Convention and that the Committee of Style reinforced Federalist understandings of the original Constitution.
Download the article from SSRN at the link.

Grajzl and Murrell on Families and Inheritance: Law and Development in Pre-Industrial England

Peter Grajzl, Washington and Lee University, Department of Economics; CESifo, and Peter Murrell, University of Maryland, Department of Economics, have published Of Families and Inheritance: Law and Development in Pre-Industrial England. Here is the abstract.
We examine how pre-industrial English caselaw development on land, inheritance, and families affected, and was affected by, economic and demographic outcomes. Our yearly measures of caselaw development are derived from existing topic-model estimates that reflect a comprehensive corpus of reports on pre-1765 court cases. We estimate a structural VAR model using these caselaw time-series in combination with measures of real per-capita income and vital rates. Pre-industrial caselaw development profoundly shaped economic development. Strikingly, the areas of caselaw that stimulated real-income growth are on families and inheritance, not land. Caselaw on families and inheritance was especially important as a driver of real income and birth rates after 1710. Caselaw developments were spurred primarily by changes in real income, not by changes in vital rates. Incorporation of endogenous caselaw development leaves intact the findings of the existing literature that examines pre-industrial economic-demographic interactions. However, our findings do imply that any Malthusian trap that was present in pre-industrial England was made less severe as a result of developments in caselaw on families and inheritance.
Download the article from SSRN at the link.

May 13, 2022

Gribnau and Hughes on The Enlightenment and Influence of Social Contract Theory on Taxation @HGribnau @TilburgLaw @UniofNottingham

Hans Gribnau, Tilburg Law School; Leiden University, and Jane Frecknall Hughes, University of Nottingham, have published The Enlightenment and Influence of Social Contract Theory on Taxation. Here is the abstract.
This paper considers some of the most important political philosophers of the Enlightenment (taken as broad concept) – thinkers whose reflections on the idea of a social contract we relate to their views on taxation. Hobbes argues for an (almost) absolute political sovereignty and legal authority and corresponding obedience of citizens constituted by the social contract. For Hobbes, taxes are justified as the price of security. He advocates the benefit theory of taxation, best measured by consumption. The same goes for Locke, although for him the social contract serves to guarantee the individual’s property rights which embody his liberty. Taxes are the price of the protection of the right to property. Both Montesquieu and Hume do not have need for a social contract: man living in societies is a fact of life. Their focus is on legitimate government rather than sovereignty and obedience. Hume inherently adheres to the benefit theory of taxation as paying tax is contributing to society on which one depends to survive. Montesquieu is a proponent of indirect taxation, though he considers progressive taxation and a subsistence minimum which must not to be taxed. For him, tax fairness is a contextual affair, since taxation should be relative to a given form of government. Rousseau radicalises the notion of the social contract which is a device to protect an equal freedom for all. He transposes the emerging new ideal of equality to taxation which not only is to enable government to protect its citizens, but also to consider their subsistence. Taxes should enhance liberty and equality (distributive justice). Thus, progressive taxation based on the ability to pay is put on the agenda. Rousseau’s popular sovereignty was self-evident for Paine, the Federalists and Anti-Federalists alike. Paine argued for a more radical redistribution as taxes should pay for welfare provision which was part of his proposals for reform. Both the Federalists and Anti-Federalists elaborated on Montesquieu’s plea for the separation and distribution of powers, but unlike in Montesquieu, their take focus was on multi-level governance. Like the other theorists, they approached taxation from their political-philosophical perspective.
Download the article from SSRN at the link.

May 7, 2022

Twenty Minutes with the Devil at The Street, Canberra, June 17-25, 2022 @luisenantipoda

From Thom Giddens, University of Dundee, via the Law and CUlture mailing list, on behalf of Desmond Manderson:



Yes, after no less than three lockdown delays over the past two years, Twenty Minutes with the Devil is finally on. Fri 17 – Sat 25 June, at The Street, Canberra’s home of professional theatre.  Book now if you haven’t already done so – and pass the word on to your students, your colleagues, and your friends!

 

Des

 

 

Twenty Minutes with the Devil is a black comedy, a high-octane thriller, and non-stop entertainment. It is based on real life events surrounding the capture of Mexico’s most notorious narco in 2016. But beneath the headlines, the play probes deeper questions. It brings together the life work of its two authors, well-known legal scholars and teachers Luis Gómez Romero and Desmond Manderson. What does law and justice matter when they seem so very far apart?

 

Two lowly cops and a narco think they have all the answers. Angela believes that if you follow the law, justice will look after itself. Romulo knows better, but the hide of a cynic often conceals a revolutionary heart. El Ticho doesn’t care about justice but he treats the law as a plaything he can twist to his own advantage. Now they’re trapped in a love hotel in the middle of the desert. The army and the cartels are descending and no one knows who will live to tell the tale. The pressure of the ticking clock and the impending storm of violence forces all three to confront what they think matters in the world and what they are prepared to do – to survive.

 

The play is set against the terrible drug wars which have led to the brutal deaths of hundreds of thousands of people in Mexico alone, and destroyed its legal system, its police, its society. But drugs are just a symptom. All over the world, the gap between law and justice seems to yawn wider than ever.

 

Rómulo: Drug’s just the excuse, man, ‘coz the real drug is money. I never met anyone who had enough of it – and millions’d kill for it in a heartbeat. Money buys you violence — violence gets you money. It don’t come cheap. It costs. Know what? Reckon it’ll cost more and more and more and to hell with the rest of us.

 

Climate change, inequality, politics failing and governments giving up. These emergencies effect all of us. Mostly, we look the other way and try to get on with their lives. But our three characters do not have that luxury. It’s now or never. They are in lockdown. And as we all know, there’s nothing like a lockdown to concentrate the mind. Is justice part of the solution? Is law part of the problem? These are urgent questions, and time is running out.

 

El Ticho: Any minute, my men are going to come storming through that door. They’re not going to knock – room service. You think you can stop them? You and that flightless hairy-winged angel of the lord?

 

 

May 5, 2022

Newly published: Marcy J. Dinius, The Textual Effects of David Walker's "Appeal": Print-Based Activism Against Slavery, Racism, and Discrimination, 1829-1851 (University of Pennsylvania Press, 2022) @PennPress

Newly published: Marcy J. Dinius, The Textual Effects of David Walker's "Appeal": Print-Based Activism Against Slavery, Racism, and Discrimination, 1829-1851 (University of Pennsylvania Press, 2022). Here from the publisher's website is a description of the book's content.
Historians and literary historians alike recognize David Walker's Appeal to the Coloured Citizens of the World (1829-1830) as one of the most politically radical and consequential antislavery texts ever published, yet the pamphlet's significant impact on North American nineteenth-century print-based activism has gone under-examined. In The Textual Effects of David Walker's "Appeal" Marcy J. Dinius offers the first in-depth analysis of Walker's argumentatively and typographically radical pamphlet and its direct influence on five Black and Indigenous activist authors, Maria W. Stewart, William Apess, William Paul Quinn, Henry Highland Garnet, and Paola Brown, and the pamphlets that they wrote and published in the United States and Canada between 1831 and 1851. She also examines how Walker's Appeal exerted a powerful and lasting influence on William Lloyd Garrison's Liberator and other publications by White antislavery activists. Dinius contends that scholars have neglected the positive, transnational, and transformative effects of Walker's Appeal on print-based political activism and literary and book history—that is, its primarily textual effects—due to an enduringly narrow focus on the violence that the pamphlet may have occasioned. She offers as an alternative a broadened view of activism and resistance that centers the works of Walker, Stewart, Apess, Quinn, Garnet, and Brown within an exploration of radical forms of authorship, publication, civic participation, and resistance. In doing so, she has written a major contribution to African American literary studies and the history of the book in antebellum America.

Eyer on Disentangling Textualism and Originalism @katie_eyer @RutgersLaw

Katie R. Eyer, Rutgers University Law School, has published Disentangling Textualism and Originalism. Here is the abstract.
Textualism and originalism are not the same interpretive theory. Textualism commands adherence to the text. Originalism, in contrast, commands adherence to history. It should be self-evident that these are not—put simply—the same thing. While textualism and originalism may in some circumstances be harnessed to work in tandem—or may in some circumstances lead to the same result—they are different inquiries, and command fidelity to different ultimate guiding principles. Why should this common-sense observation warrant academic commentary? Because both textualists and originalists—and even those who eschew such methodologies—are surprisingly inclined to conflate the two. Indeed, it is common (though not universal) today for textualists/originalists to treat textualism and originalism as a single inseparable package (adjudicated under the moniker of “original public meaning”), and to decline to rigorously delineate them in both theorizing and analysis. In this Essay, I argue that disentangling textualism and originalism is critical to the future vibrancy and legitimacy of textualism as an interpretive methodology. When conflated with originalism, textualism holds almost endless opportunities for partisan manipulation of precisely the kind that textualism’s critics have decried. Moreover, many types of originalist inquiry can lead judges to results inconsistent with text—and thus textualism. In short, for an adjudicator to have genuine fidelity to any interpretive theory, it is critical for the adjudicator to know to which theory, in cases of conflict, the adjudicator ultimately subscribes.
Download the essay from SSRN at the link.

May 3, 2022

Lloyd on Balancing Freedom and Restraint: The Role of Virtue in Legal Analysis @LloydEsq @WFULawSchool

Harold Anthony Lloyd, Wake Forest University School of Law, has published Balancing Freedom and Restraint: The Role of Virtue in Legal Analysis. Here is the abstract.
Even if one sees the law as “a self-contained system of legal reasoning” from which we deduce “neutral,” non-political conclusions from “general principles and analogies among cases and doctrines” (including formalist claims that judges simply call “balls and strikes” like umpires in a baseball game), one should still consider certain characteristics of the party making such deductions or calling such “balls and strikes.” [Relevant citations to quoted language are in the Article.] If such decision maker has questionable motivations, lacks proper perspective, does not grasp the flexibility in the concepts in play, does not grasp the restraints on concepts in play, does not follow the proper processes involved, and lacks the detail, courage, and tenacity needed to reach the proper “deduction” or “call,” on the face of things the formalist, too, should have reason to re-examine any “deduction” or “call” by such party. Thus, even the formalist should not deny the critical role of virtue when examining legal analysis, a role belying the notion of law as a "self-contained system of legal reasoning." This Article thus explores basic freedoms and restraints applicable to legal analysis and the role that virtue plays in balancing such freedoms and restraints. Such exploration covers: (i) the origin, nature, and purpose of concepts and categories used in legal analysis; (ii) the experiential nature of the meaning of such concepts and categories used in legal analysis; (iii) the freedoms and restraints applicable to such concepts and categories as a result of either experience or of the concepts or categories themselves; (iv) how workable notions of virtue rightly balance such freedoms and restraints in legal analysis; (v) the distinction between such virtue and skill; (vi) reconceiving the analytically virtuous mean as a proper balance between such applicable freedoms and restraints; and (vii) defining and surveying the particular virtues that lead us to such proper balance and thus to good legal analysis. My hope is that lawyers and law schools in their curricula will follow such explorations as well in a quest to better understand legal analysis and how to teach and perform it well.
Download the article from SSRN at the link.

May 2, 2022

Heyman on Transforming Natural Religion: An Essay on Religious Liberty and the Constitution @SteveHeyman6 @BYULRev @ChicagoKentLaw

Steven J. Heyman, Chicago-Kent College of Law, is publishing Transforming Natural Religion: An Essay on Religious Liberty and the Constitution in volume 48 of the Brigham Young University Law Review (2023). Here is the abstract.
Recent Supreme Court decisions such as Burwell v. Hobby Lobby, Masterpiece Cakeshop v. Colorado Civil Rights Commission, and Fulton v. City of Philadelphia raise the fundamental question of what place religion and religious liberty should hold within a liberal constitutional order that is based on a commitment to the freedom, equality, and well-being of all persons. To explore this question, it is natural to begin with an inquiry into what founding-era Americans thought when they incorporated the Free Exercise Clause of the First Amendment into the constitutional order they were creating. Contrary to the views taken by many judges and scholars, the Clause’s ideological background is best understood not in terms of either Enlightenment secularism or Christian Evangelicalism, but rather in terms of what the eighteenth century called natural religion. That view held that human beings were capable of using reason to discern the most basic principles of religion: that the world was created by God, that people ought to worship him, and that he has given them a law of nature that establishes their basic rights and duties in relation to one another. One of the most important rights was religious liberty: because religion was rooted in reason, individuals had a natural and inalienable right to form their own beliefs and to live and worship in accord with them. At the same time, that right was bounded by a duty to respect the inherent rights of other individuals as well as the legitimate authority of the state. In many ways, the eighteenth-century view was a humanistic one. At its core was a recognition of the inherent worth of human beings. This view held that individuals must be free to use their own minds in pursuit of truth, rather than having beliefs imposed upon them by religious or political authority. And it held that people with diverse beliefs were capable of living together in an open, self-governing society based on mutual acceptance and respect. These principles continue to be central to any adequate understanding of the Free Exercise Clause. Of course, we no longer live in the same intellectual world as the founders. In the wake of Darwinian evolutionary theory and other modern scientific developments, it is no longer widely accepted that reason alone can establish the existence of God or natural law. The question then arises whether it is possible to recast the eighteenth-century view in a way that retains its virtues without depending on controversial theological ideas or improperly favoring religious believers over others. In this Article, I begin to develop such a view, which I call liberal humanism. Like the classical theory, this view stresses the ideals of human freedom, equality, and dignity that informed the adoption of the First Amendment. But it seeks to broaden the classical theory in a way that reflects our contemporary understanding of those ideals. The Article begins by summarizing the classical view and showing how it was used by Thomas Jefferson, James Madison, and a broad coalition of groups as a rationale for protecting religious freedom, first at the state and then at the federal level. Next, I discuss how the idea of natural religion can be transformed by moving away from the eighteenth century’s ontological approach (an approach that held that reason could demonstrate the existence of God as well as the moral implications that flowed from it) and toward a more phenomenological view of religion, which focuses on the ways that human beings search for meaning and value in the world. People experience meaning and value in all areas of life, and they integrate those experiences into more comprehensive conceptions of the world and of their place within it. Some of these worldviews are religious ones which find ultimate meaning in a transcendent realm, while others are secular ones which find such meaning within this world. Both kinds of worldviews can be reasonable, and so both are entitled to respect. For these reasons, the Constitution should be interpreted to protect not only religious freedom but also a comparable right to form and live in accord with secular beliefs. Next, I show that just as the eighteenth-century view provided an account of natural rights, liberal humanism can provide an account of fundamental rights within our modern constitutional order. I then discuss the light that the liberal humanist view can shed on two important issues in contemporary free exercise jurisprudence: whether individuals are entitled to exemptions from laws that conflict with their conscientious beliefs, and if so, whether those exemptions may be granted only to those who hold religious rather than secular beliefs. The Article concludes with some brief reflections on how this approach can enable the secular and religious forces in our cultural battles to find some common ground.
Download the article from SSRN at the link.

Dane on Robert Cover and Legal Pluralism--Redux @perrydane @RutgersLaw

Perry Dane, Rutgers, The State University of New Jersey, Rutgers Law School, has published Robert Cover and Legal Pluralism - Redux. Here is the abstract.
This short essay meditates on and reconsiders Robert Cover’s distinct vision of legal pluralism in the light of today’s political and legal environment. In a 2013 talk, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3302988, I discussed three dimensions of Cover’s legal pluralism: its centering of narrative, its frank focus on state violence and non-state resistance in the encounter of legal orders, and its important insight that non-state communities could articulate and defend their own distinct accounts of the state’s legal order. Each of these ideas looks different today than it did even a few years ago. The narrative of the moment is a specific form of polarization that threatens to hollow out whatever nomos comes within its expanding orbit. The state today is no longer just an imperial ruler asserting its will over smaller scale, paedeic communities, but an increasingly fragile legal order that has become deeply vulnerable to a jurispathy from below. And the scholarly effort to chart the complex dynamics of legal encounter can verge on looking precious in the light of our current brokenness. Nevertheless, it remains vital to take up Robert Cover’s challenge and continue to try to search for an account of nomos and narrative that can make sense of both richly thick communities and atavistic teams, of both imperial states and fragile polities.
Download the essay from SSRN at the link.

April 30, 2022

American Society for Legal History Announces 2022 Student Research Colloquium @ASLHtweets

The American Society for Legal History announces the 9th annual Student Research Colloquium (SRC) November 9-10, 2022. 


Target applicants include early-post-coursework Ph.D. students and historically minded law students.  Students working in all chronological periods and all geographical fields are encouraged to apply.  Applicants who have not yet had an opportunity to interact with the ASLH are welcome, as are those who have never received any formal training in legal history.  A student may present a paper at the annual meeting and participate in the SRC in the same year.

The ASLH will at least partially and, in many cases, fully reimburse students’ travel, hotel, and conference-registration costs.

To apply, please submit the following three items to John Wertheimer at:  srcproposals@aslh.net:

  • a cover letter that describes, among other things, how far along you are and approximately how many years remain in your present course of study;
  • an up-to-date CV; and
  • a two-page, single-spaced research statement that begins with a working title and proceeds to describe the in-progress research project that you would like to present at the colloquium.

Application deadline: June 1, 2022.

April 29, 2022

Levine on Beyond "Big Government": Toward New Legal Histories of the New Deal Order's End @paulesabin @michlawreview

Gabriel L. Levine, Princeton University Department of Politics, is publishing Beyond 'Big Government': Towards New Legal Histories of the New Deal Order's End in the Michigan Law Review. Here is the abstract.
This essay reviews Professor Paul Sabin's recent book, Public Citizens, and offers the beginnings of an alternative legal history of the New Deal order's end. Sabin argues that liberal lawyers—and not just conservative activists—helped unmake the New Deal order from within. Through their vociferous criticisms of federal agencies, activists led by Ralph Nader undermined citizens' confidence that government could serve the “public interest.” Public Citizens is a major accomplishment; it deserves a wide audience among scholars of legal history, administrative law, and environmental law. However, Sabin overstates liberal complicity in unmaking “big government.” In the process, he overlooks much of what made public-interest liberalism both intellectually distinctive and politically vulnerable. Building upon Sabin’s insights, I sketch a new historical account of public-interest liberalism—one that considers not just how much government public-interest liberals wanted, but also what kind. I focus here on public-interest liberals' core project: environmental law. Public-interest liberals, I argue, were centrally committed to two distinct but related ideas: regulation in public policy and legalism in political morality. This combination was generative, but proved short-lived, as liberals were unable to muster a convincing response when the courts turned against them. Environmental law today endures, but as the remnants of an exhausted ideological synthesis. Transcending this synthesis is essential in today's struggle for a livable climate.
Download the book review from SSRN at the link.

April 28, 2022

Newly Published: Jeremy Bentham and Australia (Edited by Tim Causer, Margot Finn, and Philip Schofield, UCL Press), Free for Download @TimCauser @ElCatHome @UCLpress

 New Publication

Jeremy Bentham and Australia is a collection of scholarship inspired by Bentham’s writings on Australia. These writings are available for the first time in authoritative form in Panopticon versus New South Wales and other writings on Australia, a volume in The Collected Works of Jeremy Bentham published by UCL Press.

 

In the present collection, a distinguished group of authors reflect on Bentham’s Australian writings, making original contributions to existing debates and setting agendas for future ones. In the first part of the collection, the works are placed in their historical contexts, while the second part provides a critical assessment of the historical accuracy and plausibility of Bentham’s arguments against transportation from the British Isles. In the third part, attention turns to Bentham’s claim that New South Wales had been illegally founded and to the imperial and colonial constitutional ramifications of that claim. Here, authors also discuss Bentham’s work of 1831 in which he supports the establishment of a free colony on the southern coast of Australia. In the final part, authors shed light on the history of Bentham’s panopticon penitentiary scheme, his views on the punishment and reform of criminals and what role, if any, religion had to play in that regard, and discuss apparently panopticon-inspired institutions built in the Australian colonies.

 

This collection will appeal to readers interested in Bentham’s life and thought, the history of transportation from the British Isles, and of British penal policy more generally, colonial and imperial history, Indigenous history, legal and constitutional history, and religious history.

The book is edited by Tim Causer, Margot Finn, and Philip Schofield.

Jeremy Bentham and Australia: Convicts, Utility, and Empire (UCL Press) is free for download at this link. 


 

April 27, 2022

Roberts on A Poetics of Trademark Law @lexlanham @BerkeleyTechLJ @UNHLaw

Alexandra J. Roberts, University of New Hampshire School of Law, is publishing A Poetics of Trademark Law in volume 38 of the Berkeley Technology Law Journal (2023). Here is the abstract.
Poetry and trademarks have a lot in common. Both use language to persuade. Both aspire to say much with little. Both deal in ambiguity, though perhaps only poetry is content to reside in it permanently. While poetry is associated with education and erudition, trademarks are considered a lingua franca, readily understood by all. But reading a trademark remains, in the words of Laura Heymann, “at heart, an interpretive exercise.” Poetic devices like rhyme and alliteration play a role in what trademarks mean and how readers of trademarks can locate and articulate that meaning, but their use and interpretation have received little attention in doctrine or scholarship. While applicants and litigants sometimes allege that their marks incorporate poetic devices in support of a claim of distinctiveness, unitariness, or similarity (or the lack thereof), and factfinders sometimes grant credence to those arguments, both groups tend to use literary terms imprecisely. And that imprecision matters. This Article explores the poetics of trademarks. It calls upon several overlapping senses of the word “poetics”: a study of rhetorical devices; a strategy for interpretation; and a structuring principle undergirding trademark law itself. It defines a number of commonly used poetic devices, offers examples from both poetry and trademarks, and discusses federal court and USPTO decisions that consider their effects on protectability or infringement. Poetic devices have the potential to guide factfinders to deeper insight about word marks. The devices discussed offer ways to articulate what and how a mark means—its denotations, connotations, rhythm, music—specifically and precisely. By treating a trademark as a tiny poem, we make space to honor its complexity.
The full text is not available from SSRN.

April 26, 2022

Carpentier and Spaak on Sources of Law in Continental Analytical Jurisprudence @CarpentierUT1

Mathieu Carpentier, Universite de Toulouse 1 Capitole, and Torben Spaak, Stockholm University, are publishing Sources of Law in Continental Analytical Jurisprudence in Jurisprudence in the Mirror (L. Burazin, M. S. Green, and G. Pino, eds., Oxford University Press) (forthcoming). Here is the abstract.
This chapter explores various aspects of the concept of "sources of law" in continental analytical jurisprudence. We chiefly pursue two distinct aims. First we try to provide a a reasonably comprehensive, albeit by no means exhaustive, overview of the way analytical legal philosophers in the civil law tradition have conceived the concept of sources of law and the problems thereto related. Secondly, we attempt to advance our own understanding of the concept of sources of law. In the first part, we distinguish between four possible concepts of sources of law: sources as facts, as norms, as authoritative texts and materials and as causal factors. We then explain why sources are best understood as law-creating facts, that is, as criteria of the validity of legal rules. In the second part, we try to show how the classic debates among jurists and lawyers concerning the various types of sources (legislation, precedent, custom) have been received by legal philosophers and to what extent a jurisprudential analysis of these debates could reveal some enduring confusions. On our analysis, the concept of a source of law remains a central concept of both doctrinal scholarship and legal practice in many countries on the Continent; as such, it captures both the fixity of the law’s points of origin – i.e. law-creating facts – and the fluidity of its outcome – i.e. the very content of the law thus created. This is why we can accept both that legal validity is fixed according to more or less determinate criteria picked out by a moderately open-textured rule of recognition, and that the precise content of the law is shaped by interpretive practices.
Download the essay from SSRN at the link.

April 24, 2022

Chu on The Fascist Origin of Modern Chinese Criminal Law? Revisiting Attilio Lavagna's Contribution to the Chinese Penal Code of 1935

Ming-hsi Chu, Northwestern University Department of History, has published The Fascist Origin of Modern Chinese Criminal Law? Revisiting Attilio Lavagna’s Contribution to the Chinese Penal Code of 1935. Here is the abstract.
The Chinese Nationalist Government established the Drafting Committee of Penal Code in 1931 and invited Attilio Lavagna, a judge at the Turin Court of Appeal in Fascist Italy, as legal advisor. The penal code was passed by the Chinese legislature in 1934, took effect in 1935, and is currently in force in Taiwan. This paper delves into Chinese and Italian archives to investigate possible Fascist legacies of Chinese criminal law. Lavagna and other Italian scholars have claimed that the 1930 Italian Penal Code and Fascist legal principles influenced Chinese legislators. During his two years in China, Lavagna published in law journals, commented on penal code drafts, and lectured to legislators, judges, and scholars on Fascism. He highlighted three principles of Fascist law: power, order, and fairness, and reported to the Italian Ministry of Foreign Affairs that the Chinese audience was highly interested in exploring Fascism. Enrico Altavilla argued in 1938 that China had modeled after the Italian penal code in terms of territoriality, prohibition against analogy, security measures, subjective principles, and positive criminology theories. Historians of Sino-Italian relations have underscored Lavagna’s contribution to Chinese law. This paper, however, finds that Italian Fascism’s influence was insignificant. Lavagna’s suggestions only focused on technical issues such as how many punishment choices judges should have. Altavilla’s arguments are imprecise because most articles he discussed already appeared in earlier drafts before Lavagna’s arrival. Rather, this paper emphasizes that subjective principles and positive theories were part of the global trend of criminal legislation in the 1930s.
Download the text from SSRN at the link.

April 22, 2022

Nijman on Bertha Von Suttner: Locating International Law in Novel and Salon

Janne Elisabeth Nijman, T. M. C. Asser Instituut; Amsterdam Center for International Law, University of Amsterdam; The Graduate Institute of International and Development Studies (IHEID), is publishing Bertha Von Suttner: Locating International Law in Novel and Salon in Portraits of Women in International Law: New Names and Forgotten Faces? (I. Tallgren ed., Oxford University Press, 2022). Here is the abstract.
This portrait of Bertha von Suttner brings us to study sources traditionally not considered relevant within the scope of international legal history. That is, female diaries and a bestselling novel, Die Waffen Nieder! (1889), which has a female protagonist. Not allowed access to the formal sessions of the 1899 and 1907 Hague Peace Conferences, Von Suttner resorted to a typical female practice to influence intellectual and political debates. As Salonnière in the Hague during these Conferences, she created an informal social space for frank conversations among the small cosmopolitan elite of diplomats, journalists and international legal experts to influence negotiations and to contribute to the ‘peace through law’ project. Locating international law in her novel and Salon, this portrait connects loosely with a more socio-legal and materialist approach to international legal history. It shows Suttner held a rather well-developed - and at times fairly sceptical - outlook on international law.
Download the essay from SSRN at the link.

April 19, 2022

ICYMI: Goldfarb on A (Mostly Corpus-Based) Linguistic Reexamination of D.C. v. Heller and the Second Amendment @NealGoldfarb

ICYMI: Neal Goldfarb has published A (Mostly Corpus-Based) Linguistic Reexamination of D.C. v. Heller and the Second Amendment. Here is the abstract.
This is an in-depth linguistic analysis of the key language in the Second Amendment ("the right of the people to keep and bear Arms") that is based primarily on evidence of actual 18th-century usage. That evidence comes from two corpora that have been developed and made available by the BYU Law School as resources for researching the original meaning of the language used in the Constitution: COFEA (the Corpus of Founding Era American English) and COEME (the Corpus of Early Modern English). The corpus data provides powerful evidence that contrary to what the Supreme Court held in District of Columbia v. Heller, "bear arms" was used in the Second Amendment in its idiomatic military sense, and in fact that it was most likely understood to mean serve in the militia. Thus, the right to bear arms was most likely understood as being the right to serve in the militia. The analysis proceeds roughly as follows: "BEAR" and "ARMS": The Supreme Court’s interpretation of "bear" and "arms" in District of Columbia v. Heller was accurate as far as it went, but it is clear from evidence of historical usage that was unavailable at the time that the Court’s interpretation failed to reflect how "bear" and "arms" were actually used in the late 18th century. Although "bear" was sometimes used to mean ‘carry,’ the two words weren’t generally synonymous. The ways in which "bear" was used differed substantially from those for "carry." While "carry" was often used to denote the physical carrying of tangible objects (e.g., "carry baggage"), "bear" was seldom used that way. In fact, "carry" had by the end of the 1600s replaced "bear" as the verb generally used to convey the meaning ‘carry.’ In addition, although "arms" was often used to mean ‘weapons,’ it was also used roughly as often to convey a variety of figurative meanings relating to the military. "BEAR ARMS": The corpus data for "bear arms" was overwhelmingly dominated by uses of the phrase in its idiomatic military sense. (This is unsurprising given the conclusions, above, regarding "bear" and "arms.") The Supreme Court in Heller was therefore mistaken in declaring that the “natural meaning” of "bear arms" was essentially, ‘carry weapons in order to be prepared for confrontation.’ The phrase was ordinarily used to convey the meaning ‘serve in the military’ (specifically, ‘in the militia’) or ‘fight in a war.’ "THE RIGHT OF THE PEOPLE TO...BEAR ARMS": Consistently with how "bear arms" was ordinarily used, the right to bear arms was most likely understood as conveying its idiomatic military sense, and in particular as meaning ‘the right to serve in the militia.’ That conclusion is based to a large extent on the fact that there is reason to think that "bear arms" was understood to mean the same thing as to the right to bear arms as it meant with respect to the duty to bear arms — and the duty to bear arms was understood as a duty to serve in the militia. In addition, there is reason to believe, contrary to what the Court said in Heller, that as used in the Second Amendment, "the people" referred to those who were eligible for militia service. The interpretation described above is not ruled out by the fact that "bear arms" appears as part of the phrase "keep and bear arms." Although that interpretation requires that arms be understood as being simultaneously literal (as part of "keep arms") and figurative (as part of "bear arms") there is reason to believe that that was in fact how "keep and bear arms " was understood at the time of the Second Amendment’s framing and ratification.
Download the article from SSRN at the link.

April 18, 2022

Phillips and Blackman on Corpus Linguistics and Heller @JoshMBlackman

James Cleith Phillips, Chapman University School of Law, and Josh Blackman, South Texas College of Law, are publishing Corpus Linguistics and Heller in volume 56 of the Wake Forest Law Review (2021). Here is the abstract.
In District of Columbia v. Heller, the Supreme Court sharply divided over the meaning of the twenty-seven words in the Second Amendment. Justice Scalia wrote the majority opinion. He concluded that the Second Amendment “protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” In short, an “individual” right. Justice Stevens, in his dissent, contended that the Second Amendment “is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia.” That is, a “collective” right. Justice Scalia and Justice Stevens both made linguistic claims about four elements of the Second Amendment: “right of the people,” “keep and bear arms,” “keep arms,” and “bear arms.” Both the majority and the dissent used various textualist approaches to consider these four phrases, but their toolkit in 2008 was limited. They considered only a fairly narrow range of sources to interpret the text. Today, we can do better. In this Article, we will grade the four linguistic claims made in the Heller case using corpus linguistics. We rely on the Corpus of Founding Era American English (“COFEA”). In 2015, one of us conceptualized and oversaw the initial development of COFEA. We performed five queries with COFEA. First, we queried right of the people. Second, we queried keep and bear arms (and synonyms). Third, we queried the word right within six words of arms. Fourth, we queried the word keep, and variants of keep, within six words of arms. Fifth, we queried the word bear, and variants of bear, within six words of arms. We used multiple coders who independently coded their results using a type of double-blind methodology. Both the majority and the dissenting opinions erred with respect to some of their linguistic claims. Justices Scalia and Stevens should have expressed far more caution when reaching their textualist conclusions based on the narrow subset of founding-era sources they reviewed. Additionally, corpus linguistic theory reveals that there are inconsistencies in both Justice Scalia’s and Stevens’s descriptions of the Second Amendment’s original public meaning.
Download the article from SSRN at the link.

April 15, 2022

Gerber on Liberal Originalism in Connecticut Constitutional Interpretation @QuinnipiacLRev

Scott D. Gerber, Ohio Northern University College of Law, is publishing Liberal Originalism in Connecticut Constitutional Interpretation in the Quinnipiac Law Review. Here is the abstract.
This Article is my contribution to a Quinnipiac Law Review symposium about the history of the Connecticut constitution. The first part of the Article explains what liberal originalism is. The second section chronicles the “higher law” background of colonial Connecticut. The third portion describes Connecticut’s profound commitment to the Declaration of Independence. The fourth segment assesses the draft U.S. Bill of Rights written in the hand of Connecticut’s own Roger Sherman. The conclusion maintains that a liberal originalist approach to interpreting the Connecticut constitution is preferable to the less generous approach to deciding individual rights cases articulated by the Connecticut Supreme Court in State v. Geisler (1992).
Download the article from SSRN at the link.

April 14, 2022

Backer on Robert Cover and International Law--Narrative Nudges and Nomadic Nomos @BackerLarry @TouroLawReview

Larry Catá Backer, Penn State Law, is publishing Robert Cover and International Law -- Narrative Nudges and Nomadic Nomos in the Touro Law Review. Here is the abstract.
What was once understood as a unified field of international law, emerging from the state system and centered on the rationalization of the relations among public authorities has fractured. What had been the expression of a unified narrative of the organization of human society around the allocation of political authority now searches for new bases for authority as states become market actors, market actors assume governmental authority, markets define the territories within which law is made and applied, and the normative proscriptions of traditional law are quantified and data driven. This essay considers the way that Robert Cover’s insights on nomos, narrative, and the sacral (exogenous) elements both may inform the rationalization and authority of these critical developments in the constitution of international law. Cover advanced the perception that law was neither fixed nor aligned with and expressed through states; it was nomadic and its narrative was nudging. This is founded on the twin premises that, first, narrative produces multi-sourced nomos within a domestic legal order, and second, that international law produces a distinct plane of narrative with its nomos. Assuming both, then it is likely that international normativity will resist its reduction to a singularity, or single expressive force. These insights are first applied to international law’s post-1945 orthodox narrative and its challenges, constructed as a form of animal husbandry. It then considers this orthodoxy against emerging nomic challenges: the private law of public law bodies, the public law of private bodies, data driven international law-norms, and the emerging systems of platform governance at the international level. Each of these expressions of the imaginaries of international law contains its own nomos, and its own narratives within it. Each envisions bridges from quite distinct “here” to very different “there.” Each is grounded in quite distinct sacral foundations. Cover’s insights suggests both the power and permanence of these nomic contests within an international law that has at once lost its moorings in public law but is building new foundations of authority and action interlinked with but distinct from public law. Nonetheless, at its limit we arrive at the current state, where the central challenges the question of the relationship between collectives and the technologies of its production.
Download the article from SSRN at the link.

April 12, 2022

Call For Papers: The Legal Treatise: Past, Present, and Future @nmignanelli

 Call for Papers – The Legal Treatise: Past, Present, and Future

 

The Lillian Goldman Law Library and Law Library Journal invite proposals​ for a symposium on the Legal Treatise to be held at Yale Law School on Friday, March 24, 2023. 

 

The purpose of this symposium is to examine the many aspects of the history, present circumstances, and future of the legal treatise as a source and genre. Possible topics include but are not limited to: the origins of the treatise, the role of the treatise in English and American law practice and legal culture during particular periods in history, the commodification of the treatise, international and comparative perspectives on the treatise, microhistories of specific treatise titles, biographical accounts of treatise writers, rivalries between treatise writers, treatise authorship successions, reflections on contemporary treatise writing and publishing, the rise of the scholarly monograph, the (in)accessibility of the treatise, the transition of the treatise from a print resource to an electronic resource, the decline of the multi-volume treatise in law practice and legal scholarship, and theories about and proposals for the future of the treatise. 

 

Please send proposals in the form​ of an abstract to Nicholas Mignanelli at nicholas.mignanelli@yale.edu. Please be sure to include your name, institutional affiliation (if applicable), and contact information in your email. Those whose proposals are accepted will be invited to present at the symposium and will have the opportunity to publish their paper in Law Library Journal.  Early-career and previously unpublished scholars, as well as previously published authors​, are encouraged to submit. The submissions deadline is June 1, 2022.

Ruipérez on Monuments As Signals: The Political Effect of Confederate Commemorations

Ana Ruipérez, European University Institute, has published Monuments As Signals: The Political Effect of Confederate Commemorations. Here is the abstract.
What information do observers infer from contested symbolic heritage and how does that information change their political attitudes? Using a survey experiment, I explore the case of Confederate commemorations. After visualizing a video of the same town with and without Confederate commemorations, subjects report their beliefs and attitudes about the locality and its citizens. I find that Confederate commemorations signal a conflictive history, Southern pride and secessionist and Republican leanings. Importantly, they signal less support for Black Lives Matter and less care about racial equality. Respondents exposed to Confederate commemorations report more negative emotions and external political efficacy, trust the citizens in the town less, and think they would be less valued in the community with such symbols. They are less willing to make donations to schools in the town and, overall, find it a worse place to live. I find greater effects for Democrats and Black respondents.
The full text is not available from SSRN.

April 11, 2022

Pohlman on Revisiting the Fried Chicken Recipe @zach_pohlman

Zachary B. Pohlman is publishing Revisiting the Fried Chicken Recipe in volume 98 of the Notre Dame Law Review. Here is the abstract.
Twenty-five years ago, Gary Lawson introduced us to legal theory’s tastiest analogy. He told us about a late-eighteenth century recipe for making fried chicken and how we ought to interpret it. Lawson’s pithy essay has much to be praised. Yet, even twenty-five years later, there remains more to be said about legal theory’s most famous recipe. In particular, there remains much more to be said about the recipe’s author, a person (or, perhaps, group of people) whom Lawson does not discuss. Lawson’s analysis of the recipe leads him to an “obvious” conclusion: the recipe’s meaning is its original public meaning. If we consider those who wrote the recipe and their joint act of recipe-writing, however, I question whether that conclusion remains so obvious. This Essay takes a closer look at the chefs who wrote the fried chicken recipe and their act of recipe-writing that produced it. I argue that the meaning of the fried chicken recipe is not its original public meaning but is rather the meaning the chefs intended the recipe to have, even on Lawson’s own terms.
Download the essay from SSRN at the link.

See also 


Gary Lawson, On Reading Recipes...and Constitutions, 85 Geo. L.J. 1823 (1997), and the later Michael C. Dorf, Recipe for Trouble: Some Thoughts on Meaning, Translation and Normative Theory, at 85 Geo. L.J. 1996-1997. 




April 10, 2022

Green on United/States: A Revolutionary History of American Statehood @TempleLaw @michlawreview

Craig Green, Temple University School of Law, is publishing United/States: A Revolutionary History of American Statehood in volume 119 of the Michigan Law Review (2020). Here is the abstract.
Where did states come from? Almost everyone thinks that states descended immediately, originally, and directly from British colonies, while only afterward joining together as the United States. As a matter of legal history, that is incorrect. States and the United States were created by revolutionary independence, and they developed simultaneously in that context as improvised entities that were profoundly interdependent and mutually constitutive, rather than separate or sequential. “States-first” histories have provided foundational support for past and present arguments favoring states’ rights and state sovereignty. This Article gathers preconstitutional evidence about state constitutions, American independence, and territorial boundaries to challenge that historical premise. The Article also chronicles how states-first histories became a dominant cultural narrative, emerging from factually misleading political debates during the Constitution’s ratification. Accurate history matters. Dispelling myths about American statehood can change how modern lawyers think about federalism and constitutional law. This Article’s research weakens current support for “New Federalism” jurisprudence, associates states-rights arguments with periods of conspicuous racism, and exposes statehood’s functionality as an issue for political actors instead of constitutional adjudication. Flawed histories of statehood have been used for many doctrinal, political, and institutional purposes in the past. This Article hopes that modern readers might find their own use for accurate histories of statehood in the future.
Download the article from SSRN at the link.

April 8, 2022

Kimble on Scouring Dictionaries: Their Overuse and Misuse in the Courts @ProfJoeKimble @WMUcooleylaw

Joseph Kimble, WMU-Cooley Law School, has published Scouring Dictionaries: Their Overuse and Misuse in the Courts at 41 Dictionaries: Journal of the Dictionary Society of North America 249 (2021). Here is the abstract.
Under the influence of textualism, courts have increasing turned to general dictionaries when interpreting the meaning of contested terms. This resort to dictionaries is suspect for two main reasons: as practiced, it’s arbitrary and unsystematic; and it’s linguistically questionable for determining meaning in a legal context. This article looks primarily at the first point—the courts’ arbitrariness when picking which definition they choose to apply. Using three cases from the Michigan Supreme Court, the article argues that the Court majority cherry-picked a definition that did not seem to fit with an English speaker’s common understanding of the term in context and that ran counter to common sense, practical considerations, or the statute’s purpose.
Download the essay from SSRN at the link.

April 7, 2022

Bratspies on This Great Catastrophe: Bungling Pandemics from 1918 to Today @RBratspies @MSUILR

Rebecca M. Bratspies, City University of New York, School of Law, is publishing This Great Catastrophe: Bungling Pandemics from 1918 to Today in volume 30 of the Michigan State University College of Law International Law Review (2021). Here is the abstract.
In examining how badly the United States bungled its COVID-19 pandemic response, it is worth going back to the commemorations of the 100th anniversary of the 1918 flu pandemic. Author after author cautioned that the next pandemic would overwhelm the United States health system and that the demand for hospital beds, treatments, and medical staff would quickly outstrip supply. These prescient predictions from just two years ago. Why, when the risks were so obvious and so clearly understood, were they ignored? In answering that question there is blame enough to go around. The American public increasingly refused vaccines for communicable diseases, resisted spending for health research, and elected anti-science candidates. Those elected officials in turn failed to take obvious steps to ward off an entirely foreseeable disaster. Some of these developments are new(ish), relating to the specifics of the current political climate. Yet what is most striking is how readily official responses fell into virtually the same patterns that stymied effective pandemic response in 1918, and how structural racism predicted which communities would be hardest hit and least served by government responses. Instead of learning from the mistakes of the 1918 pandemic we have largely repeated them. This paper traces some of the threads of complacency, hubris, isolationism, and distrust that got in the way both times, and draws some broader lessons we must learn about American political culture before the pandemic next time.
Download the article from SSRN at the link.

April 6, 2022

Libel and Lampoon: Andrew Bricker in Conversation with Marissa Nicosia, April 12th at 12 (noon) Eastern Time @rarebookschool @Nicosia_Marissa

 

From Holly Borham, Senior Fellow in the Andrew W. Mellon Society of Fellows in Critical Bibliography at Rare Book School. She is Associate Curator of Prints, Drawings, and European Art at the Blanton Museum of Art at the University of Texas at Austin.

Join author Andrew Bricker and interviewer Marissa Nicosia for a conversation about Bricker’s book Libel and Lampoon: Satire in the Courts, 16701792 (Oxford University Press, 2022). Following this conversation, the audience will have the opportunity to participate in a Q&A session moderated by Holly Borham. This event is part of a series celebrating new books in critical bibliography, and is sponsored by Rare Book School’s Andrew W. Mellon Society of Fellows in Critical Bibliography (SoFCB).  

Event link: https://rarebookschool.org/all-programs/events/libel-and-lampoon-author-andrew-bricker-in-conversation-with-marissa-nicosia-on-satire-in-the-english-courts-1670-1792/

Everyone is welcome to attend this free event. Advance registration is required; to register, click here. Registration closes at 10 a.m. ET the day of the event. We will send you the Zoom URL and password after 10 a.m. ET on the day of the event. Please direct any questions to the SoFCB Administrative Director at rbs-mellon@virginia.edu. This event will be recorded and shared to the RBS YouTube channel. 

Andrew Bricker is Assistant Professor of English in the Department of Literary Studies at Ghent University and a Senior Fellow in the Andrew W. Mellon Society of Fellows in Critical Bibliography at the Rare Book School at the University of Virginia. His research focuses on interdisciplinary approaches to satire, the law, laughter, and humor. His first book, Libel and Lampoon: Satire in the Courts, 16701792 (Oxford University Press, 2022), focuses on the development of defamation law in relation to written and visual satire during the seventeenth and eighteenth centuries in Britain.

Marissa Nicosia is Associate Professor of Renaissance Literature at The Pennsylvania State University–Abington College and a Senior Fellow in the Andrew W. Mellon Society of Fellows in Critical Bibliography at Rare Book School. She has published articles on early modern English literature, book history, and manuscripts in Modern PhilologyMilton Studies, and The Papers of the Bibliographical Society of America. Marissa edited the collection Making Milton: Print, Authorship, Afterlives (Oxford University Press, 2021). She runs the public food history website Cooking in the Archives.


Waldron on Terrorism, Words, and Asymmetric Warfare @JeremyWaldron @nyulaw

Jeremy Waldron, NYU School of Law, has published Terrorism, Words, and Asymmetric Warfare as NYU School of Law, Public Law Research Paper No. 21-52. Here is the abstract.
Classic examples of terrorism involve murderous attacks on innocent civilians. But what about attacks on military forces, such as the USS Cole attack or the 1983 Marine Barracks attack or, for that matter, the 9/11 attack on the Pentagon? It is tempting to say that calling these attacks "terrorism" represents a cynical extension of the term for political purposes. In this paper, however, I argue that calling such attacks instances of terrorism can be justified by lines of thought that engage with multiple ways in which the fate of military personnel can affect the terrorization and insecurity of civilians. The paper explores five such lines of thought. The idea is not to preclude the view that the extension of the use of "terrorism" is cynical. It often is. But that is not the only possible explanation.
Download the article from SSRN at the link.

April 4, 2022

Koppelman on Justice Alito, Originalism, and the Aztecs @NorthwesternLaw @AndrewKoppelman

Andrew Koppelman, Northwestern University School of Law, has published Justice Alito, Originalism, and the Aztecs as Northwestern Public Law Research Paper No. 22-02. Here is the abstract.
Justice Samuel Alito is anachronistically mistaken when he claims, in his Fulton v. Philadelphia concurrence, that the original meaning of the Free Exercise Clause of the First Amendment is a judicially enforceable right to exemption from generally applicable laws. The doctrines and practices of strict scrutiny, narrow tailoring, and compelling interests came into existence in the 1960s. Alito’s evidence for his originalist claims misreads his evidence and has extravagant implications. If judicially crafted exemptions are to be defended, this case must be made on nonoriginalist grounds.
Download the paper from SSRN at the link.

April 1, 2022

Persaud on The American Constitution in the Cycle of Kali Yuga: Eastern Philosophy Greets Western Democracy @FAMULaw @seattleulaw

Shiv Persaud, Florida A&M University College of Law has published The American Constitution in the Cycle of Kali Yuga: Eastern Philosophy Greets Western Democracy at 20 Seattle Journal for Social Justice 63 (2021). Here is the abstract.
The Article discusses an application of the ancient Indian concepts of Dharma and Yuga, over our constitutional history in order to give us a clearer philosophical understanding of what the Constitution means to us and our future. Perhaps it is time to start talking about the real intent of the Framers in forming “a more perfect union” and how to get there. The purpose of this Article is to open a new discussion on these issues against a different background of critical analysis, rooted in Eastern philosophy.


Download the article from SSRN at the link. 

March 30, 2022

Romero on How Judges "Ruin" Victims at Sentencing @MaybellRomero @TulaneLaw @GeorgetownLJ

Maybell Romero, Tulane University Law School, is publishing 'Ruined' in the Georgetown Law Journal. Here is the abstract.
Judges play a critical role in one of the most important states of a criminal case’s adjudication—sentencing. While there have been substantial limitations placed on the discretion judges can exercise in devising punishments, there are little to none on what judges say at such hearings when articulating their rationales for the sentences they impose on convicted defendants. This Article examines the language judges use when sentencing defendants convicted rape, sexual assault, and sexual abuse that describes victims of those crimes and the harms they have sustained, especially language that describes victims as “ruined,” “broken,” or “destroyed.” The use of such language, while apparently meant to be empathetic, only serves to uphold misogynistic understandings of rape and sexual assault and actively harms victims. Judges trying to justify harsh sentences for defendants convicted of sex crimes also engage in shaming and exploitation of victims when saying that defendants have left victims “ruined” at sentencing. In this Article I use traditional scholarly methods of reviewing and analyzing cases and legal doctrine to show why the use of such language is harmful to victims and flouts the purposes of criminal punishment. However, I also engage in autoethnographic methods, relying on my own experiences of rape and sexual assault, as well as prosecuting such cases. This Article also considers how other fields such as medicine and public health have approached destigmatizing other historically stigmatized conditions like substance use and mental illness, arguing that judges should take similar steps to destigmatize being a victim of rape and sexual assault by more carefully considering their language use at sentencing. I conclude by reflecting on the use of personal narrative in legal scholarship and in the classroom and argue that it can be a powerful tool that scholars should more openly embrace.
Download the article from SSRN at the link.

March 28, 2022

Call for Applications: Annual Association for the Study of Law, Culture, and the Humanities Graduate Student Workshop: June 15, 2022 @Law_Cult_Huma

 

The Annual Association for the Study of Law, Culture, and the Humanities Graduate Student Workshop will be held on Wednesday, June 15, 2022 (the day before the annual meeting begins).

The workshop is designed for graduate students who are undertaking research that cuts across law, cultural studies, literature, philosophy, legal studies, anthropology, political science,  and history, among others. The workshop is designed to afford graduate students the opportunity to experience the LCH community in a smaller venue with more sustained contact with one another and some faculty. The workshop also provides graduate students with an opportunity to discuss their research projects in a small group setting in anticipation of such things as job talks and publication. 

Applications to the workshop should consist of a current curriculum vitae (2-3 page maximum), an abstract of a current project not exceeding 700 words, as well as a short (5- page maximum) text relating to that project. This “text” could be a case, literary work, a time-line, a photo, a sound or video file, or some other relevant text. The text you choose should be something that helps you reflect on the subject of your work and your methods of analysis. Please use your judgment and best guess in deciding how audio, visual, or audio-visual materials "translate" into pages of text. 

Applicants whose proposals are accepted will receive some support towards an extra night's accommodation from ASLCH as well as some support (varying, depending on distance traveled) towards the cost of transportation to the conference site. While those who participated in a previous workshop may re-apply and participate again, should space and/or funds be limited, we will prioritize new participants.

Please email your applications to lch@lawculturehumanities.com before Thursday April 14, 2022 with the subject line: ASLCH Grad Workshop Application. Please name your file(s) using your lastname first, e.g. “Miller_application” or “Miller_cv”. Please remind us if you applied for or participated in a previous workshop and, if so, which one(s).

Hamilton on Reform, Retrench, Repeat: The Campaign Against Critical Race Theory: Through the Lens of Critical Race Theory @VivianEHamilton

Vivian E. Hamilton, William & Mary Law School, has published Reform, Retrench, Repeat: The Campaign Against Critical Race Theory, Through the Lens of Critical Race Theory at 28 Wm. & Mary J. Race, Gender & Soc. Just. 61 (2021). Here is the abstract.
The protest movement ignited by the 2020 murder of George Floyd was of a scale unprecedented in U.S. history. The movement raised the nation’s consciousness of racial injustices and spurred promises—and the beginnings—of justice-oriented reform. Reform and racial progress, however, have rarely been linear over the course of U.S. history. Instead, they typically engender resistance and retrenchment. The response to the current justice movement is no exception. One manifestation of the retrenchment has been a rush by states to enact legislation curtailing race-related education in government workplaces and in public schools, colleges, and universities. These legislative measures purport to prevent the teaching of “divisive” tenets of Critical Race Theory (CRT), an intellectual discipline that originated in the legal academy in the 1980s. The proposed bills and enacted statutes, however, will instead prevent educators, for fear of incurring threatened penalties, from teaching about the role of racism in U.S. history and engaging students in meaningful discussions about race. If they remain in place, the laws increase the chances that the next generation of students will remain uninformed of the racial history of the United States and its legacy and will thus come of age unmotivated—and unequipped—to improve upon it. This Article describes first the racial justice movement that surged after Floyd’s murder, then the resistance and retrenchment that rapidly followed. Next, it draws on CRT to place these events in historical and theoretical context. It describes the intellectual predecessors of CRT, the emergence of CRT as an intellectual and political movement, and its core insights. It explains how the insights of CRT, despite being caricatured by conservative opponents of race reform, instead explain the retrenchment and backlash to the racial justice movement—including the evolution of the ideologies that anchor it, and the use of institutions, including the law, to entrench the status quo and the racial hierarchies it comprises.
Download the article from SSRN at the link.

March 26, 2022

Newly Published: James Boyd White, Let In the Light: Learning to Read St. Augustine's Confessions (Columbia University Press, 2022) @ColumbiaUP

 Newly published:


James Boyd White, Let In the Light: Learning to Read St. Augustine's Confessions (Columbia University Press, 2022).

Here from the publisher's website is a description of the book's contents.


St. Augustine’s Confessions is heralded as a classic of Western culture. Yet when James Boyd White first tried to read it in translation, it seemed utterly dull. Its ideas struck him as platitudinous and its prose felt drab. It was only when he started to read the text in Latin that he began to see the originality and depth of Augustine’s work.

In Let in the Light, White invites readers to join him in a close and engaged encounter with the Confessions in which they will come to share his experience of the book’s power and profundity by reading at least some of it in Augustine’s own language. He offers an accessible guide to reading the text in Latin, line by line—even for those who have never studied the language.

Equally attuned to the resonances of individual words and the deeper currents of Augustine’s culture, Let in the Light considers how the form and nuances of the Latin text allow greater insight into the work and its author. White shows how to read Augustine’s prose with care and imagination, rewarding sustained attention and broader reflection.

Let in the Light brings new life to a classic work, guiding readers to experience the immediacy, urgency, and vitality of Augustine’s Confessions.