Andrew Majeske, John Jay College of Criminal Justice, has published a review of Greta Olson, From Law and Literature to Legality and Affect (Oxford University Press) (forthcoming October 10, 2022), in the New American Studies Journal: A Forum.
September 30, 2022
September 26, 2022
Crawford and Afield on How Yesterday's Protestor May Be Tomorrow's Saint: Reimagining the Tax System Through the Work of Dorothy Day @HaubLawatPace @ProfBCrawford @ProfAfield @GeorgiaStateLaw @nyulaw
When is the nonpayment of taxes justified by conscientious objections? Legendary Catholic social activist Dorothy Day refused to pay federal income taxes, because she was an avowed pacifist who also cautioned against government overreach into the lives of citizens. This article asks whether the tax system should accommodate those who have moral objections, and if so, how accomplish that. Through the lens of Dorothy Day, who devoted her adult life to workers’ rights, pacificism, and service to the poor, this article makes three contributions to the conversation about the administration of a fair tax system. First, the article examines Day on her own terms. It is difficult, but not impossible, to reconcile Day’s tax resistance with the Catholic social teaching on taxation that was emerging during her lifetime. Second, the article considers what insights Catholic doctrine offers into the structure and substance of a just tax system. Although there is not as much theological writing on taxation as there is on other social issues, Catholic social teaching does provide some guidance about the purpose, form and operation of a just tax system. From these insights, the article moves to suggest specific improvements to the tax system: formal mechanisms that bring conscientious objectors into tax compliance; enhanced communication about the tax system’s role in administering the country’s most effective anti-poverty programs; and enforcement priorities that do not disproportionately target the poor. While these proposals might not be sufficient to have caused a steadfast antiwar protestor like Day to pay taxes, they illuminate a path toward much-needed reforms of the federal income tax system.Download the article from SSRN at the link.
September 22, 2022
Some stories have heroes and villains. Others involve a voyage, a quest, or a monster to be defeated. The law is no exception. Broadly speaking, most legal stories are generally about identifying wrongdoers and vindicating the rights of victims, but what if harms are “reciprocal” or jointly-caused? In other words, what if victims are just as responsible as wrongdoers for their plight? It was Ronald Coase who first proposed this novel counter-narrative to the standard victim-wrongdoer narrative in law. Researching and writing in the late 1950s and early 1960s, Professor Coase--an obscure, middle-aged English economist at the time--plucked a number of leading cases from the English Law Reports and other sources. Coase then used these old cases to create a compelling but controversial legal counter-narrative: compelling because Coase’s parable forever changed the way many economists, lawyers, and judges see the law; controversial because it was Coase who first conceived of harms as a “reciprocal” problem. Simply put, whenever one party accuses another party of harming them, it is almost always the case that both parties are responsible for the harm--that is the essence of Coase’s novel and unorthodox parable.Download the article from SSRN at the link.
September 21, 2022
This article examines the use of courtroom dialogues in two of the leading works of Irish language literature, and how they acted, at the time of their writing, as a mechanism which permitted both author and audience to question societal attitudes to female agency and sexuality – and how they continue to facilitate such critical reflection contemporaneously. Specifically, the piece examines the use of courtroom dialogues in Cúirt an Mheán Oíche by Brian Merriman (CMO) written around 17802 and in An Triail by Máiréad Ní Ghráda (AT) originally performed in 1965 and published in 1978. Both pieces, written nearly two centuries apart, use courtroom dialogues, and the formal mechanisms of testimony and cross-examination to articulate and critique the social subordination of women portrayed in the texts, and to question the restraints on female agency and sexuality imposed by the societies in which their characters exist. Through the works’ use of judicial settings and dialogues both texts articulate a feminist theory of law which aligns with Catherine McKinnon’s dominance theory.N.B. SSRN indicates the article is not available for download but the author indicates it is available open access. The website shows the content might be available for purchase or through institutional subscription.
Steven Howe, University of Lucerne, and Laura Petersen, University of Melbourne, have edited a special focus section of Pólemos: Journal of Law, Literature and Culture, on ‘Law and Art in the Aftermath’.
Aftermath is a “peculiar concept” (Frank Möller). Frequently invoked, in both popular and academic discourse, it is rarely theorised, or even explicitly considered. What is the aftermath? Where is it? When does it begin, when does it end? What comes after the aftermath – what endures and what passes, what is transformed and what emerges new? Does all life carry the “taint of aftermath” (Joseph O’Neill)? Are we ever not, in some sense, in the aftermath?
The contributions in this special focus section revisit the idea of aftermath as it relates to critical matters of law, justice and jurisprudence. They pose new questions of the concept, and look again at what it means to be in the aftermath – legally, politically and experientially. At the same time, they offer fresh takes on the resonances of law and art as they move alongside, through and against one another across distinct legal, political and critical aftermaths.
Featuring essays by: Eliza Garnsey, Paul Gough, Connal Parsley, Clotilde Pégorier and Lars Waldorf.
Access via the link above.
September 16, 2022
von Bernstorff and Mayer on The Historical School and German 19th Century Contributions to International Legal Thought
In the second half of the 19th century, European international law became what Western international lawyers up until the 1930s conceived of as international law. The transformative process during that time led to the establishment of a number of important concepts: the modern notion of the sovereign state as the foundational unit of an international legal order based on common consent; a dualist notion of customary law as an empirical emanation (state practice) of a common legal “consciousness”; post-natural law concepts of a ius ad bellum, sovereign equality, the balance of power, a (constitutive) recognition-doctrine; and the closely connected Eurocentric legal dichotomy of a “civilized” core of Western states and a non-Western periphery. The rise of these concepts was shaped by major political, ideological, jurisprudential and philosophical currents during the long 19th century.The contribution will disentangle some of the most important 19th century doctrinal developments and the associated German jurisprudential theories. In a first step we will describe the reception of the Historical School in international legal scholarship and its doctrinal implications for a modern theory of customary law. As a second step we will reconstruct the contribution of German theories of the sovereign will of the state as the formal basis of international law [Staatswillenspositivismus] leading to new theories of “common consent” and recognition. These two broader developments shaped the last decades of the 19th century and would have long lasting implications for modern international law. Despite the reformist rhetoric of our main scholarly protagonists, both the new historicist foundation of international law in custom and the late 19th century turn to multilateral treaties and common consent were regarded by late 19th century contemporaries as complementing each other. German Staatswillenspositivismus à la Jellinek or Oppenheim developed its theories on “common civilised consent” inside the new historicist foundation of European international provided by the reception of the Historical School in the mid-19th century.Download the article from SSRN at the link.
September 15, 2022
Junde on Protection of Traditional Art Forms under Geographical Indications Law: A Case Study of Madhubani and Sujini Art Forms of Bihar India @JIPLP
Using case studies of two of the oldest art forms practiced in Bihar, India, this article analyses challenges relating to the implementation of the law on Geographical Indications (GIs) in India, to better protect the rights and the craft of its most important stakeholders: the artists. This article is also a critique on the application of the current Indian GI regulatory framework to its traditional handicraft sectors. The findings derived with reference to handicrafts are also relevant to the broader question of whether GIs can protect the traditional knowledge or indigenous knowledge of the stakeholders. This article finds that lack of provisions related to quality control and monitoring mechanisms, discrepancies in the definition of ‘Goods’ and ‘GI’, the anomalous concept of authorized users and difficulties in the application for registration requirements, impose serious limitations. We, therefore, suggest that the extant regulatory framework needs to be strengthened by adequate support by the government to help artists to promote and market their work, and establishment of adequate regulations for quality control, post-GI registration.Download the article from SSRN at the link.
September 11, 2022
Wittgenstein’s influence on the legal theory of the late Ronald Dworkin (1931-2013) is an excellent illustration of the truth of the former’s statement, “The seed I’m most likely to sow is a certain jargon.” Dworkin, one of the most prolific and important legal philosophers of his era, developed a distinctly normative theory that links the rule of law, legal rights, and legal interpretation to the claimed objective unity of legal, moral, and political values, especially in the United States. In doing so he relied directly for support on the authority of Wittgenstein’s concepts “language-games” and “form of life,” and indirectly on the latter’s anti-metaphysical insight (in Dworkin’s words) that “the key to meaning is use.” This chapter discusses both the few points of contact and the large areas of divergence between the methods and goals of these two thinkers. It does so from two opposite yet complimentary perspectives, which it calls “Dworkin’s Wittgenstein” and “Wittgenstein’s Dworkin.” It concludes that Wittgenstein would not have recognized Dworkin’s writings as philosophy but would (perhaps) have respected them as expressions of a secular kind of religious faith – a Religion Without God as the title of Dworkin’s last book would have it.Download the essay from SSRN at the link.
Soifer on Remembrance, Group Gripes, and Legal Frictions: Rule of Law or Awful Lore? @UHMLawSchool @TouroLawReview
The rise of groups that honor and seek to advance their particular imagined or real pasts has seemed increasingly dangerous in the years since Bob Cover’s death in 1986. This essay briefly examines the challenges such groups pose to Bob’s hope, and even his faith, that law and legal procedure could be bridges to more just worlds. It may not be ours to finish consideration of how to distinguish the Rule of Law from Awful Lore—both composed of exactly the same letters— but we should continue that task, with remembrance, even within our troubled world.Download the article from SSRN at the link.
September 10, 2022
Tay on The Stories We Tell Ourselves: National Memories and Historical Narratives in International Legal Claims
“The universe is made of stories, not of atoms.” The social sciences recognize that States are motivated by their historical narratives. Narratives play a key role in shaping how States understand their world and their place in it. Scholars of nationalism crisply note, “no memory, no identity; no identity, no nation”. The emerging international relations tagline, Ontological Security Theory, asserts that the conduct of States is also motivated by their self-identity needs. Even so, there are unsettled questions about the motivational strength of historical narratives, the processes by which narratives gain salience, and how narratives are crafted. Contrastingly, the role historical narratives play in motivating international legal behavior is not well-studied in the international law (IL) scholarship. Most scholars employ rationalist assumptions to explain the international legal behavior of States. Whereas other scholars turn to constructivist explanations, the literature here predominantly focuses on how legal norms affect the general conduct of States, not how historical narratives motivate international legal behavior. This is peculiar, given that the practice of international law typically calls on lawyers to navigate the subjective historical narratives States perpetuate. The proposed thesis seeks to contribute to both the social science and IL scholarship by pursuing a comprehensive understanding of how a State’s historical narratives motivate the international legal claims it makes. This is done through a three-stage interdisciplinary inquiry. It first draws on social science insights to conjecture a theoretical model of how a State’s historical narratives may motivate a State’s international legal claims. Secondly, this model is tested against an empirical legal examination of China’s international legal claims from the period of the Unequal Treaties to present day. The hypothesis to be addressed here is whether the theoretical model provides an intelligible basis for explaining how and why China makes the international legal claims it does. The third stage takes into account the empirical findings to modify the conjectured theoretical model, and suggest implications therefrom for both the social science and IL scholarship. At a broader level, it is hoped the inquiry will spur readers to reflexively consider the degree to which the practice of international law is informed by the stories we tell ourselves.
Download the proposal from SSRN at the link.
September 3, 2022
Katz, Rozema, and Sanga on Women in U. S. Law Schools, 1948-2021 @elizabethdkatz @kyle_rozema @WashULaw @sarathsanga @NorthwesternLaw
We study the progress of women’s representation and achievement in law schools. To do this, we assemble a new dataset on the number of women and men students, faculty, and deans at all ABA-approved U.S. law schools from 1948 to the present. These data enable us to study many unexplored features of women’s progress in law schools for the first time, including the process by which women initially gained access to each law school, the variance in women’s experiences across law schools, the relationship between women’s representation and student achievement, and the extent to which women occupy lower status faculty and deanship positions. We contextualize our findings by situating them within the vast qualitative literature on women’s experiences in law schools and the legal profession.Download the article from SSRN at the link.
A lecture delivered as part of the Stout Research Centre's Eminent Victorians series. The series celebrates the contribution of a number of Victoria University of Wellington's distinguished scholars and gifted teachers of the past hundred years. In this lecture, Sir Ken Keith provides an insight into the work and legacy of Richard Cockburn Maclaurin, Victoria's first Dean of Law, first chairman of the Professorial Board, first Professor of Mathematics, and first and only Professor of Astronomy.Download the essay from SSRN at the link.
September 1, 2022
Lloyd on Recasting Canons of Interpretation and Construction into "Canonical" Queries @LloydEsq @WFULawSchool @WFULawReview
This Article advocates recasting the canons of construction into neutral queries rather than presumptions or directives of meaning. Such an approach would not only rectify problems with the canons discussed in this Article. It would also provide lawyers with highly useful "checklists" of semantic questions lawyers might otherwise overlook when interpreting and construing meaning in contexts of both private law (e.g., contracts) and public law (e.g., constitutional provisions and statutes). As a part of such advocacy, this Article explores in detail the following "canonical" queries and sub-queries (and the canons of construction they replace where applicable): the applicable text query, the plain meaning query, the ambiguity sub-query, the vagueness sub-query, the indeterminacy sub-query, the ordinary meaning query, the technical and term of art query, the grammar query, the punctuation query, the further meaning query, and the irony/non-literal meaning query. This Article also includes a detailed Appendix outlining further needed queries to be addressed in future articles. These include the ejusdem generis query, the noscitur a sociis query, the expressio unius query, the antecedent/subsequent query (rejecting the rule of the last antecedent), the anaphora query, the whole text query, the surplusage query, the absurdity query, the exercise of power query (rejecting general construction against the drafter), and queries of meaning through time. Additionally, to help direct proper application of the queries, this Article also explores the distinction between interpretation and construction.Download the article from SSRN at the link.