This Paper uncovers a striking feature of statutory interpretation that joins the rise of “new new new” textualism on today’s Supreme Court and elsewhere. It reveals the increasing sway of the now infamous canons of construction across two very different legal systems: American law and Islamic law. These two systems of law share many of the same legal canons despite the radically different institutional structures, origins, and commitments of each system historically and today. They are perhaps maximally different. Probing each system individually then juxtaposing the two reveals shared, ‘meta’ features of legal canons between them. To be sure, such comparison may seem improbable, difficult, or meaningless at first blush. But after overcoming hurdles of the improbable, it becomes clear that the existence, continued use, and recent resurgence of legal canons in both systems suggest that the common features of their shared canons—metacanons—play out in almost every interpretation. This Article explores the nexus between the two. The idea of metacanons, beyond showing the value of comparison, helps delineate how and why the current U.S. Supreme Court must choose between using legal canons to bolster rule-of-law coherence or to mediate democratic values. My basic argument is twofold. First, I argue that courts demonstrably have abandoned the notion of court-congress dialogue in applications of legal canons today in ways that resonate closely with the differing structures of Islamic law Muslim jurists in older systems of Islamic law had initially adopted a similar notion but recognized as fictive long ago. Second, I argue that the facts of similar legal canons in disparate legal systems, both lacking in institutional dialogue, meaningfully informs the raging debates about both the means and the ends of statutory interpretation. These facts call for resolution and new approaches to the judicial use of legal canons, with an eye on metacanonical inquiries. In the end, I argue that our era of declining (or fictitious) institutional dialogue between Courts and Congress mean that legal canons in today’s Supreme Court are once again interpretive tools solely for judicial interpreters, who now face a choice. Judges who have dispensed with the myth of dialogue should seek more coherent use of canons to bolster rule-of-law values. Identifying the universal features of metacanons can aid that path. Or, judges should re-open the channels of dialogue and deploy the canons to mediate the ongoing cases and controversies about changing values in light of constitutional norms and congressional preferences. This is a path that Islamic law judges did not (and could not) pursue. But thrown into relief by metacanons, this path offers a unique prospect for advancing American democracy.Download the article from SSRN at the link.
July 31, 2022
July 29, 2022
Mortenson and Gabley on Delegation at the Founding: A Response to the Critics @jdmortenson @nicholas_bagley @ColumLRev
This essay responds to the wide range of commentary on "Delegation at the Founding," which is available at http://ssrn.com/abstract=3512154. The critics’ arguments deserve thoughtful consideration and a careful response. We’re happy to supply both. As a matter of eighteenth-century legal and political theory, “rulemaking” could not be neatly described as either legislative or executive based on analysis of its scope, subject, or substantive effect. To the contrary: depending on the relationships you chose to emphasize, a given act could properly be classified as both legislative (from the perspective of the immediate actor) and also executive (from the perspective of the authorizing principal) at the same time. As a formalist matter, the separation of powers objection is thus evanescent—subject to trivial reframing. In making rules pursuant to congressional instruction, administrative agencies are simultaneously exercising both legislative power (by promulgating authoritative legal commands) and also executive power (by implementing Congress’s authoritative instructions). This is *not* a functionalist argument; it is an insistent demand to take formalism seriously: the same government action was understood as both executive and legislative—and always was. As a matter of eighteenth-century governance practice, late eighteenth-century Anglo-American law was awash in legislative delegations. Nor did the adoption of the Constitution mark a change in that practice: its text does not specify new limits on delegation; no one in the ratification process suggested it might be read to do so; and vesting clauses in state constitutions with identically tripartite structures (and explicit separation-of-powers clauses) were understood to permit broad delegations. Early practice, in fact, suggests the Founders harbored no such belief. The First Congress passed dozens of laws delegating wide discretion to the President, to cabinet secretaries, to federal judges, to territorial governors, and to tax officials. No meaningful nondelegation objection was raised to any of these laws—and this at a time when legislators were inventing dubious constitutional arguments at the drop of a hat. The originalist argument for nondelegation doctrine fails on its own terms.Download the essay from SSRN at the link.
July 27, 2022
In recent years, the United States Supreme Court has taken up originalist interpretive approaches to the U.S. Constitution. The Court has become convinced (wrongly, in my view) that a traditional common law-style interpretation of constitutional rights undermines the Court’s authority by overstepping its role, usurping the prerogatives of the democratic branches, and stifling legal development by the states. Instead of reasoning from case to case, treating like cases alike in the usual evolutionary way of the common law, a majority of the members of the Court has insisted that constitutional rights should be frozen by English common law practices or treatises extant during the colonial period, and/or framers’ intentions and/or public understandings of constitutional language in 1789 or 1791 or 1868-70. These various and varying originalist approaches are often justified as providing more certainty in constitutional adjudication. Critics claim, however, that these new “originalisms” have the effect of halting the evolution of constitutional rights at the federal level, eroding stare decisis, and calling into question the continuing validity of some rights and constitutional doctrines that had been generated through prior common law development -- like rights of privacy, qualified immunity, privileges and immunities clause interpretation, retroactivity rules, state action requirements, and sovereign immunity doctrines -- while potentially changing the nature of other constitutional rights to a balance set at an earlier time -- like rights of religious exercise, rights of free speech, and criminal procedural rights. Somewhat ironically, as the originalist reformation takes hold, rights at the federal level are becoming ever more unpredictable and unstable, as the Supreme Court revisits and reevaluates many of its prior decisions in light of the latest originalist theory, or the latest historical scholarship on the colonial or founding period. States, of course, must follow the constitutional decisions of the U.S. Supreme Court, but only as to federal constitutional baselines. State constitutions are free to give their citizens more rights than the federal constitution does, and indeed, a more restrained style of interpreting federal constitutional law is often promoted because of its merit in allowing states more constitutional room to develop their own state constitutional and statutory law. In order to provide a firmer foundation of support for a non-originalist approach to state constitutional adjudication in Connecticut, and to explain why the Connecticut courts should not borrow originalist approaches from federal constitutional cases, as some jurists have argued, this paper makes four assertions: 1) As a matter of Connecticut state constitutional history, it makes no sense to assume as a default rule that the Connecticut Constitution should track the U.S. Supreme Court’s interpretation of the U.S. Constitution (except, of course, where the U.S. Constitution preempts state law). 2) As a matter of Connecticut state constitutional history, it makes no sense to assume that a right not present in the state’s colonial period is not sufficiently deeply rooted in Connecticut history to be protected by Connecticut constitutional law. In other words, colonial or pre-colonial originalism was not the original constitutional methodology in Connecticut. Hence, the failure of a litigant to demonstrate an exactly similar colonial or pre-1818 practice, should not doom a state constitutional argument. 3) As a matter of Connecticut state constitutional history, pre-1818 English common law should also not function as a state constitutional default rule, because Connecticut judges never followed English common law as mandatory authority. 4) Finally, as a matter of Connecticut state constitutional history, Connecticut’s constitutional rights provisions should not be interpreted as merely “codifying” rather than “announcing” constitutional rights, because both the 1818 and 1965 Constitutions were explicitly forward-looking, not backward-looking. In short, a close look at Connecticut constitutional history reveals that the Connecticut Constitution should not be interpreted through an originalist lens, and certainly not through an originalist lens that preferences the colonial or English common law period in the manner of recent U.S. Supreme Court approaches. Instead, the Connecticut courts should reclaim their own essential and historical role as interpreters of Connecticut constitutional and common law on grounds of principle, and on the traditional, common-law-style judicial approach of treating like cases alike. This article provides: 1) an overview of Connecticut constitutional development, demonstrating the future-orientation of Connecticut’s 1818 and 1965 Constitutions, 2) an analysis of the way in which the “historical” aspects of Connecticut constitutional analysis have been interpreted, and misinterpreted, by the Connecticut courts, 3) a suggestion that one of the most unique features of Connecticut’s legal development is a tradition of legal independence from historical authority that encouraged locally-informed, common-law-style interpretive practices by its courts, since Connecticut never “received” the English common law and did not adopt the federal Bill of Rights until well after the “founding” period, 4) suggests that the Constitutions of 1818 and 1965 offer more appropriate temporal points of reference for Connecticut constitutional interpretation than the pre-1818 era, even were the Connecticut courts to take an originalist approach, in part because of the more broadly representative group of framers who were involved (which in 1965 included white women, black men, and many groups traditionally excluded from government, like Catholics, Irish, Italians, Jews, and Poles) and 5) counsels generally against using originalist approaches to state constitutional interpretation as unworkable and uncertain, unfair to litigants without special access to historical sources, and contrary to the common law approach instantiated in core legal principles of reasoned and principled argument, equal treatment, and stare decisis.Download the article from SSRN at the link.
July 26, 2022
Newly Published: Cultural Histories of Law, Media and Emotion: Public Justice (Katie Barclay and Amy Milka, eds., Routledge, 2022) @routledgepublishing @KatieEBarclay @AmyMilka
Cultural Histories of Law, Media and Emotion: Public Justice (Katie Barclay and Amy Milka, eds., Routledge Publishing, 2022). Here from the publisher's website is a description of the book's contents.
Cultural Histories of Law, Media and Emotion: Public Justice explores how the legal history of long-eighteenth-century Britain has been transformed by the cultural turn, and especially the associated history of emotion. Seeking to reflect on the state of the field, 13 essays by leading and emerging scholars bring cutting-edge research to bear on the intersections between law, print culture and emotion in Britain across the eighteenth and nineteenth centuries. Divided into three sections, this collection explores the ‘public’ as a site of legal sensibility; it demonstrates how the rhetoric of emotion constructed the law in legal practice and in society and culture; and it highlights how approaches from cultural and emotions history have recentred the individual, the biography and the group to explain long-running legal-historical problems. Across this volume, authors evidence how engagements between cultural and legal history have revitalised our understanding of law’s role in eighteenth-century culture and society, not least deepening our understanding of justice as produced with and through the public. This volume is the ideal resource for upper-level undergraduates, postgraduates and scholars interested in the history of emotions as well as the legal history of Britain from the late seventeenth to the nineteenth century.
July 25, 2022
Call For Applications: Post-Doctoral Research Positions in Legal History, University College Cork @LawUCC
From Dr. Patrick O' Callaghan, School of Law, University College Cork.
Job Vacancies: Two Post-Doctoral Researchers in Legal History Applications are invited for two Post-Doctoral Researcher/Senior Post-Doctoral Researcher posts based at the School of Law, University College Cork, Ireland for a period of 30 months (2.5 years).
The researchers will collaborate on the Law and the Inner Self (LAWINSEL) Project, funded by the Irish Research Council.
The project seeks to better understand the evolution and nature of the idea of the “inner self” in the liberal tradition by viewing it through the prism of legal change from the Middle Ages through to the digital transformations of the 21st century. A core focus of the research will be legal change in the field of personality rights. The researchers will conduct a specific programme of research under the supervision and direction of Dr Patrick O’Callaghan, Principal Investigator (PI) of the project. The ideal candidates will hold a PhD in legal history or a PhD with a substantial legal-historical component. They will have a publication record commensurate with their career stage.
For one of the posts, an ability to read medieval Latin is desirable. For the other post, an ability to read German legal texts is desirable. A familiarity with the field of personality rights and proficiency in other major European languages are also desirable. Both candidates will have excellent communication, organisation and interpersonal skills. Further details can be found at this link.
July 22, 2022
Call For Papers
LSU Law Journal for Social Justice and Policy
November 11, 2022
The LSU Law Journal for Social Justice and Policy is pleased to announce its Call for Papers for our upcoming symposium on the Industrial Prison Complex System. The Symposium will take place in a virtual format on November 11, 2022.
Submissions can include but are not limited to the following topics:
· Capital Punishment
· The Business of Private Prisons
· Hard Labor as Punishment
· Implications of the 8th Amendment
· Federal v. State v. Private Prisons
· The implications of the current prison system
· Restitution for Innocent individuals imprisoned
· Sentencing Guidelines and the impact on prisons
· Alternatives to Prison for non-violent offenders
· Economic Impacts of the Current Prison System
· Two-Year Anniversary of George Floyd: Where are we at now?
· Decriminalizing Marijuana
· Privatization of Probation
· No Cash Bail v. Cash Bail
LJSJP seeks to elevate underrepresented voices in legal academia and to confront pressing social justice issues of the day. Academics at all levels and in all disciplines (not just law) are encouraged to apply.
To apply, please submit an abstract of approximately 350-750 words through this form by August 29, 2022.
July 21, 2022
Scholars and judges increasingly interpret legal text by studying word use in real-world documents, a method known as “corpus linguistics.” But the traditional approach to corpus linguistics encounters several problems. It focuses on word frequencies at the expense of subtler linguistic cues and presents no clear dividing line between correct and incorrect textual meanings. It also requires a variety of subjective and opaque judgment calls, allowing motivated interpreters to cherry-pick the method that supports their favored meanings. This Article proposes a new, computational approach to corpus linguistics. It uses machine learning and natural language processing to algorithmically evaluate word meaning. By measuring the semantic similarity between words, we can answer questions of legal interpretation—for example, by testing whether “judge” is similar to “representative,” and therefore whether judicial elections are governed by the Voting Rights Act. Computational approaches produce quantitative estimates of similarity that reflect the intuitive semantic relationships between words. This Article extracts qualitative implications from these quantitative estimates by benchmarking against a known scale of word similarity, based on H.L.A. Hart’s famous “vehicles in the park” hypothetical. Applying computational corpus linguistics, this Article finds that semantic questions in real-world legal cases rarely give clear answers. Borrowing Hart’s analogy, most cases are closer to asking whether a bicycle is a vehicle than whether a car is a vehicle. Moreover, estimates of similarity vary substantially between corpora, even large and reputable ones. This suggests that the choice of corpus matters more than previously recognized and that traditional corpus linguists must consult multiple corpora to decrease the risk of cherry-picking. These empirical findings have important implications for ongoing doctrinal debates outside of corpus linguistics, suggesting that text is less clear and objective than many textualists believe. The Article develops these implications with discussion on the nature of linguistic meaning in legal interpretation. Ultimately, the Article offers new insights both to theorists considering the role of legal text and to empiricists seeking to understand how text is used in the real world.Download the article from SSRN at the link.
July 1, 2022
Dhondt on Bringing the Divided Powers of Europe Nearer One Another: The Congress of Soissons, 1728-1730 @HerakleitosMD @VUB_CORE @GRILI_Ugent
This contribution reconstructs the Congress of Soissons (1728-1730), a consequence of the Parisian Preliminaries (31 May 1727), an agreement that prevented the eruption of a general war in Europe between the League of Hanover (France, Britain-Hanover, Dutch Republic) and the League of Vienna (Emperor, Spain, Brandenburg-Prussia). The ‘sleeping’ congress did not generate a final peace agreement. Soissons was a congress of peacekeeping (Burkhardt), and in part contributed to the European culture of peace engineering (Ghervas). Besides the central commercial claims that opposed the Maritime Powers to Spain, the delegations reflected on geopolitical questions from the East Indies to Scandinavia, the Baltic and the Mediterranean. They were solicited by multiple actors of the European Society of Princes (Bély), down to the level of private individuals, who hoped for diplomatic intercession. France’s position as equidistant director of various bilateral and collective talks becomes clear through the itineraries of the delegates between Soissons, Fontainebleau, Compiègne and Versailles. The sociability of the congress is not purely curial or Parisian, but also includes life on the countryside. French archives highlight the material and logistical challenges of turning a regional hub as Soissons into an international one. The Hop Archives, which contain a synthesis of the daily reports of the Dutch delegation, and the British diplomatic archives (State Papers Foreign) are complemented by the press and the letters of George Lyttelton, who spent several months in Soissons on his Grand Tour. Not only this public circulation of news on the congress, but also the material culture of the print resources consulted by the diplomats allow to identify this eighteenth-century meeting place within the broader European republic of books, news and letters.
Download the volume from SSRN at the link.