Malloy on Adam Smith's Market Jurisprudence @SUCollegeofLaw @SyracuseLRev

Robin Paul Malloy, Syracuse University College of Law, has published Adam Smith's Market Jurisprudence at 73 Syracuse Law Review 159 (2023). Here is the abstract.

Perhaps the most important and fundamental lesson of Adam Smith’s theory of jurisprudence for contemporary lawyers is that successful communities share a commitment to the rule of law and to the primacy of justice. As represented by the metaphor of the impartial spectator, the rule of law requires rational and impartial decision-making in accordance with due process. The rule of law is not merely an expression of economic or political power in some other form. In Smith’s theory, conflating the triadic relationship among law, economics, and politics undermines civic society and destabilizes the very pillars upon which civilization rests. Learning from Smith, we know that law and justice cannot simply be reinterpreted in terms of an economic calculus, nor can law and justice be understood as the mere exercise of power in service of identity politics. When the rule of law becomes confused with economics or politics, justice is in trouble. In the midst of such confusion, the language and mechanics of justice may survive as rhetorical and logical exercises in decision-making, but justice loses its ethical and aesthetic grounding. This loss of ethical and aesthetic grounding ultimately undermines the moral authority of law, reduces voluntary cooperation among people, and undercuts the sentiment of common interest.

Download the article from SSRN at the link.

CFP: Judicial Rhetoric: A Symposium

CFP: Judicial Rhetoric: A Symposium

April 5, 2024

University of Virginia School of Law

In collaboration with Case Western Reserve University

Judicial writing is a genre in flux. While court opinions remain both potent and controversial, many judges explicitly write for lay audiences or to entertain specialists. The resulting documents are quoted by the press, invoked at confirmation hearings, and memed in social media. Judges have been praised or blamed for cracking jokes, sharing hoary vignettes, and reciting song lyrics. Commentators might be forgiven for missing an older approach to judicial writing, one marked by a more technical, even tedious style.

We believe that literary and legal inquiries intersect in the judicial opinion and its rhetoric. Different methodologies are relevant to this joint inquiry, ranging from qualitative historical research to statistical modeling to literary scholarship.

We invite paper proposals for a one-day conference on the topic of law and rhetoric, broadly understood. Consider an illustrative set of questions:

• How do legal decisions incorporate or interact with poetic and narrative genres?
• How do literary genres represent legal argumentation and reasoning?
• What are the effects of new media and technology on legal practice?
• What is the role of the text, the author, and the audience in legal discourse?
• How can judges use rhetoric responsibly, or ethically?
• How does contemporary work on race, gender, sexuality, and ability bring together law and literature?
• How is rhetoric developed, situated, and used in specific institutional contexts (the academy, the court)?

A keynote address will be delivered by Judge Stephanos Bibas of the United States Court of Appeals for the Third Circuit. Judge Bibas was previously a professor of law and criminology at the University of Pennsylvania Carey Law School.

Papers may represent work at any stage of development but should be no more than 5,000 words or 10-12 minutes in length. (A paper may be a digest or portion of a longer work.) A second symposium, with its own call for papers, will be held at Case Western Reserve University in 2025.

By September 15, 2023, please send a short bio of 50-100 words and abstract of 250 words to Richard Re (rre@law.virginia.edu), Walt Hunter (weh38@case.edu), and Martha Schaffer (mws94@case.edu). Accepted papers will be due and circulated among participants in mid-March. Questions are also welcome.

McClain and Tait on Household Intimacy and Being Unmarried: Family Pluralism in the Novels of Anthony Trollope @ProfLMcClain @BU_Law @athenais1674 @URLawSchool

Linda C. McClain, Boston University School of Law, and Allison Anna Tait, University of Richmond School of Law, have published Household Intimacy and Being Unmarried: Family Pluralism in the Novels of Anthony Trollope at 72 Washington University Journal of Law & Policy 1 (2023). Here is the abstract.

Many critics rightfully claim that the marriage market and an inquiry into its innermost workings are at the heart of Anthony Trollope’s novels, but this Article argues that his novels also depict—on the periphery or sometimes just hiding in plain sight—a set of curiously nonmarital households. These households vary in form, but include widows and widowers living on their own, mothers and daughters living collectively, and male cousins sharing space and the work of daily living. Critics have debated whether Trollope was simply a realistic social historian—chronicling families as he found them— or whether he constructively used literary license to make broader points. On the first reading, Trollope presents a vast ecosystem of family pluralism, a terrain in which multiple kinds of families existed outside of the marital framework. Leaning more into literary imagination, it is possible to suggest that Trollope uses his range of household sketches to facilitate an exploration of how households and families can operate outside of the sexual and financial economies of marriage. In this context, his nonmarital households offer a rich composite portrait of how “functional” families operate, how the strength of intimacy flourishes outside of romantic relationships, and the challenges of maintaining a household outside of the marital norm. This Article offers a study of Trollope’s nonmarital families, with extended analysis of five novels in particular, The Bertrams, Rachel Ray, The Small House at Allington, Ralph the Heir, and Mr. Scarborough’s Family. In so doing, the Article presses on the question of Trollope's approach by exploring how he engages in both undertakings: to capture the range of domestic households both in small villages and the heart of Mayfair, and also to imaginatively explore the family as a site of affective possibility, multiple intimacies, and nonmarital ordering.

Download the article from SSRN at the link.

Littlewood on Sir George Grey's Machiavellian Constitutional and Fiscal Reforms in Aotearoa New Zealand, 1845-1876 @AKLLawSchool

Michael Littlewood, University of Auckland Faculty of Law, has published Sir George Grey’s Machiavellian Constitutional and Fiscal Reforms in Aotearoa New Zealand, 1845–1876. Here is the abstract.

This paper examines the evolution of the New Zealand tax system from 1845 to 1876. The key to this period is the New Zealand Constitution Act 1852 (UK), which was devised by the Governor, Sir George Grey, and which divided the Colony into six provinces. There were hardly any roads, so allowing isolated settler communities a degree of autonomy made obvious sense. Grey’s more sinister aim, however, was to retain control of the purse-strings and thus dictate policy generally. In this he was markedly successful: the Act gave the Governor tight control over the Colony’s two main sources of revenue (land sales and customs duties) and also over the military (which he used to confiscate Māori land). The provinces were free to build and operate roads, wharves, railways, schools, hospitals and so on — but they had to either persuade the Governor to supply funding or pay for them themselves. Twenty years later the difficulties of communication had been largely solved and the Colonial Government, spectacularly insolvent prior to Grey’s arrival, was financially secure. The provinces had served their purpose and in 1876 they were abolished. Since then, New Zealand has had one of the most centralised systems of government and taxation in the world, and the Māori people are still suffering from the catastrophic loss of their land.

Download the article from SSRN at the link.

Weinrib on Law, History, and the Interwar ACLU's Jewish Lawyers @Harvard_Law @OUPLaw

Laura Weinrib, Harvard Law School, is publishing Law, History, and the Interwar ACLU's Jewish Lawyers in In Between and Across: Legal History Without Borders (Jacob Katz Cogan & Kenneth Mack, eds., Oxford University Press, Forthcoming). Here is the abstract.

This chapter, for an edited volume on legal history honoring the career of Hendrik Hartog, explores the influence of Jewish lawyers’ identity on the strategies and goals of the interwar ACLU and, more broadly, on the emergence in the United States of a constitutional and court-centered concept of civil liberties. Between World War I and World War II, the ACLU evolved from a radical organization frankly committed to the demise of capitalism to an outspoken proponent of political liberalism and judicially enforceable individual rights. During the same period, nearly all of the ACLU’s lawyers—who increasingly defined the organization’s agenda and steered its activity from direct action to litigation—were Jewish. Many of them believed that the best bulwark against totalitarianism in America was to prohibit state-sanctioned orthodoxy, whether religious or ideological. That principle, however, manifested in vastly different visions of how free speech should be understood and implemented. This chapter evaluates the ways in which their experiences as Jews affected their views on pluralism, state power, minority rights, and judicial review. It focuses on the debate within the ACLU and between the ACLU and Jewish organizations over hate speech, group defamation, and the role of law in countering antisemitism. It argues that for the ACLU’s Jewish lawyers, casting civil liberties as core to American democracy served to deflect accusations of foreignness and to assert their belonging in a shared, if imagined, national heritage.

Download the chapter from SSRN at the link.

Smith on Originalism and the Meaning of "Twenty Dollars" @msmith750 @uidaholaw @CreightonLawRev

Michael L. Smith, University of Idaho College of Law, is publishing Originalism and the Meaning of 'Twenty Dollars' in volume 56 of the Creighton Law Review. Here is the abstract.

Originalism claims to provide answers, or at least assistance, for those hoping to interpret a Constitution filled with wide-ranging, morally loaded terminology. Originalists claim that looking to the original public meaning of the Constitution will constrain interpreters, maintain consistency and predictability in judicial decisions, and is faithful to ideals like democratic legitimacy. This essay responds with the inevitable, tough question: whether originalism can tell interpreters what the Seventh Amendment’s reference to “twenty dollars” means—both as a matter of original meaning and for interpreters today. While this appears to be an easy question, I demonstrate that rather than telling modern legal actors what “twenty dollars” means, originalism instead leads to a range of highly divergent possibilities. The original meaning of “twenty dollars”—applied today—may mean anywhere from twenty modern dollars, to a little under four hundred dollars, to just about seven thousand dollars. In doing so, I illustrate high-level debates between originalists and their critics, and how these debates tend to stray away from the needs of actual actors. Originalist appeals to construction and distinguishing semantic and legal meaning are cold comfort to the hapless attorney or judge who just wants to know what “twenty dollars” means. Moreover, if originalism cannot tell modern legal actors what “twenty dollars” means, there’s little hope that it will provide meaningful assistance in resolving questions over broader, loaded terms like “due process,” “cruel and unusual punishment,” “equal protection,” and other provisions that draw the bulk of scholarly attention and constitutional litigation.

Download the article from SSRN at the link.

Sandefur on the Origins of the Arizona Gift Clause @TimothySandefur @GoldwaterInst

Timothy Sandefur, Goldwater Institute, is publishing The Origins of the Arizona Gift Clause in the Regent University Law Review. Here is the abstract.

At least 45 state constitutions contain provisions barring the government from giving or lending public resources to private interests. Typically called “Gift Clauses,” they are a legacy of the nineteenth century, when many state and local governments were plunged into economic and political ruin as a consequence of subsidizing private industry. Over time, some state courts have essentially eviscerated them by adopting a lackluster “rational basis” standard, but in other states—notably Arizona—courts have diligently enforced these provisions, establishing precedent that lets government spend money for the public good, but prevents it from transferring taxpayer money or giving away other valuable benefits to private interests. This article examines the origins of the Arizona Constitution’s Gift Clause, and compares it with similar clauses in other state constitutions. Part I describes the philosophical and political concerns animating Gift Clauses. Parts II and III examine the history, focusing on the first and second waves of reform that led to the adoption of these clauses. Part IV discusses the origins of Arizona’s Gift Clause specifically, and draws conclusions relevant to today’s Gift Clause doctrine.

Download the article from SSRN at the link.

Sunstein on Fame and the Canon: Lessons from Connie Converse (with Notes on Liberalism) @CassSunstein @Harvard_Law @Kennedy_School

Cass Sunstein, Harvard Law School; Harvard University, Kennedy School, has published Fame and the Canon: Lessons From Connie Converse (with Notes on Liberalism). Here is the abstract.

Connie Converse, a folksinger from the 1950s, is sometimes described as “the first singer-songwriter.” Her tale raises enduring questions about opportunity, what is lost and what is found, and the role of serendipity and luck. It also offers lessons about canon formation and reformation. It even has something to say about the foundations of liberalism.

Download the essay from SSRN at the link.

Mercer and Black on Inspired Filth: Working Blue in Vaudeville America @UTKLaw @UMemLRev @UBSchoolofLaw

William Davenport Mercer, University of Tennessee, Knoxville, Department of History; College of Law, and Joel Black, University at Buffalo Law School, are publishing Inspired Filth: Working Blue in Vaudeville America in volume 53 of the University of Memphis Law Review. Here is the abstract.

The common law long held that words could be punished if their utterance might cause a breach of the peace. This article thus examines a seemingly simple question: When did American law transform this long-standing rule as it pertained to vulgar, filthy, or “blue,” words and begin to consider the simple utterance of those words as criminal actions in and of themselves? To answer that question, we looked to stand-up comedy and discovered a tradition of regulating filthy words that reached back to the post-Civil War era. There, the regulation of words as obscene coincided with the emergence of sanitized entertainment spaces, epitomized by vaudeville and the increased presence of women and children in public spaces. On these stages “blue” words were illicit; resistance from performers such as Sophie Tucker and Russell Hunting would only confirm the prevalence of this legal regulation. These performers and their regulation invite us to observe a post-war legal transition that was not just about citizenship and individual rights and to recognize that filthy words also underpinned a new legal order. A century before George Carlin, Richard Pryor, and Lenny Bruce famously pushed the boundaries of comic expression, “blue” language stood at the center of efforts to separate ordinary people from their words; the legal protections for speech were made contingent on their capacity to protect, and even generate, the profits of owners, managers, and investors. This post-war transformation of filthy words from common law to statute reminds us that the right to speak has long been subject to an economic hierarchy in which the interests of the wealthy are paramount. As vaudeville reveals, in modern America access to this right has been strongest when words reinforced this hierarchy and weakest when they threatened it.

Download the article from SSRN at the link.

Friedell on Judge Willam Marvin and the Law of Salvage

Steven F. Friedell, Rutgers Law School, has published Judge William Marvin and the Law of Salvage at 12 British Journal of American Legal Studies 2 (2023). Here is the abstract.

This essay explores the salvage decisions rendered by William Marvin during his time as a judge in Key West (1839-45; 1847-63). It also discusses his celebrated treatise on salvage law (1858), which cemented his reputation as one of America’s leading authorities on maritime law. It discusses why Marvin continued to act as a Superior Court judge for over a year after Florida ceased to be a territory. Lastly, it recounts how Marvin superintended the city’s notorious wrecking industry.

Download the essay from SSRN at the link.

Hornby and Akrawi on History Lessons: Instructive Legal Episodes from Maine's Early Years--Episode 3: An Enslaved Man Suing in Federal Court @GB2d

D. Brock Hornby and Emma Akrawi have published History Lessons: Instructive Legal Episodes from Maine's Early Years — Episode 3: An Enslaved Man Suing in Federal Court at 26 Green Bag 2d 101 (2023). Here is the abstract.

In 1837, Lambert Bercier of French Guadeloupe engaged Captain Sylvanus Prince of North Yarmouth, Maine, to transport Bercier's 30-year-old slave Polydore and Bercier's 17-year-old son Eugene to Maine on board the brig Galen. On the voyage, the Captain repeatedly assaulted Polydore. Polydore brought a civil suit for damages in federal court in Portland, Maine. The outcome was Polydore v. Prince, an 1837 federal decision by Judge Ashur Ware that is often ignored and sometimes mischaracterized, holding an enslaved man could sue in federal admiralty court for floggings on the high seas. This article revisits the case, drawing from recently accessed archived court documents.

Download the article from SSRN at the link.

Goluboff on "Charlottesville" as Legal History @RisaGoluboff @UVALaw

Risa L. Goluboff, University of Virginia School of Law, is publishing “Charlottesville” as Legal History in volume 1 of the Journal of American Constitutional History (2023). Here is the abstract.

This article was originally a plenary lecture at the American Society for Legal History 2022 Annual Meeting. It offers a preliminary legal history of the white supremacist and anti-Semitic violence that took place in my hometown of Charlottesville, Virginia on August 11 and 12, 2017, as well as a meditation on the process of writing such a history. It explores questions of autobiography, legal history methodology, legal normativity, narrative framing, and the role of law in political protest and violence.

Download the essay from SSRN at the link.

Kopel and Greenlee on This History of Bans on Types of Arms Before 1900 @SturmCOL @HeartlandInst @gunpolicy @CatoInstitute

David B. Kopel, Independence Institute; Denver University College of Law; Cato Institute, and Joseph Greenlee, The Heartland Institute; Firearms Policy Coalition; Millenial Policy Center, are publishing This History of Bans on Types of Arms Before 1900 in volume 50 of the Journal of Legislation (2024). Here is the abstract.

This Article examines all American state, territorial, and colonial laws that prohibited possession or sale of any type of arm. Also covered are English laws before 1776, and the Dutch and Swedish colonies in America. Among the arms studied are handguns, repeating guns, Bowie knives, daggers, slungshots, blackjacks, brass knuckles, and cannons. The U.S. Supreme Court's decision in New York State Rifle and Pistol Association v. Bruen directs lower courts to review modern gun control laws in part by analogy to historic laws before 1900. This Article provides the resources to do so, and offers its own analysis. Besides describing prohibitory laws, the Article details other types of regulation, such as forbidding concealed carry, forbidding all carry, restricting sales to minors, licensing dealers, or taxing possession. It is the first comprehensive study of historic American laws about knives, swords, and blunt weapons. It is also the first comprehensive study of the types of arms for which colonies and states required ownership by militiamen, by some men not in the militia, and by some women. The arms regulation laws and cases of the 19th century are examined in the context of the century's tremendous advances in firearms. The century that began with the single-shot muzzle-loading musket ended with modern semiautomatic handguns and magazines. Synthesizing Supreme Court doctrine with historic statutes and cases, the Article concludes that prohibitions on semiautomatic rifles and magazines lack foundation in American legal history. In contrast, other regulations, such as restricting the purchase of certain arms by minors, have a stronger historic basis.

Download the article from SSRN at the link.

Brown on Laughing All the Way to the Bench: The Role of Humor in Supreme Court Confirmation Hearings @ColumbiaLaw @columbiajla

Joanna Brown, Columbia Law School, is publishing Laughing All the Way to the Bench: The Role of Humor in Supreme Court Confirmation Hearings in the Columbia Journal of Law & the Arts. Here is the abstract.

Supreme Court confirmation hearings serve a unique role in our government: they are the only instances where future Justices and their judicial philosophies are televised and subject to the scrutiny of not only the Senate, but also the public. Especially as judicial nominations become increasingly politicized and polarized, appearing trustworthy, likeable, and sensible becomes essential to nominees’ candidacy. Humor thus arms judges with the ability to volunteer positive information, appear humble, showcase values, lighten difficult topics and otherwise bond with Senators. Perhaps more saliently, it enables them to dodge, correct, or mock contentious or unflattering lines of questioning. By studying when, why, and how nominees use humor, we can get a glimpse into their future jurisprudence and decisions on the Bench: avoiding a topic or making light of a question may seem harmless in the hearing, but can actually reveal a nominee’s position on an issue and serve an important truth-telling role.

Download the article from SSRN at the link.

Cunningham and Roemer on Whether a President Can Be Impeached for Non-Criminal Conduct: New Linguistic Analysis Says Yes @ClarkGSULaw @uroemer @GeorgiaStateU @GeorgiaStateLaw

Clark D. Cunningham, Georgia State University College of Law, and Ute Roemer, Georgia State University, are publishing Can a President Be Impeached for Non-Criminal Conduct? New Linguistic Analysis Says Yes as a Georgia State University College of Law Legal Studies Research Paper. Here is the abstract.

“Few terms in constitutional law have been so fiercely contested as ‘high crimes and misdemeanors’ [in the impeachment provision].” Although most legal scholars argue that this phrase does not limit impeachment to criminal conduct, reconciling this conclusion with the constitutional text has been a challenge. In this article, co-authored by a law professor and a linguistics professor, we offer what we believe is a new and persuasive approach that arises directly from the constitutional text itself for extending the scope of impeachment to non-criminal conduct. We reach this conclusion by applying the science of linguistics to computer-assisted review of digitized texts written around the period when the Constitution was drafted and ratified. The result of this empirical research is the proposal that “other high crimes and misdemeanors” in the constitutional text should be interpreted as “other high crimes” and “other high misdemeanors.” Our linguistic analysis further establishes that high misdemeanor was a phrase used during the founding era to refer to non-criminal misconduct that requires removal from office. We corroborate this analysis with historical research showing that during the century following the founding era, the U.S. House of Representatives recurrently enacted articles of impeachment using the term “high misdemeanor” to refer to non-criminal misconduct affecting governance.

Download the article from SSRN at the link.

Guerra-Pujol on Adam Smith and the Balliol College Conspiracy @PUCPR1 @UCF

F. E. Guerra-Pujol, Pontifical Catholic University of Puerto Rico; University of Central Florida, has published Adam Smith and the Balliol College Conspiracy. Here is the abstract.

Did Adam Smith’s academic superiors at Balliol College, Oxford conspire to search his private rooms, and was the young scholar then reprimanded by them for the heresy of reading David Hume? Although this 18th-century conspiracy story has been retold many times, its veracity has never been corroborated. This paper thus contributes to the Adam Smith literature in three ways: by assembling in one place the original reports of the Oxford conspiracy, by showing how this oft-told Adam Smith conspiracy story has evolved over the years, and by subjecting these accounts to lawyerly scrutiny.

Download the article from SSRN at the link.

Malloy on Adam Smith's Market Jurisprudence @SUCollegeofLaw @SyracuseLRev

Robin Paul Malloy, Syracuse University College of Law, has published Adam Smith's Market Jurisprudence at 73 Syracuse Law Review 159 (2023). Here is the abstract.

Perhaps the most important and fundamental lesson of Adam Smith’s theory of jurisprudence for contemporary lawyers is that successful communities share a commitment to the rule of law and to the primacy of justice. As represented by the metaphor of the impartial spectator, the rule of law requires rational and impartial decision-making in accordance with due process. The rule of law is not merely an expression of economic or political power in some other form. In Smith’s theory, conflating the triadic relationship among law, economics, and politics undermines civic society and destabilizes the very pillars upon which civilization rests. Learning from Smith, we know that law and justice cannot simply be reinterpreted in terms of an economic calculus, nor can law and justice be understood as the mere exercise of power in service of identity politics. When the rule of law becomes confused with economics or politics, justice is in trouble. In the midst of such confusion, the language and mechanics of justice may survive as rhetorical and logical exercises in decision-making, but justice loses its ethical and aesthetic grounding. This loss of ethical and aesthetic grounding ultimately undermines the moral authority of law, reduces voluntary cooperation among people, and undercuts the sentiment of common interest.

Download the article from SSRN at the link.

Rosenthal on Nonoriginalist Laws in an Originalist World: Litigating Original Meaning from Heller to Bruen @Chapman_Law @AmULRev

Lawrence Rosenthal, Chapman University School of Law, is publishing Nonoriginalist Laws in an Originalist World: Litigating Original Meaning from Heller To Bruen in volume 73 of the American University Law Review. Here is the abstract.

The Second Amendment is on a jurisprudential march. An individual right to “keep and bear arms” for purposes unrelated to militia or military service was not recognized until the Supreme Court’s 2008 decision, applying what it took to be the original meaning of the Second Amendment, in District of Columbia v. Heller. Last Term, the Court, in New York State Rifle & Pistol Association v. Bruen, invalidated a statute requiring a permit to carry concealable firearms on a showing of particularized need. There is a great deal to criticize in the Court’s treatment of the original meaning of the Second Amendment in the line of cases beginning with Heller and culminating in Bruen. That is the focus of Part I. Part I observes that by the time of Bruen, the Court had taken to ignoring the Second Amendment’s preamble altogether; a position difficult to reconcile with the view taken of preambles in both the framing era and Heller itself. The Court had also managed to both acknowledge and then ignore the demonstrable ambiguity in the meaning of the Second Amendment right to “bear arms.” These errors seriously distorted the Court’s purportedly originalist analysis. Part I is a relatively conventional example of the type of legal scholarship that dissects Supreme Court opinions. Part II takes a less familiar turn by focusing on the lawyering of those who defended the laws at issue in these cases. After undertaking to show that the Supreme Court’s decisions should not be regarded as autonomous, but instead as reflecting to a considerable extent the arguments pressed on it, Part II demonstrates that the Court’s errors mirror serious litigating errors by the attorneys defending the laws at issue in these cases. These flawed litigating strategies reflect, Part II shows, an incomplete grasp of the conceptual underpinnings of originalism as a method of constitutional interpretation. Lawyers defending statutes or other legal regimes without clear framing-era antecedents must develop a more sophisticated understanding of originalist constitutional interpretation. Part III offers a guide for avoiding the kind of errors reflected in the thus-far unavailing efforts to defend challenged firearms regulation from Second Amendment attack, in both Second Amendment litigation and other areas of constitutional law.

Download the article from SSRN at the link.

Call For Papers: 2023 Law, Literature, and Humanities Conference @lawlithum

From Professor Timothy Peters, University of the Sunshine Coast, the CFP for the 2023 LLHAA Conference:

It is our delight to share the call for papers for the 2023 Law, Literature and Humanities Association of Australasia Conference – “Deus Ex Machina: Law – Technology - Humanities”. This is going to be an excellent event and a wonderful opportunity to gather together as scholars across law and humanities.

 

The conference runs from 11-14^th December, hosted by Professor Kieran Tranter and the Human Technology Law Centre, QUT Law School (Brisbane, Australia) and will include a PhD/Research Student workshop on the 11th.

 

The conference team are organising a brilliant line-up, which includes:

• Keynote from Associate Professor Mitchell Travis, Director for the Centre for Law and Social Justice at the University of Leeds who will speak on “Dystopia Now”.
• Special Screening and discussion of Luis Gómez Romero and Desmond Manderson’s play “Twenty Minutes with the Devil”.

 

And more keynotes and plenaries will be announced soon!

 

Please see attached the call for papers flyer and further information is available at the conference website:

https://research.qut.edu.au/htlc/deus-ex-machina-law-technology-humanities/

 

CFP closes 4^th September – and you can submit either a general paper to the conference or to one of the numerous streams.

 

Please circulate amongst your networks and we look forward to seeing you in December!

 

 

Siegel on How "History and Tradition" Perpetuates Inequality: Dobbs on Abortion's Nineteenth-Century Criminalization @YaleLawSch @HoustonLRev

Reva Siegel, Yale University Law School, is publishing How "History and Tradition" Perpetuates Inequality: Dobbs on Abortion's Nineteenth-Century Criminalization in volume 60 of the Houston Law Review (2023). Here is the abstract.

In this Commentary, I show how the tradition-entrenching methods the Court employed to decide New York State Rifle & Pistol Ass’n, Inc. v. Bruen and Dobbs v. Jackson Women’s Health Organization intensify the gender biases of a constitutional order that for the majority of its existence denied women a voice in lawmaking and restricted women’s roles. The tradition entrenching methods the Court employed to decide Bruen and Dobbs elevate the significance of laws adopted at a time when women and people of color were judged unfit to participate and treated accordingly by constitutional law, common law, and positive law. The methods the Court employs are gendered in the simple sense that they tie the Constitution’s meaning to lawmaking from which women were excluded and in the deeper sense that the turn to the past provides the Court resources for expressing identity and value drawn from a culture whose laws and mores were more hierarchical than our own. Sampling their recent opinions, Part II of this Commentary shows that the conservative Justices have repudiated past practices when those practices expressed racism or nativism to which the Justices objected. Yet, Part III of this Commentary shows that in Dobbs the conservative Justices embraced past practices as the nation’s history and tradition, counting abortion bans enacted with the support of the nineteenth-century anti-abortion campaign without scrutinizing evidence that the campaign mixed arguments for protecting unborn life with arguments that banning abortion would prevent ethnic replacement and would enforce wives’ marital and maternal roles. In Part IV, I suggest that Justice Alito might have refused to defer to prejudice of the past as he did in Espinoza v. Montana Department of Revenue if he saw religious liberty, rather than abortion rights, at stake. There are several reasons for revisiting the claims about abortion, history, and tradition on which the Dobbs decision rests. Even if the Supreme Court itself never acknowledges Dobbs’s selective and inaccurate account of the historical record, as it acknowledged historical errors of Bowers v. Hardwick in Lawrence v. Texas, there is value in recognizing that the Court’s claims about the past have a politics. In demonstrating that the Court selectively defers to the past, this Commentary shows how the Court’s history-and-traditions method provides new justifications for enforcing old forms of status inequality. This Commentary builds the historical record critical to debates over the criminalization of abortion in state courts and legislatures. And it contributes to Professor Melissa Murray’s remarkable and wide ranging account of how the jurisprudence of Bruen and Dobbs is gendered: Children of Men: The Roberts Court’s Jurisprudence of Masculinity.

Download the essay from SSRN at the link.

Pfander on Public Law Litigation in Eighteenth Century America: Diffuse Law Enforcement for a Partisan World @NorthwesternLaw @FordhamLRev

James E. Pfander, Northwestern University School of Law, is publishing Public Law Litigation in Eighteenth Century America: Diffuse Law Enforcement for a Partisan World in volume 92 of the Fordham Law Review. Here is the abstract.

For some time, the Supreme Court has used standing doctrine to limit the authority of federal courts to entertain private suits aimed at enforcing public norms. In its most recent iteration, TransUnion LLC v. Ramirez, the Court invalidated a federal consumer protection statute on the theory that it wrongly empowered suit by individuals who lacked the requisite injury in fact. Shutting down private litigation was said to advance separation of powers values and to protect the enforcement discretion of a unitary executive branch. The Court characterized private enforcement as a novel feature of the 1970s, a time the Court viewed with evident suspicion as one that inaugurated interest group litigation. In truth, the tradition of interest group enforcement of public norms extends to the earliest days of the Republic. During the 1790s, Quakers and other anti-slavery activists secured federal legislation prohibiting American involvement in the international trade in enslaved people. Like other legislation of that period, the 1794 statute empowered both the federal government and private informers to enforce the law. The ensuing litigation, brought by private informers associated with such groups as the Providence Abolition Society, led to the forfeiture and sale of the offending vessels in the admiralty courts of Rhode Island and elsewhere. Drawing on federal archives, this Article recounts a history in which all three branches of the federal government – Congress, courts, and executive branch officials – viewed private litigation through what were called “popular” actions as an uncontroversial tool for enforcing public norms. One finds no objections based on Article II or III of the Constitution.

Download the article from SSRN at the link.

Laguardia on Pain That Only She Must Bear: On the Invisibility of Women in Judicial Abortion Debate @montclairstateu

Francesca Laguardia, Montclair State University, has published Pain That Only She Must Bear: On the Invisibility of Women in Judicial Abortion Rhetoric at 9 Journal of Law and the Biosciences 1 (January/June 2022).

The graphic and bodily facts of a legal question of rights are relevant to the courts, particularly in questions that directly implicate physical bodies and pain, such as right to die cases, or what level of search may be allowable and when. However, in the case of abortion, or more specifically the bodily ramifications of pregnancy and childbirth, this detail is conspicuously absent. This article, relying on a content analysis of over 220 legal opinions on abortion rights, documents this absence of rhetoric. Particularly in the context of other discussions of pain and physical health risks in these very same cases, the complete absence of an acknowledgement of the bodily ramifications of pregnancy and childbirth appears purposeful, if perhaps not conscious. Reviewing prior literature on abortion rights and abortion rhetoric, it is likely that this lack of language both reflects and reinforces an assumption of women’s roles as mothers, a general reluctance to acknowledge the totality of the sacrifices women make in giving birth, and the refusal to acknowledge women’s individual interests as whole persons.

Download the article from SSRN at the link.

Newly Published: Haiyan Lee: A Certain Justice: Toward an Ecology of the Chinese Legal Imagination (University of Chicago Press) @UChicagoPress

Newly published:

Haiyan Lee, A Certain Justice: Toward an Ecology of the Chinese Legal Imagination (University of Chicago Press, 2023). Here from the publisher's website is a description of the book's contents.

To many outsiders, China has an image as a realm of Oriental despotism where law is at best window dressing and at worst an instrument of coercion and tyranny. In this highly original contribution to the interdisciplinary field of law and humanities, Haiyan Lee contends that this image arises from a skewed understanding of China’s political-legal culture, particularly the failure to distinguish what she calls high justice and low justice.

In the Chinese legal imagination, Lee shows, justice is a vertical concept, with low justice between individuals firmly subordinated to the high justice of the state. China’s political-legal culture is marked by a mistrust of law’s powers, and as a result, it privileges substantive over procedural justice. Calling on a wide array of narratives—stories of crime and punishment, subterfuge and exposé, guilt and redemption—A Certain Justice helps us recognize the fight for justice outside the familiar arenas of liberal democracy and the rule of law.

Forthcoming from Oxford University Press: Stephen Bogle, Contract Before the Enlightenment: The Ideas of James Dalrymple, Viscount Stair, 1619-1695 @stephen_bogle @OxUniPress

 Forthcoming from Oxford University Press:

Stephen Bogle, Contract Before the Enlightenment: The Ideas of James Dalrymple, Viscount Stair, 1619-1695 (OUP, 2023) (Oxford Legal History). Here from the publisher's website is a description of the book's content.

Contract Before the Enlightenment represents a fresh investigation of what was then a ground-breaking approach to the law of contract written by James Dalrymple, Viscount Stair (1619-1695), lauded by some as the founding father of Scots law.

As a judge and public figure, Stair was at the forefront of both political and legal developments in Scotland from the 1640s until he died in 1695. This study explores the development and reception of his ideas relating to the law of contract on the eve of the Scottish Enlightenment. It is here that Stair's legal legacy is most evident, and where the imprint of Calvinism, Aristotelianism, and Protestant natural law can be found within Scottish legal thought.

In his legal treatise, the Institutions of Law of Scotland you find a sophisticated, innovative, and novel synthesis of Roman law with Stair's own Calvinist variant of a Protestant natural law theory. Yet it is also possible to find, once the theistic premises of Stair's natural law theory are dropped, the beginnings of a form of Scottish moral philosophy that rose to prominence in the eighteenth century.

Undoubtedly, Stair is not only a key figure within Scottish legal history but also significant to how we understand the transition of Scottish intellectual life from the execution of Charles I to the emergence of the Scottish Enlightenment.

Caton on Pluralism and Public Reason: An Entangled Analysis of Early Modern England @NDSU

James Caton, North Dakota State University, Department of Agribusiness and Applied Economics; American Institute for Economic Research; North Dakota State University, NDSU Center for the Study of Public Choice and Private Enterprise Department of AgriCommunity, is publishing Pluralism, and Public Reason: An Entangled Analysis of Early Modern England in Realism, Ideology, and the Convulsions of Democracy. Here is the abstract.

James Buchanan recognized that governing arrangements were certified by a constitutional moment. He also recognized that there existed a continual bargaining over these arrangements. There exists not a single constitutional moment, but an endless series of constitutional moments by which the social contract evolves. This work outlines a framework for interpreting the formation and transformation of the social contract and uses this framework to identify changes in the social fabric that enabled the development of pluralism in pre- and post-Reformation England. Proper framing of this transformation requires consideration of interaction between ideas and institutions across political, economic, legal, and religious spheres. Ideological diversity had enabled the English Reformation, an institutional shift that ultimately diminished the efficacy of cooperation between church and state. The development of a particularly liberal, English worldview reflecting growing autonomy for individuals and communities is evidenced by the growing use of language related to concepts of virtue, commerce, and liberty.

Download the essay from SSRN at the link.

Forthcoming: Justin Steinberg, Law and Mimesis in Boccaccio's Decameron (Cambridge University Press, 2023) @CambridgeUP @ArsScripta

Forthcoming from Cambridge University Press: Justin Steinberg, University of Chicago, Law and Mimesis in Boccaccio's Decameron (2023). Here from the publisher's website is a description of the book's content.

In Boccaccio's time, the Italian city-state began to take on a much more proactive role in prosecuting crime – one which superseded a largely communitarian, private approach. The emergence of the state-sponsored inquisitorial trial indeed haunts the legal proceedings staged in the Decameron. How, Justin Steinberg asks, does this significant juridical shift alter our perspective on Boccaccio's much-touted realism and literary self-consciousness? What can it tell us about how he views his predecessor, Dante: perhaps the world's most powerful inquisitorial judge? And to what extent does the Decameron shed light on the enduring role of verisimilitude and truth-seeming in our current legal system? The author explores these and other literary, philosophical, and ethical questions that Boccaccio raises in the Decameron's numerous trials. The book will appeal to scholars and students of medieval and early modern studies, literary theory and legal history.

Chapman on Slave Cases and Ingrained Racism in Legal Information Infrastructures @UMDLawLibrary @UMDLaw

Jennifer Elisa Chapman, University of Maryland School of Law, University of Maryland Thurgood Marshall Law Library, has published Slave Cases and Ingrained Racism in Legal Information Infrastructures in Antiracist Library and Information Science: Racial Justice and Community (K. Black and B. Mehra, eds., Emerald Publishing, 2023) (Advances in Librarianship; 52).

Present-day courts, practitioners, and scholars continue to cite to and rely upon cases involving slavery and enslaved persons to construe, interpret, and apply common-law principles of property, contract, family, tort, and other areas of the law. Often a case’s connections to slavery are not acknowledged in citations. This erasing of context causes institutional harms by both embedding slave-based legal analysis in American legal structures and condoning the detrimental impacts of slavery in society. The deleterious effects of slavery persist through citations to cases involving enslaved persons to support such prosaic present-day issues as warranties on window glass. Slavery may no longer be legal, but its long shadow persists in citations and, thereby, is embedded in the information systems informing the legal profession. The information infrastructures that categorize case law and inform legal research ingrain racism in the American legal system by perpetuating and masking case law connections to slavery and enslaved persons. The legal profession has recently been criticized for the continued citation to cases that state good law or persuasive authority but are rooted in the institution of slavery. This chapter builds on this important research and contributes a necessary element to the discussion – namely how legal information infrastructures contribute to continuing citation to slave cases and how the library and information science (LIS) field can help institute change and promote racial justice.

Download the essay from SSRN at the link.

Glushak on The Status of Loanwords in German @mgimo_en

Vasiliy Glushak, Moscow State Institute of International Relations (MGIMO), has published The Status of Loanwords in German. Here is the abstract.

The emergence of borrowed lexical units in legal texts is due to various factors. Borrowings are often synonyms for terms already used in legal discourse, or they denote a new phenomenon to which a German-language term is eventually chosen, which again leads to the existence of synonymous denotations. This phenomenon is also connected with the history of law. Borrowed elements were often components of paired expressions. Here are just a few examples that included borrowings: Erbschaft oder Succession - confirmieren und bestätigen - Contract oder Bündnis - contravenieren und zuwiderhandeln - Genehmigung und Approbation. The borrowed component was highlighted in writing and in print with a special font. The listing along with the borrowed component of an authentic, German word that reveals the meaning of the borrowing can be seen as a continuation of the tradition already described: fair und angemessen, fair und ausgewogen, fair und unparteiisch. Fair action is thus to be understood as action based on a reasonable, considered and impartial approach. A peculiarity of the German legal language is an active tendency to reject foreign-language terms imposed on it. This can be established by analysing the frequency of use of borrowed synonymous lexemes. The markers of the group of borrowed words are suffixes -tion, -tät, -ier. This table contains information about the use of these suffixes in the German legal texts: GG (Basic Law), BGB (Civil Code), the EU foundation documents (Treaty on European Union (VEU) and Treaty on the Functioning of the European Union (LISSABON), two important regulations (ROM I and ROM II) and one current regulation (VO2022/126) for comparison. The number of words with determinative borrowed vocabulary components -tät, -tion, -ieren in the EU documents is not comparable to the similar vocabulary in the German legal documents. On 412 pages of the Treaty on the Functioning of the European Union and 283 pages of the Treaty of Lisbon there are 503 and 278 words with -tät and over 1,000 words with -tion in both documents. Whereas in the 50 pages of the Basic Law and 422 pages of the GGU there are 44 and 122 words with -tion and 9 and 13 with -tät respectively. Verbs with -ieren are only 25 in the Fundamental Law and 64 in the GGU, while the EU texts mentioned above have between 200 and 300 examples of this. The use of loan words is probably intended to accelerate the unification of European law and to turn the language of legal documents into a kind of lingua franca that is generally understood by everyone working with the document, regardless of their nationality. EU law has a strong influence on the terminological system of German national law. Synonymous designations alternate in the texts of the law in similar contexts: in das Fahrzeug eingebaut, in ein Gerät eingebaut zu werden, im Anzeigegerät integriert, zusammengebaut, ineinander gebaut oder kombiniert. The frequency advantage of German-speaking terms allows us to conclude that the German language is resistant to borrowing. However, the trend towards a quantitative increase in the use of borrowed terms, often unwarranted when a native equivalent is available, makes the future of the terminological system of German language look with concern in view of the trend towards a globalised language of law.

Download the paper from SSRN at the link.

Dyzenhaus and Poole on The Old Commonwealth Model of Constitutionalism @LSEnews @UofTLaw

David Dyzenhaus, University of Toronto Faculty of Law and Department of Philosophy, and Thomas M. Poole, London School of Economics, Law School, have published The Old Commonwealth Model of Constitutionalism as LSE Legal Studies Working Paper No. 11/2023. Here is the abstract.

Comparative constitutional law is prone to two types of error. ‘Thin’ or overly formal accounts overlook important substantive dimensions of law and constitutions. ‘Thicker’ accounts often subsume the legal within politics or culture. Both types of error share a tendency towards presentism which stems, we argue, from insufficient consideration of the ‘jurisprudential perspective’ - the basic framework of legality which structures constitutional order and the ‘internal point of view’ that accompanies it, whereby actors within a legal order understand their association in terms of rights and duties. We turn to an older school of inquiry to see what such inquiry might entail. ‘Commonwealth comparative constitutional law’ explored questions of legality and sovereignty in the context of a collapsing British Empire. We assess the contribution of R.T.E. Latham, D.V. Cowen, Edward McWhinney and Geoffrey Marshall in the context of the Voters Rights legislation and litigation in 1950s South Africa in particular, and conclude by reflecting on the potential of this style of scholarship in our own era, where questions of sovereignty, exclusion and faux legality resurface in new and troubling forms.

Download the text from SSRN at the link.

Kerr on When To Admit Art as Evidence @PKUSTL @WUSTL

Andrew Jensen Kerr, Peking University School of Transnational Law, is publishing When To Admit Art as Evidence in the Washington University Law Review Online. Here is the abstract.

Jeffery Lamar Williams, better known as Young Thug, is the latest high-profile rapper to have his rap “lyrics” potentially entered into evidence as part of a criminal trial. Young Thug himself faces several racketeering, drugs and weapons-related charges. The rap clique he co-founded, Young Slime Life (“YSL”), has been branded by Atlanta District Attorney Fani Willis as a street gang, whose affiliate members together face well over 60 separate criminal charges, ranging from car hijacking to aggravated assault and murder. The case is sprawling. As is Young Thug’s vast catalog, from which the District Attorney intends to isolate some snippets of vocalizations as evidence of YSL’s alleged gang-like ambitions. In this Article, I suggest why this is problematic. But given the practical reality facing Young Thug, I offer a compromise position that comports with how the Constitution thinks about art and evidence law, and that also does justice to Young Thug’s innovative form of music. In the first line of this abstract, I place “lyrics” in quotation marks not to express skepticism towards rap as a genre, but to question whether a form of music as daringly sonic as Young Thug’s can be legibly reduced to the supposed text that undergirds it. I argue, consistent with my prior work on constitutional art speech, that it cannot. Here I make the limited claim that in keeping with evidence rules like Ga. Code § 24-4-403 (whether probative value of evidence is substantially outweighed by the danger of unfair prejudice) that District Attorney Willis may enter tracks like “Eww” (2014) or “Slime Shit” (2018) into trial as she intends to do later this year, but only in their original audio form, in full (not as parsed snippets) and without subtitles or lyric sheets. As a corollary claim, I argue that the court need not invite experts (whether police or “rap scholars”) to try to make sense of Young Thug’s music. It doesn’t need any explanation. Like most all popular music, its only measure is whether it is enjoyable for an audience.

Download the article from SSRN at the link.

Graber on Copyright Insight Out: A Legal Sociologist's Perspective @cbgraber

Christoph B. Graber, University of Zurich Faculty of Law, is publishing Copyright Insight Out: A Legal Sociologist's Perspective in Kritika: Essays on Intellectual Property, Volume 6 (Peters Drahos, et al., Cheltenham, UK: Edward Elgar, 2023) (forthcoming).

In my work as a researcher and teacher of legal sociology, copyright issues have always played an important role. I have been particularly interested in studying how copyright has changed under the influence of technology. The start of my career as a law professor in 1998 coincided with the invention of file sharing. In the years that followed, I used file sharing in my teaching to illustrate how digital technology challenged the effectiveness of government sanctions as a means of copyright enforcement. In my research, exploring the relationship between materiality and sociality, or how technological infrastructure and law interact, has become central. It focuses on the concept of normative expectations and the related question of how the law can regulate norm-building processes in a social context. Overall, the law and society perspective has proved useful in analysing the social impact of a new technology and in incorporating the insights gained into legal practice in order to make concrete suggestions for improvement.

Download the article from SSRN at the link.

Koppelman on Madison's Non Sequitur: A Comment on Vincent Phillip Muñoz, Religious Liberty, and the American Founding @AndrewKoppelman

Andrew Koppelman, Northwestern University School of Law, is publishing Madison's Non Sequitur: A Comment on Vincent Phillip Muñoz, Religious Liberty and the American Founding in American Political Thought: A Journal of Ideas, Institutions, and Culture. Here is the abstract.

Vincent Phillip Muñoz’s book, Religious Liberty and the American Founding, is a marvelous piece of historical reconstruction, bringing to vivid life the intellectual world of the framers. He gives the reader a sharply etched picture of their natural rights philosophy. But their world is not ours, and they relied on premises that we cannot share and which cannot now be the basis of public law. Today, when courts interpret the First Amendment’s religion clauses, they must articulate a rationale that will not be unintelligible or repulsive to many citizens. The interpretation also ought not to inflame the very divisions that the clause was intended to prevent. The fundamental problem is that the framers believed both that we are endowed with natural rights and that the government is incompetent and untrustworthy to adjudicate religious questions. Their natural rights philosophy, however, ultimately rested on religious foundations if it rested on anything at all. Muñoz offers us a valuable window into the world of Madison. But that world is not our world. If religious liberty is to remain a shared ideal in contemporary America, it will have to be under a different description than the one that Muñoz skillfully recreates. It must not presuppose theistic premises that many Americans reject.

Download the article from SSRN at the link.

Albert on Multi-Textual Constitutions @RichardAlbert

Richard Albert, University of Texas at Austin, School of Law, Department of Government; Yale University; University of Toronto, Faculty of Law; São Paulo Law School of Fundação Getulio Vargas FGV DIREITO SP; University of Ottawa, Faculty of Law; Universidad Externado de Colombia, Facultad de Derecho; Interdisciplinary Center (IDC) Herzliyah, Radzyner School of Law; Universidad de Especialidades Espíritu Santo; Airlangga University; Maharashtra National Law University Mumbai, is publishing Multi-Textual Constitutions in volume 109 of the Virginia Law Review. Here is the abstract.

Imagine the U.S. Constitution were a collection of several equally supreme constitutional documents rather than one single supreme constitutional document? In this alternative universe, speaking of “the Constitution” would no longer refer only to the official text written in 1787. It would now refer both to that document and to other official texts enacted and popularly recognized as comprising the essential documents of “the U.S. Constitution,” perhaps including the Declaration of Independence, the Emancipation Proclamation, and the Northwest Ordinance. This constitutional counterfactual opens our eyes to a long-standing error that has distorted our understanding of the constitutions of the world. Here is the problem: we have forever believed that constitutions come in two forms: “written” and “unwritten.” But this pervasive and omnipresent distinction is both incorrect and misleading. It is incorrect because all constitutions are in some way written, and it is misleading because all constitutions consist of unwritten rules. What is more, this traditional distinction between “written” and “unwritten” constitutions obscures a profound difference among written constitutions themselves. Some “written” constitutions—like the U.S. Constitution—consist of a single, supreme constitutional document of higher law while others consist of multiple constitutional documents with shared supremacy under law. Ubiquitous but unnoticed, constitutions comprising multiple texts are a unique constitutional form that has yet to be studied and theorized. I call them multi-textual constitutions. In this Article, I offer the first comprehensive introduction to multi-textuality. My purpose is to explain, illustrate, and theorize the design and operation of multi-textual constitutions with reference to current and historical constitutions all around the world. I show how they may be created both by design and evolution. I explain their strengths in relation to how they may improve constitution-making, open new avenues for constitutional innovation and flexibility, and forestall the onset of constitutional veneration. I moreover identify some of the problems they raise in law and society: the difficulty of constitutional identification, the challenge of constitutional obsolescence, and the conundrum of constitutional conflict. What results is the first scholarly inquiry into multi-textuality, a deep analytical dive into this distinct constitutional form, and a fascinating counterfactual question: what would change in the operation of the U.S. Constitution if it were a multi-textual constitution consisting of several documents of equal legal force?

Download the article from SSRN at the link.

Grajzl and Murrell on A Macroscope of English Print Culture, 1530-1700, Applied to the Coevolution of Ideas on Religion, Science, and Institutions @CESifoNetwork

Peter Grajzl, Washington and Lee University, Department of Economics; CESifo, and Peter Murrell, Department of Economics, have published A Macroscope of English Print Culture, 1530-1700, Applied to the Coevolution of Ideas on Religion, Science, and Institutions. Here is the abstract.

We combine unsupervised machine-learning and econometric methods to examine cultural change in 16th- and 17th-century England. A machine-learning digest synthesizes the content of 57,863 texts comprising 83 million words into 110 topics. The topics include the expected, such as Natural Philosophy, and the unexpected, such as Baconian Theology. Using the data generated via machine-learning we then study facets of England's cultural history. Timelines suggest that religious and political discourse gradually became more scholarly over time and economic topics more prominent. The epistemology associated with Bacon was present in theological debates already in the 16th century. Estimating a VAR, we explore the coevolution of ideas on religion, science, and institutions. Innovations in religious ideas induced strong responses in the other two domains. Revolutions did not spur debates on institutions nor did the founding of the Royal Society markedly elevate attention to science.

Download the article from SSRN at the link.

Coffee on Catharine Macaulay and Edmund Burke @KCL_Law @OxUniPress

Alan Coffee, King's College London, The Dickson Poon School of Law, is publishing Catharine Macaulay and Edmund Burke in Reconsidering Political Thinkers (Manjeet Ramgotra and Simon Choat, eds., Oxford: Oxford University Press, 2023). Here is the abstract.

This chapter examines the rival and contrasting political philosophies of Catharine Macaulay and Edmund Burke. The two were almost exact contemporaries in the eighteenth centuries and clashed on their understandings of the fundamental nature of political society and the correct the approach to take on reform. Macaulay and Burke were opposites in many ways. As a woman, Macaulay was a political outsider while Burke was a successful politician. Macaulay was a radical and revolutionary republican who based her ideas on a few clear, immutable philosophical truths, while Burke was a cautious and conservative thinker who valued stability and continuity, appealing to tradition rather than speculative principle. In the first section, I introduce Macaulay’s philosophy based around the core ideal of freedom as independence from arbitrary control. In the second, I present Burke’s contrasting organic, contextual and pragmatic approach. Finally, I consider some of the weaknesses in each philosopher’s work, particularly from the perspective of securing the equal citizenship rights of women and the members of minority social groups.

Download the essay from SSRN at the link.

Meese on The Constitutional Moment That Wasn't: 1912-1914 and the Meaning of the Sherman Act @NetworkLawRev @WMLawSchool

Alan J. Meese, William & Mary Law School, has published The Constitutional Moment that Wasn't: 1912-1914 and the Meaning of the Sherman Act in the Network Law Review (2022). Here is the abstract.

This short essay assesses and rejects Tim Wu’s contention that the period 1912-1914 was a Constitutional Moment that clarified the uncertain meaning of the Sherman Act. In the Curse of Bigness, Wu rejects the consumer-focused account of the Sherman Act articulated in Standard Oil v. United States, 221 U.S. 1 (1911) in favor of treating “Bigness” as an independent antitrust harm. Unlike other NeoBrandeisians, however, Wu does not claim that the original meaning of the Act dictates his preferred approach. Instead, he candidly concludes that determining the original meaning of the Sherman Act is an “impossible task.” Wu finds that meaning in the events of 1912-1914, namely the Presidential election of 1912 and subsequent passage of the Clayton Act and FTC Act in 1914. Taken together, Wu says, these events constituted “Antitrust’s Constitutional Moment.” Wu claims that the 1912 popular vote and 1914 legislation were a rejection of the Roosevelt-Debs support for national regulation of monopolies and thus “powerful democratic validation” for “the Wilson-Brandeis economic antitrust program.” This validation purportedly served as “democratic resolution of the uncertainty surrounding the purpose of the Sherman Act.” The classic Constitutional Moment occurred in 1937, when the Supreme Court acquiesced in repeated democratic responses to the Court’s protection for economic liberties. Wu offers a creative and thought-provoking interpretation of the events of 1912-1914. However, three distinct historical facts deprive these events of the sort of Constitutional status Wu proposes. First, President and candidate Taft rejected “anti-Bigness,” embracing Standard Oil’s consumer-focused Rule of Reason and safe harbor for reasonable conduct, i.e., normal industrial methods. Taft believed that “large aggregations of capital” were sometimes necessary to reduce production costs. Banning unreasonable conduct, he said, would prevent large firms from excluding their rivals and ensure low prices that shared efficiencies with the public. Presumably Taft’s voters — who supplied numerically decisive support for the popular majority Wu invokes — rejected anti-Bigness in favor of the consumer-focused Rule of Reason, depriving any Wilson-Brandeis approach of “democratic validation” at the polls. Second, as some have observed, Wilson did not mimic Brandeis’s anti-Bigness views. While campaigning, Wilson opined that “[t]he development of business upon a great scale, upon a great scale of co-operation, is inevitable, and, let me add, is probably desirable.” Wilson declared himself “not jealous of any process of growth, no matter how huge the result, provided the result was indeed obtained by . . . the processes of efficiency, of economy, of intelligence, and of invention.” These and similar statements rejected anti-Bigness and could not support any wholesale “democratic validation” of Brandeis’s views. Third, the Supreme Court did not acquiesce in any purported rejection of Standard Oil’s consumer-focused Rule of Reason. During the 1920s, the Court read Section 5 of the FTC Act narrowly and not as “stronger” than the Sherman Act, as Wu contends. The Court opined that “[i]f real competition is to continue, the right of the individual to exercise reasonable discretion in respect of his own business methods must be preserved.” The Court also held that Section 5 did not “interfere with ordinary business methods.” Thus, the Court assimilated Section 5 into Standard Oil’s Rule of Reason, with its safe harbor for “normal” and “ordinary” conduct, and not vice versa. Four years later the Court, per Chief Justice Taft, reiterated that Standard Oil had properly construed the Sherman Act. The Court’s post-1914 Sherman Act jurisprudence showed no sign of any legal change, constitutional or otherwise. Wu commendably concedes that the original meaning of the Sherman Act may not support his NeoBrandeisian vision. However, the Constitutional Moment he proposes did not occur. Proponents of a NeoBrandeisian Sherman Act must look elsewhere for legal authority to implement their vision.

Download the essay from SSRN at the link.

McGee on From Clair to Annalise: How To Get Away With Being a Black Woman Lawyer on Television @TheEthicsProf

Kellyn O. McGee has published From Clair to Annalise: how to get away with being a black woman lawyer on television in International Journal of the Legal Profession (available online here). Here is the abstract.

Clair Huxtable was the iconic mother, wife, and lawyer on The Cosby Show, an American television sitcom that premiered in September 1984. She appeared to be the perfect lawyer—partner in a law firm, prepared for every case, triumphant in every case, and never stepping over, or anywhere near, the boundary line of legal ethics—all while mothering children ranging in age from 5 to 20 years and supporting her equally successful obstetrician/gynecologist husband. In all her perfection, Clair presumably inspired young women to become lawyers during the middle 1980s through the early 1990s, and beyond. Clair Huxtable was a tough act to follow. The Black women lawyers who came after her on scripted television brought more realism to what it really means to be Black, woman, and a lawyer. These characters have helped direct the professional identities of their real counterparts in the decades since Clair entered our living rooms. This article explores the images of Black woman lawyer characters on scripted television since 1984 and how those images compare or contrast with Clair Huxtable and real-life Black women lawyers.

Cossman on #Metoo and the Corporation in Popular Culture @BrendaCossman @SULawRev

Brenda Cossman, University of Toronto Faculty of Law, is publishing #Metoo and the Corporation in Popular Culture in the Seattle University Law Review. Here is the abstract.

This paper considers #MeToo films and televisions shows that take place within corporations. Bombshell (2019), The Morning Show (2020), The Loudest Voice in the Room (2019) and The Assistant (2019) each explore the issue of sexual harassment and sexual assault within the corporation, loosely based on real storiesI consider the ways in which these films/shows focus on the corporation as the site of #MeToo events: sexual harassment and assault of female employees by powerful men. The representations are paradoxical. The corporate officers and directors are represented as culpable, as at best turning a blind-eye, at worst covering up the violence in the interest of their financial bottom line. Yet in most, the leadership of the corporation is ultimately called to action, if not account; powerful men are fired, the old boy network toppling (yet not). While initially part of the problem, they become part of the solution. Problems of sexual harassment and corporate governance are individualized, and the image of the corporation sanitized through the outcome.

Download the article from SSRN at the link. On a related issue, see Christine A. Corcos, Growing Up With Popular Culture in the Time of Title IX, 83 Louisiana Law Review 60 (2022).

Newly Published: Paul Raffield, Shakespeare's Strangers and English Law (Hart/Bloomsbury, 2023) @hartpublishing @BloomsburyBooks @uniofwarwick

Newly published: Paul Raffield, University of Warwick, Shakespeare's Strangers and English Law (Hart/Bloomsbury, 2023). Here from the publisher's website is a description of the book's contents.

Through analysis of 5 plays by Shakespeare, Paul Raffield examines what it meant to be a ‘stranger’ to English law in the late Elizabethan and early Jacobean period. The numbers of strangers increased dramatically in the late sixteenth century, as refugees fled religious persecution in continental Europe and sought sanctuary in Protestant England.

This is the third sole-authored book by Paul Raffield on the subject of Shakespeare and the Law. The others are Shakespeare’s Imaginary Constitution: Late Elizabethan Politics and the Theatre of Law (2010) and The Art of Law in Shakespeare (2017), both published by Hart/Bloomsbury.

Order online at www.bloomsbury.com – use the code GLR AP3UK for UK orders and GLR AP3US for US orders to get 20% off! Sign up to our email list to receive updates about our new titles.

 

Stern on Defining Obscenity Before Hicklin: Corrupting Texts in the Seventeenth and Eighteenth Centuries @ArsScripta

Simon Stern, University of Toronto Faculty of Law, is publishing Defining Obscenity before Hicklin: Corrupting Texts in the Seventeenth and Eighteenth Centuries in Literature on Trial (Sylvia Sasse and Matthias Meindl, eds.).

The “young person” has often served as one of the primary objects of solicitude for the regulation of obscenity, and while this figure was invoked often during the eighteenth and nineteenth centuries, it did not provide the only rationale; regulators were also concerned more broadly with public morals. This essay considers these rationales in English legal history, starting with late seventeenth century, which marks the earliest instances in which obscenity was expressly the basis for prosecution. The discussion shows how criminal prohibitions against obscenity were rejected in Read (1707) and resurrected in Curll (1727), and discusses the intermittent prosecution of obscene works in the later eighteenth century. The discussion also shows that the intent of the author or publisher had never provided a defense, even in the earliest cases. Although Hicklin (1868) is often characterized as the decision that eliminated intent from the analysis of obscenity, that decision merely reaffirmed what had always been the law.

Download the essay from SSRN at the link.

Sultany on Revolution in the Cambridge Handbook of Constitutional Theory @NimerSultany @CambridgeUP @rpbellamy1

Nimer Sultany, University of London, School of Oriental & African Studies, School of Law, is publishing 'Revolution', in The Cambridge Handbook of Constitutional Theory (Richard Bellamy and Jeff King – eds, Cambridge University Press) (forthcoming).

This chapter argues that an adequate assessment of revolutions (and the role of law in revolutions) is often stymied by historical exclusions and theoretical myopia. Historical exclusions centralise certain experiences and present sanitized and one-sided narratives of the revolutionary experiences they centralise, especially with respect to violence, slavery, and colonialism. On the basis of such ideological uses of history, theoretical accounts paper over these social and political realities in order to legitimate particular revolutionary constitutions and to elevate them to the status of a paradigm or ideal type. This paradigm serves as the yardstick by which other experiences are assessed. The main feature of this paradigm is that it postulates a distinction between political and social revolutions. It presents the American Revolution of 1776 as an exemplar for the political revolution that concerns itself with the establishment of government under law. In contrast, the French Revolution of 1789 is presented as an exemplar for the social revolution that also seeks to tackle social injustice. The deficiency of this paradigm construction is not merely methodological, but also substantive and normative. It reduces the plurality of the revolutionary phenomena despite the conceptual contestability of the revolution, whether in respect to its applicability to particular realities or the emphasis on continuity with, or rupture from, the extant order. It ignores the revolution’s dialectical nature by separating its assessment from the counter-revolution and thus exaggerates the role of violence in revolutions it disfavours, whereas it obscures the role of violence, slavery, and colonialism in the revolutions it favours. Finally, it presents a certain type of revolutionary constitutions (that are “political” not “social”) as ones that legitimate the polity despite the contestability of the revolutions that generated them, and notwithstanding the incoherence and instability of these constitutions. Moreover, this paradigm elevates counter-majoritarian revolutionary constitutions to be a product of an exceptional act of founding that need not be repeated (or radically revised) despite the constitutional order’s deficiencies, instability, and injustices.

Download the essay from SSRN at the link.

Watson on Metalinguistic Negotiation in Legal Speech @BWatson_theory

Bill Watson, Harvard Law School, is publishing Metalinguistic Negotiation in Legal Speech in Law & Philosophy. Here is the abstract.

This paper examines the role of metalinguistic negotiation in lawyers’ and judges’ speech about the law. A speaker engages in metalinguistic negotiation when the speaker uses a term to advocate for what that term should mean or how it should be used relative to context. While I doubt that legal practitioners employ metalinguistic negotiation in the ways that David Plunkett and Tim Sundell have proposed, it is plausible that practitioners do so in another way. Specifically, I contend that lawyers and judges sometimes use key terms in legal interpretation – e.g., ‘plain’, ‘meaning’, or ‘holding’ – to advocate for what those terms should mean or how courts should use them in adjudication. This suggests an intriguing role for metalinguistic negotiation in legal argumentation, one that could shed light on practitioners’ disputes in a range of cases dealing with constitutional, statutory, or common-law interpretation.

Download the article from SSRN at the link.

Forthcoming: Workshop on the Theme of Fantasy Legal Exhibitions, July 18-19, 2023 @SLSA_UK @aperrykessaris @KentLawSchool @BrunelLaw

A workshop on the theme of Fantasy Legal Exhibitions will be held on Tuesday 18 and Wednesday 19 July, 2023 in central London.

Organisers: Victoria Barnes and Amanda Perry-Kessaris

Funded by: Socio-Legal Studies Association and Kent Law School

Exhibitions range widely in form, including from spontaneous pop-up to enduring archive, material to digital, and localised to roving. They vary in purpose, including from documentation to deconstruction, resolution to disruption, inclusion to resistance, and query to explanation. They can include artefacts as varied as objects, records, images, sounds, statutes and specimens.

This hands-on workshop is an opportunity to explore exhibition as a legal research practice, and in particular to consider: What might you achieve, for scholarship and the wider world, through the practice of exhibition that cannot be achieved through other research activities? 

By engaging with expert curators, and completing a series of structured tasks in a range of exhibition contexts, participants will be prompted and facilitated to consider exhibition as part of the wider social, political, economic and cultural context of collection and curation; how they might ‘exhibit’ their legal research; and how in so doing they might enhance the quality of their research, as well as its potential impact, within academia and beyond.

Outputs from the event will include a Pop-up Museum of Fantasy Legal Exhibitions. 

For further details, including how to apply, click here.

Details also available here.

Deadline: 28 April 2023

Yeager on A History of Fruit of the Poisonous Tree (1916-1942) @CWSL_News

Daniel B. Yeager, California Western School of Law, has published A History of Fruit of the Poisonous Tree (1916-1942). Here is the abstract.

This is a history of a little-known stage within an otherwise well-known area of criminal procedure. The subject, “fruit of the poisonous tree,” explains the exclusion from trial of evidence (the fruit) derived from unconstitutional police practices (the tree). The Supreme Court first deployed the metaphor in 1939; exclusion of fruits by any other name, however, dates to before the Court began reviewing state convictions. While academic interest in the 1963-to-present phase of fruits is keen, the first quarter of what is now a century of history is taken as given, described in only the most conclusory terms. The 1916-1942 era began with a recently expanded federal criminal law, followed by an expanded review of convictions in the Supreme Court, whose energies Prohibition would divert to other issues of enforcement. As a result, development of fruits doctrine was taken up by the lower federal courts, led by the Second Circuit, which in turn was led by Judge Learned Hand. As the first to articulate the admissibility of so-called derivative evidence (as in copies of illegally seized papers), Hand & Co. were ahead of their time, extending their insights to related matters (harmless error, standing), some of which remain undeveloped to this day (as in evidence derived from coerced confessions). Mostly, the Second Circuit manifested a sensibility toward fruits that is distinct from the wooden, causal, torts-based angle the Supreme Court would come to adopt.

Download the article from SSRN at the link.

Ablavsky and Allread on We the (Native) People: How Indigenous Peoples Debated the U.S. Constitution @StanfordLaw @tannerallread

Gregory Ablavsky, Stanford Law School, and W. Tanner Allread, Stanford University, Department of History, have published We the (Native) People?: How Indigenous Peoples Debated the U.S. Constitution at 123 Columbia Law Review 243 (2023). Here is the abstract.

The Constitution was written in the name of the “People of the United States.” And yet, many of the nation’s actual people were excluded from the document’s drafting and ratification based on race, gender, and class. But these groups were far from silent. A more inclusive constitutional history might capture marginalized communities’ roles as actors, not just subjects, in constitutional debates. This Article uses the tools of legal and Native history to examine how one such group, Indigenous peoples, argued about and with the U.S. Constitution. It analogizes Native engagement to some of the foundational frames of the “Founding” to underscore its significance for current constitutional discourse. Like their Anglo-American neighbors, Native peoples, too, had a prerevolutionary constitutional order—what we here dub the “diplomatic constitution”—that experienced a crisis during and after the Revolution. After the Constitution’s drafting, Native peoples engaged in their own version of the ratification debates. And then, in the early republic, Native peoples both invoked and critiqued the document as they faced Removal. This Article’s most important contribution is proof of concept, illustrating what a more inclusive constitutional history might look like. Still, some of the payoffs are doctrinal: broadening the “public” in original public meaning, for instance. But the more significant stakes are theoretical. As this Article contends, by recognizing Indigenous law and constitutional interpretations as part of “our law”—in other words, the pre- and post-constitutional legal heritage of the United States—Native peoples can claim their role as co-creators of constitutional law.

Download the article from SSRN at the link.

Gould and Kelly Asking Who's Afraid of Imaginary Claims? Common Misunderstandings of the Origin of the Action for Pure Psychiatric Injury in Negligence 1888-1943 @OxfordLawFac

Imogen Gould, University of Oxford, Faculty of Law, and Catherine Kelly, University of Bristol, have published Who’s Afraid of Imaginary Claims? Common Misunderstandings of the Origin of the Action for Pure Psychiatric Injury in Negligence 1888-1943 at 138 Law Quarterly Review 58 (2022). Here is the abstract.

Discusses, with reference to case law, common misconceptions surrounding the origins and development of the negligence action for pure psychiatric injury between 1888 and 1943, and argues that fear of imaginary or fraudulent claims was not a characteristic of early rulings. Note: Funding Information: Our research was funded by a British Academy / Leverhulme Trust Small Grant, and we are grateful for this support. Declaration of Interests: None to declare.

Download the article from SSRN at the link.

Newly Published: Kathleen Brown, Undoing Slavery: Bodies, Race, and Rights in the Age of Abolition (University of Pennsylvania Press, 2023) @PennPress

Newly Published:

Kathleen Brown, Undoing Slavery: Bodies, Race, and Rights in the Age of Abolition (University of Pennsylvania Press, 2023). Here from the publisher's website is a description of the book's contents.

Undoing Slavery excavates cultural, political, medical, and legal history to understand the abolitionist focus on the body on its own terms. Motivated by their conviction that the physical form of the human body was universal and faced with the growing racism of eighteenth- and nineteenth-century science, abolitionists in North America and Britain focused on undoing slavery’s harm to the bodies of the enslaved. Their pragmatic focus on restoring the bodily integrity and wellbeing of enslaved people threw up many unexpected challenges. This book explores those challenges.

Slavery exploited the bodies of men and women differently: enslaved women needed to be acknowledged as mothers rather than as reproducers of slave property, and enslaved men needed to claim full adult personhood without triggering white fears about their access to male privilege. Slavery’s undoing became more fraught by the 1850s, moreover, as federal Fugitive Slave Law and racist medicine converged. The reach of the federal government across the borders of free states and theories about innate racial difference collapsed the distinctions between enslaved and emancipated people of African descent, making militant action necessary.

Escaping to so-called “free” jurisdictions, refugees from slavery demonstrated that a person could leave the life of slavery behind. But leaving behind the enslaved body, the fleshy archive of trauma and injury, proved impossible. Bodies damaged by slavery needed urgent physical care as well as access to medical knowledge untainted by racist science. As the campaign to end slavery revealed, legal rights alone, while necessary, were not sufficient either to protect or heal the bodies of African-descended people from the consequences of slavery and racism.