October 29, 2022

Diver and Bradshaw on The Grapes of Wrath: An Artful Jurisprudence @alice_diver @qubschooloflaw

Alice Diver, QUB School of Law, and Jules Bradshaw, Liverpool John Moores University Faculty of Law, have published The Grapes of Wrath: An artful jurisprudence? in volume 2021 of the Steinbeck Review. Here is the abstract.
By documenting the harsh realities of the era, The Grapes of Wrath (‘GOW’) calls to mind those distressing UN Country Reports that both describe and denounce avoidable landscapes of poverty, hunger, homelessness, and dispossession. Steinbeck embeds the novel’s harrowing images within an unforgiving framework of human rights violations, most of which flow directly from human greed. The novel’s prescient yet timeless warnings speak not only to the various humanitarian crises brought about by climate change and unethical commercial practices, but also to many ongoing, perennial global atrocities: corrupt political regimes, gendered injustices, ethnic cleansing, and displacement of entire populations. It is landscapes such as these that still serve to both spark and underpin refugee existence: the need for a compassionate system of asylum-granting, firmly grounded in human rights law, clearly remains as urgent now as it was in Steinbeck’s time. As witnesses to such chronic disregard for human dignity, readers of the novel are not only tasked with judging those responsible: we must also evaluate the perennial failings of the various global and domestic systems that have enabled and perpetuated such egregious rights violations. The final scene, drenched in symbolism, still serves as a quasi-courtroom: before the bared breast of a Lady Justice figure we become jurists, and cannot help apportioning blame for all that has been witnessed over the course of the Joad’s journeying. A close reading now, almost a century later, serves as a timely reminder that similar atrocities continue: migrant and refugee populations remain especially vulnerable, not least where they have been displaced by poverty or political crises from all that was once familiar. This article argues that the novel’s central focus on “social realism” demands much in the way of “moral and emotional effort” (Benson, 9) from the reader: we should leave the book with nothing less than a highly “active compassion for the dispossessed” (Wyatt, 12).
Download the article from SSRN at the link.

October 26, 2022

Hurst on Technology and the Law: The Automobile (edited by Ard and Novak) @bj_ard @WisLRev

James Willard Hurst, University of Wisconsin Law School (deceased), BJ Ard, University of Wisconsin Law School, and William J. Novak, University of Michigan Law School, have published Chapter Eight - Technology and the Law: The Automobile at 2022 Wisconsin Law Review 714. Here is the abstract.
In this chapter we are going to talk about some of the effects that the automobile has had upon the law and some of the effects that the law had upon the automobile. We could undoubtedly open up some worthwhile lines of thought if we talked about the automobile in relation to certain broader problems of which it is a part: for example, the effects of the internal combustion engine or the growth of all types of communication. But we shall have enough on our hands if we stick to the automobile, and even so in the limits of this chapter we can discuss at any length only the relation of the law and the passenger car. This is not merely an arbitrary limitation, however. Of the 32 million registered motor vehicles in the United States in 1940, substantially over 27 million were passenger cars, and a little under four and one-half million were motor trucks. Until the middle 1920s the proportion of trucks to passenger cars was much lower than this. Not only was the passenger car the center of the auto problem as a matter of gross figures; it was likewise the main aspect of the problem that men saw and reacted to. We may properly focus on it when we try to retrace the unplanned paths of the law’s responses to the motor vehicle.
Download the chapter from SSRN at the link.

October 19, 2022

Roger and Sobecki, Geoffrey Chaucer, Cecily Chaumpaigne, and the Statute of Laborers: New Records and Old Evidence Reconsidered @SebSobecki @euanroger @ArsScripta @jj_mcgovern

 From The Chaucer Review:

Euan Roger and Sebastian Sobecki, Geoffrey Chaucer, Cecily Chaumpaigne, and the Statute of Laborers: New Records and Old Evidence Reconsidered, 57 The Chaucer Review 407-437 (2022).

This article introduces two records that clarify the relationship between Geoffrey Chaucer and Cecily Chaumpaigne. The new documents also demonstrate the relevance of a known Chaucer life-record that previously had not been associated with this case. Our findings offer a radically different understanding of the documentary evidence and establish that Chaucer and Chaumpaigne were not opponents but belonged to the same party in a legal dispute with Chaumpaigne’s former employer, Thomas Staundon, who had sued them both under the Statute of Laborers. Chaumpaigne’s quitclaims for Chaucer offered the most expedient legal path under the Statute of Laborers for both Chaucer and Chaumpaigne to demonstrate that she had left her employment with Staundon voluntarily, as opposed to being coerced or abducted (raptus), before commencing work for Chaucer.

October 17, 2022

American Society for Legal History and Institute For Legal Studies, Wisconsin Law School Invite Applications For Hurst Summer Institute @ASLHtweets @WisconsinLaw @dwlachance

 From Daniel LaChance, Winship Distinguished Research Professor in History, Emory University


The American Society for Legal History and the Institute for Legal Studies at the University of Wisconsin Law School are pleased to invite applications for the eleventh biennial Hurst Summer Institute in Legal History. The two-week program features presentations by guest scholars, discussions of core readings in legal history, and analysis of the work of the participants in the Institute.  

The 2023 Hurst Institute will take place June 18 – 30, 2023. The 2023 session will be chaired by Sarah Barringer Gordon, Arlin M. Adams Professor of Constitutional Law and Professor of History at the University of Pennsylvania and Michelle McKinley, the Bernard B. Kliks Professor of Law at the University of Oregon Law School. 

Scholars in law, history and other disciplines pursuing research on legal history of any part of the world and all time periods are eligible to apply. Applicants with no formal training in legal history are encouraged to apply, and the selection committee welcomes applications from scholars at an early stage of their career (beginning faculty members, doctoral students who have completed or almost completed their dissertations, and J.D. graduates). 

Applications for the eleventh Hurst Summer Institute will be available on December 1, 2022 and accepted until January 15, 2023

For more information on how to apply, see the Hurst Institute’s website

October 14, 2022

New Publication: Anat Rosenberg, The Rise of Mass Advertising: Law, Enchantment, and the Cultural Boundaries of British Modernity (Oxford University Press, 2022) @anat_rosenberg @OUPAcademic @ReichmanUni

Anat Rosenberg, Reichman University, is publishing The Rise of Mass Advertising: Law, Enchantment, and the Cultural Boundaries of British Modernity (Oxford University Press, 2022). Here is a description of the book's contents. 

The Rise of Mass Advertising is a first cultural legal history of advertising in Britain, tracing the rise of mass advertising c.1840-1914 and its legal shaping. The emergence of this new system disrupted the perceived foundations of modernity. The idea that culture was organized by identifiable fields of knowledge, experience, and authority came under strain as advertisers claimed to share values with the era's most prominent fields, including news, art, science, and religiously inflected morality. While cultural boundaries grew blurry, the assumption that the world was becoming progressively disenchanted was undermined, as enchanted experiences multiplied with the transformation of everyday environments by advertising. Magical thinking, a dwelling in mysteries, searches for transfiguration, affective connection between humans and things, and powerful fantasy disrupted assumptions that the capitalist economy was a victory of reason. The Rise of Mass Advertising examines how contemporaries came to terms with the disruptive impact by mobilizing legal processes, powers, and concepts. Law was implicated in performing boundary work that preserved the modern sense of field distinctions. Advertising's cultural meanings and its organization were shaped dialectically vis-à-vis other fields in a process that mainstreamed and legitimized it with legal means, but also construed it as an inferior simulation of the values of a progressive modernity, exhibiting epistemological shortfalls and aesthetic compromises that marked it apart from adjacent fields. The dual treatment meanwhile disavowed the central role of enchantment, in what amounted to a normative enterprise of disenchantment. One of the ironies of this enterprise was that it ultimately drove professional advertisers to embrace enchantment as their peculiar expertise. The analysis draws on an extensive archive that bridges disciplinary divides. It offers a novel methodological approach to the study of advertising, which brings together the history of capitalism, the history of knowledge, and the history of modern disenchantment, and yields a new account of advertising's significance for modernity.

Link to the book on the publisher's website. 

October 12, 2022

Levinson and Ericksen on The Betrayal of the Humanities under National Socialism @UMNews @iupress

Bernard M. Levinson, University of Minnesota, and Robert P. Ericksen have published The Betrayal of the Humanities under National Socialism in The Betrayal of the Humanities: The University During the Third Reich (Bernard M. Levinson and Robert P. Ericksen, eds., Indiana University Press, 2022).
How did the academy react to the rise, dominance, and ultimate fall of Germany's Third Reich? Did German professors of the humanities have to tell themselves lies about their regime's activities or its victims to sleep at night? Did they endorse the regime? Or did they look the other way, whether out of deliberate denial or out of fear for their own personal safety? The Betrayal of the Humanities: The University during the Third Reich is a collection of groundbreaking essays that shed light on this previously overlooked piece of history. The Betrayal of the Humanities accepts the regrettable news that academics and intellectuals in Nazi Germany betrayed the humanities, and explores what went wrong, what occurred at the universities, and what happened to the major disciplines of the humanities under National Socialism. The Betrayal of the Humanities details not only how individual scholars, particular departments, and even entire universities collaborated with the Nazi regime but also examines the legacy of this era on higher education in Germany. In particular, it looks at the peculiar position of many German scholars in the post-war world having to defend their own work, or the work of their mentors, while simultaneously not appearing to accept Nazism.
The text is not available from SSRN.

October 7, 2022

Tehranian on The Subject Strikes Back: Intellectual Property, Visual Pleasure & Resistance in the Arts @johntehranian @SouthwesternLaw @AmULRev

John Tehranian, Southwestern Law School, is publishing The Subject Strikes Back: Intellectual Property, Visual Pleasure & Resistance in the Arts in volume 71 of the American University Law Review. Here is the abstract.
The metaphor of the hunt pervades photography, exhorting those behind the camera to load, aim and shoot. But having long served as the proverbial prey whose ‘captured’ images form the subject matter of so many works, subjects have begun to strike back. From Jay-Z and Emily Ratajkowski to Taylor Swift and Naruto the crested macaque, subjects are pushing for greater control over the exploitation of their personae and representation of their bodies. The Subject Strikes Back identifies this significant moment and critically assesses the legal landscape related to subject rights, with a particular emphasis on the copyright, trademark and right-of-publicity issues at play. Bookended with two case studies from the world of modern art—the legal controversies surrounding Richard Prince’s New Portraits series and Andy Warhol’s iconic serigraphs of pop star Prince—the Article surveys the limited protection afforded to subjects under current copyright, trademark and right-of-publicity law, ascertains the key issues (including those related to race, gender and socioeconomic status) at stake in any potential expansion of subject rights, highlights obstacles presented by the extant jurisprudence, and analyzes the prospects for change. Although sympathetic to the plight of subjects, the Article raises significant concerns about attempts to vindicate their interests through right-of-publicity and trademark law. Specifically, the Article posits that the protection of subject rights through publicity rights presents underappreciated problems related to copyright pre-emption, the blurry line between actionable advertising/merchandising uses of a likeness and non-actionable artistic uses (a distinction that carries significant implications for expressive freedoms) and gamesmanship and forum shopping in exploiting the patchwork nature of publicity rights protected at the state level. Meanwhile, although subjects have enjoyed some limited success wresting control over the use of their images through the Lanham Act and related unfair competition laws, the public policy concerns animating federal trademark doctrine make such reliance problematic, especially in light of incongruity and unpredictability of the relevant jurisprudence governing threshold issues of trademarkability and likelihood of confusion and the serious interference that subject-friendly holdings in trademark law can pose to the exercise of exclusive rights reserved for copyright holders. In the end, the prospects for vindication of subject rights may be best served if copyright law expressly recognized the potential for authorial interests for subjects—an outcome currently precluded by copyright’s authorship-as-fixation doctrine. The Subject Strikes Back therefore highlights the significant work our intellectual property laws still have to do to properly align creative contributions with the reward of rights, recognize the economic value and dignitary interests of subjects and balance the rights of fixers and users with the rights of subjects.
Download the article from SSRN at the link.

October 5, 2022

Sherwin on Law's Tacit Dimension: Audiovisual Proof of Incitement in the Impeachment Trial of Donald J. Trump @RKSherwin @NYLawSchool

Richard K. Sherwin, New York Law School, is publishing Law’s Tacit Dimension: Audiovisual Proof of Incitement in the Impeachment Trial of Donald J. Trump in the International Journal for the Semiotics of Law. Here is the abstract.
In arguing their case for the impeachment of Donald J. Trump for inciting a violent insurrection, prosecutors made extensive use of video images of Trump supporters violently overtaking Capitol police and ransacking the Capitol building once they had forced their way inside. But the rally video that immediately preceded Trump’s January 6 speech was ignored completely. Should it have been brought into the prosecution’s case? If it had been, how might it have aided the prosecution’s contention that Trump was guilty of inciting violent insurrection? In this article, I contend that the prosecution team’s insufficient understanding of how, and with what predictable behavioral impact, Trump’s video helped to incite his supporters to violent insurrection plausibly accounts for their failure to make use of it. This lost opportunity provides a useful test case for exploring law’s operation in the tacit dimension of thinking with pictures and sounds – a mode of thinking that is resistant but not impervious to critical reflection and collective deliberation. It can hardly be gainsaid that thinking with sounds and images occupies an increasingly influential, if not dominant role in society. Given this reality, we can ill-afford to ignore the implications of such a massive blind spot when it comes to the strategic composition and critical assessment of such a pervasive form of communication. If the fate of liberal democracy turns on preserving modes of public communication that are indispensable to the discovery and dissemination of factual truth in the quest for justice, then jurists and lay citizens alike must strive for greater audiovisual literacy.
Download the article from SSRN at the link.

Heppner on Rooted: Metaphors and Judicial Philosophy in Artis v. District of Columbia @RLHeppner @IndLRev

Richard L. Heppner, Jr., Duquesne University School of Law, is publishing Rooted: Metaphors and Judicial Philosophy in Artis v. District of Columbia in volume 56 of the Indiana Law Review. Here is the abstract.
This article examines how the metaphors in judicial opinions reveal judicial theories of lawmaking and judicial philosophies, through a close reading of Justice Ginsburg’s majority opinion and Justice Gorsuch’s dissenting opinion in the Artis v. District of Columbia, 138 S. Ct. 594 (2018). Artis was about what the phrase “shall be tolled” means in the federal supplemental jurisdiction statute, 28 U.S.C. §1367. Does a state-law claim’s statute of limitations pause or continue to run while the claim is in federal court? In holding that Congress used “stop the clock” tolling, an “off-the-shelf” legal device that pauses statute of limitations, Ginsburg’s majority opinion uses conventional, mechanistic metaphors to hold that. Gorsuch’s dissent uses more elaborate, agrarian metaphors to argue that Congress used a stricter “grace period” version of tolling because “[w]hen Congress replants the roots of preexisting law in the federal code, this Court assumes it brings with it the surrounding soil.” This article shows that Ginsburg’s mechanistic metaphors describe lawmaking like engineering and bespeak a mode of judicial interpretation based on purpose and precedent—while Gorsuch’s agrarian metaphors hark back to a pastoral conception of lawmaking and interpretation “rooted” in a mythical common-law history and tradition. It then compares Ginsburg’s more understated use of conventional metaphors to Gorsuch’s more performative metaphorical technique, arguing that their different rhetorical strategies reflect both their visions of lawmaking and their own interpretive philosophies. And it closes by showing how close attention to the metaphors they use can reveal the flaws in each approach.
Download the article from SSRN at the link.

October 4, 2022

Seigel on Memory Games: Dobbs's Originalism As Anti-Democratic Living Constitutionalism--and Some Pathways for Resistance @YaleLawSch @TexasLRev

Reva Siegal, Yale University Law School, is publishing Memory Games: Dobbs’s Originalism As Anti-Democratic Living Constitutionalism—and Some Pathways for Resistance in the Texas Law Review. Here is the abstract.
This Article examines originalism’s role in Roe’s overruling in Dobbs v. Jackson Women’s Health Organization. Through this case study the Article explores competing understandings of originalism. It shows that originalism is not simply a value-neutral method of interpreting the Constitution. Originalism is also a political practice, whose long-term goal has been the overturning of Roe. On this account, executive branch appointments politics matter critically to originalism’s authority, as do originalism’s appeals to constitutional memory to legitimate the exercise of public power. The Article shows that originalism is a practice of living constitutionalism that makes the constitutional order less democratic in several important ways. To demonstrate why this is so, the Article returns to originalism’s roots in the Reagan years and examines originalism’s origins in a backlash to the decisions of the Warren and Burger Courts. In 1980, for the first time—and continuously ever since—the Republican Party’s platform promised that “[w]e will work for the appointment of judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent human life.” I examine the family-values politics from which the quest to overturn Roe emerged, the judicial screening practices developed to pursue it, and the talk of law and politics employed to justify it. The Article reads Dobbs through a double lens. I first consider how originalists have evaluated the originalism of the opinion (some term Dobbs “living constitutionalist”), and then go on to show how Dobbs depends on the appointments politics and constitutional memory claims I have identified as part of the political practice of originalism. Dobbs’s living constitutionalism serves contemporary movement goals: I show how the history-and-traditions standard that Dobbs employs to overturn Roe threatens many of the same lines of cases targeted for reversal by the architects of originalism in the Reagan administration. The deepest problem with Dobbs, however, is that its originalism is living constitutionalism that makes our constitutional order less democratic. Dobbs restricts and threatens rights that enable equal participation of members of historically marginalized groups; Dobbs locates constitutional authority in imagined communities of the past, entrenching norms, traditions, and modes of life associated with old status hierarchies; and Dobbs presents its contested value-judgments as expert claims of law and historical fact to which the public owes deference. A concluding Part focuses on constitutional memory as a terrain of constitutional conflict and begins to ask questions about how claims on our constitutional past might be democratized, both inside and outside of originalism, in the aspiration to take back the Constitution from the Court.
Download the article from SSRN at the link.

Vats and Keller on Critical Race Theory as Intellectual Property Methodology @raceip @FAMULaw @PittLaw

Anjali Vats, University of Pittsburgh School of Law and Department of Communication, and Deidre A. Keller, Florida A & M University College of Law, have published Critical Race Theory as Intellectual Property Methodology in Intellectual Property Research (Irene Calboli and Maria Lilla Montagnani, eds., Oxford University Press, 2021). Here is the abstract.
This chapter traces the emergence of Critical Race Intellectual Property (CRTIP) as a distinct area of study and activism that builds on the work of Critical Legal Studies and Critical Intellectual Property scholars. Invested in the workings of power - but with particular intersectional attentiveness to race - Critical Intellectual Property works to imagine new, often more socially just, forms of knowledge produce. In this brief chapter, we lay out the origins of Critical Race Theory (CRT) and its central methods, articulate a vision of CRT, and contemplate how CRT's interdisciplinary and transnational methods might apply to intellectual property. In accomplishing the latter, we use India's commitments to access to knowledge in the recent Delhi University copyshop case and controversy over Novartis's drug Gleevec to show how CRT's central insights can open possibilities for reading intellectual property law with attunement to structures of racial power.
Download the essay from SSRN at the link.