For the last fifty years, Congress has embraced a tactical approach to naming its legislation. In that span, a distinctly American lawcraft has emerged, with official short titles frequently taking the form of acronyms (e.g., the USA PATRIOT Act), victim names (e.g., Megan’s Law), or other evocative phrasings (e.g., the Ryan White CARE Act). What was once mundane and routine has become yet another opportunity for political messaging. At their best, tactical titles may be cute, clever, or even moving, but they still fail to provide useful insights about their underlying measures. It is hardly surprising, then, that they have become an object of scorn or ridicule, with scholars, commentators, and occasionally legislators calling for measures to curb the practice. If tactical titles lack the power to change the likelihood of a law’s passage, then we might be able to disregard the phenomenon as a silly, if trivial, pastime. But what if titles have the power to manipulate people’s opinions of the laws so named? What if titles give laws an advantage by making them more likely to be noticed or remembered? Then these titles become a threat to democratic principles by harming the electorate’s ability to make informed conclusions about laws and those who support them. Remarkably, there has never been an empirical study of the effect of tactical titling on Americans. To fill that void, we have designed a novel experiment that isolates the effects of common title types (acronyms, victim names, sponsor names, and generic titles) on favorability and memory. This experimental design further reveals how these effects are moderated or enhanced by the political ideologies of those who read them. Our results are illuminating. Tactical titles have the power to change people’s opinions of underlying laws. Troublingly, this effect appears to be ideologically asymmetrical: Left-leaning participants’ opinions did not exhibit a titling effect, but Right-leaning participants gave higher ratings to a law with an acronym title and lower ratings when the very same law had a victim-named title. Moreover, the effect was limited to a conservative law; we did not observe it on either a liberal or nonpartisan law. Our results also showed that, regardless of the participant’s or the law’s political leaning, our participants were better at recalling the names of acronym titles than our other title types. The magnitude of the effect was substantial. Regarding opinion, our results indicated an average shift in the favorability of a law from a six to a nine on a ten-point scale. As to memory, participants were nearly twice as likely to remember the names of laws with acronym titles than generic titles. These findings dovetail with political psychology research on negativity and in-group biases. And most importantly, they provide empirical justification for measures that seek to put an end to tactical titling.Download the article from SSRN at the link.
February 19, 2022
Sheppard, Moshirnia, and Sullivan on What's In a Name: An Experimental Analysis of Law Titles @SetonHallLaw @MonashLawSchool
February 18, 2022
Forthcoming: Christina Luckyj, Liberty and the Politics of the Female Voice in Early Stuart England (Cambridge University Press, 2022) @ArsScripta @speght @CambridgeUP
The female voice was deployed by male and female authors alike to signal emerging discourses of religious and political liberty in early Stuart England. Christina Luckyj's important new study focuses critical attention on writing in multiple genres to show how, in the coded rhetoric of seventeenth-century religious politics, the wife's conscience in resisting tyranny represents the rights of the subject, and the bride's militant voice in the Song of Songs champions Christ's independent jurisdiction. Revealing this gendered system of representation through close analysis of writings by Elizabeth Cary, Aemilia Lanyer, Rachel Speght, Mary Wroth and Anne Southwell, Luckyj illuminates the dangers of essentializing female voices and restricting them to domestic space. Through their connections with parliament, with factional courtiers, or with dissident religious figures, major women writers occupied a powerful oppositional stance in relation to early Stuart monarchs and crafted a radical new politics of the female voice.
February 16, 2022
International Journal for the Semiotics of Law: Call for Papers Special Issue on International Arbitration in the Digital World
Guest Editors: Vijay K. Bhatia, Chinese University of Hong Kong Magdalena Łągiewska, University of Gdańsk, Poland.
CFP available online at:
February 9, 2022
Newly Published: Andrew Bricker, Libel and Lampoon: Satire in the Courts, 1670-1792 (OUP, 2022) @OxUniPress
An interesting new book from Andrew Bricker, Assistant Professor of English, Ghent University, and Senior Fellow at the Andrew W. Mellon Society of Fellows in Critical Bibliography at the Rare Book School at the University of Virginia.
Libel and Lampoon: Satire in the Courts,1670-1792 (Oxford University Press, 2022).
Libel and Lampoon shows how English satire and the law mutually shaped each other during the long eighteenth century. Following the lapse of prepublication licensing in 1695, the authorities quickly turned to the courts and newly repurposed libel laws in an attempt to regulate the press. In response, satirists and their booksellers devised a range of evasions. Writers increasingly capitalized on forms of verbal ambiguity, including irony, allegory, circumlocution, and indirection, while shifty printers and booksellers turned to a host of publication ruses that complicated the mechanics of both detection and prosecution. In effect, the elegant insults, comical periphrases, and booksellers’ tricks that came to typify eighteenth-century satire were a way of writing and publishing born of legal necessity. Early on, these emergent satiric practices stymied the authorities and the courts. But they also led to new legislation and innovative courtroom procedures that targeted satire’s most routine evasions. Especially important were a series of rulings that increased the legal liabilities of printers and booksellers and that expanded and refined doctrines for the courtroom interpretation of verbal ambiguity, irony, and allegory. By the mid-eighteenth century, satirists and their booksellers faced a range of newfound legal pressures. Rather than disappearing, however, personal and political satire began to migrate to dramatic mimicry and caricature—acoustic and visual forms that relied less on verbal ambiguity and were therefore not subject to either the provisions of preperformance dramatic licensing or the courtroom interpretive procedures that had earlier enabled the prosecution of printed satire.
Some early reviews:
“Grounded in enterprising archival scholarship and skilled interpretation of verbal irony, this book is a major contribution to scholarship on literature and law during the golden age of satire.” - Thomas Keymer, Chancellor Henry N.R. Jackman University Professor of English, University of Toronto
“Andrew Bricker’s supple and energetic Libel and Lampoon can be read – and with profit – as an entertaining account of a long game of whack-a-mole, in which courts and comedic expression, lugubrious legality and satiric mockery, chase one another through the presses, pages, pamphlets, and poetry of post-Restoration England, each shaping and reshaping the other in a constant and dizzying display of creative interpretive adaptation.” - Christopher Tomlins, Elizabeth Josselyn Boalt Professor of Law, Berkeley Law
“Libel and Lampoon will change the way we think about satire—both its literary history and its generic ambiguity—while revising our understanding of the history of libel law and the freedom of the press more generally.” - Helen Deutsch, Professor of English Literature, UCLA
More about the book here from the publisher's website. Order online at www.oup.com/academic with promo code AAFLYG6 to save 30%.
In this essay, I describe the movement of an affidavit across different sites – from its first manifestation in a legal submission before an appellate court in India, to my own rewriting of the story in theatrical form, to its subsequent adaptation by a different set of theatre practitioners. Multiple acts of translation take place here, the genre of the affidavit changing to accommodate the shift in each site. The lawyers in the first instance translate life into law; I translate that legal form into a theatrical form; my theatrical form is once again translated into a different kind of theatrical form. My description of these translations takes the form of a story, albeit a fragmented one. I start with a particular understanding of translation, one where I worry about what might be lost when law attempts to capture life. As the story proceeds, I find myself shifting towards thinking about what might be found and made possible in translation, about how these different genres of the affidavit might allow for different visions of law and life to flourish.
Download the essay from SSRN at the link.
February 8, 2022
Solum on The Public Meaning Thesis: An Originalist Theory of Constitutional Meaning @lsolum @BULawReview
Public Meaning Originalism is the predominant form of constitutional originalism. What makes Public Meaning Originalism distinctive is the Public Meaning Thesis—the claim that the best understanding of constitutional meaning focuses on the meaning communicated by the constitutional text to the public at the time each constitutional provision was framed and ratified. This Article provides a precise formulation of the Public Meaning Thesis, supplies reasons for affirming the thesis, and answers objections. The constitutional record strongly supports the claim that the constitutional text was intended to communicate to the public. The Constitution begins with “We the People” and the ratification process included intense popular participation. Jurists and scholars emphasized the public nature of the Constitution. The communication of public meaning is made possible by two features of constitutional communication. The first of these features is a shared language: the drafters of the constitutional text could rely on the fact that American English was spoken by most Americans and was accessible via translation to those who spoke German and Dutch. The second feature is a shared public context of constitutional communication: the drafters could rely on widely shared understandings of the circumstances in which the Constitution was framed and ratified. These features enable the creation of public meaning. Common objections to the Public Meaning Thesis, including the “summing problem,” are based on mistaken assumptions about the way linguistic communication works. In sum, the central claim of the Article is that Public Meaning Originalism provides the best understanding of original meaning and hence the most attractive form of originalist constitutional theory.Download the article from SSRN at the link.
February 4, 2022
Those who sought votes for women made claims for liberty and equality in the family on which constitutional law might now draw—but there is no trace of their voices or claims in constitutional law. The Supreme Court scarcely mentions the Nineteenth Amendment when interpreting the Constitution. Nor do Supreme Court opinions mention those who led women’s quest for political voice or the constitutional arguments they made in support of women voting, even though these arguments spanned two centuries. There is no method of interpretation that the Justices employ with sufficient consistency to account for this silence in our law. This Article explains this silence as a feature of American constitutional memory. Constitutional interpreters produce constitutional memory as they make claims on the past that can guide decisions about the future. It is the role of constitutional memory to legitimate the exercise of authority; but constitutional memory plays a special role in legitimating the exercise of authority when constitutional memory systematically diverges from constitutional history. Systematic divergence between constitutional memory and constitutional history can legitimate authority by generating the appearance of consent to contested status relations and by destroying the vernacular of resistance. Though women contested their lack of political authority in the constitutional order over two centuries, there is no trace of their arguments in constitutional law. To illustrate, the Article examines a long-running tradition of suffrage argument that began before the Reconstruction Amendments and continued in evolving forms after the ratification of the Nineteenth Amendment: that women needed the vote to democratize the family. Two centuries of constitutional arguments are nowhere reflected in the United States Reports. As a consequence, constitutional doctrines about liberty and equality in the family appear to lack historical antecedents. But argument, inside and outside of courts, can counter the politics of memory. Justices across the spectrum regularly make heterodox claims on the past. Constitutional interpreters can invoke the voices of the disfranchised and the concerns that the disfranchised brought to the democratic reconstruction of America. Imagine how we might understand our Constitution in another generation if we did.Download the article from SSRN at the link.
February 3, 2022
Seabourne on "Let Her Be Burned, etc.": A Consideration of Husband-killing and "Petty Treason" in Medieval England @gcseabourne
This is a working paper based on research to date on medieval petty treason, specifically the treatment by the common law of wives alleged to have killed their husbands.Download the paper from SSRN at the link.
February 1, 2022
Volume 36, issue 3 of the Journal of Law and Religion.
Read it for free until March 1, 2022.