Newly Published: Pierre Schlag, Twilight of the American State (University of Michigan Press, 2023) @ColoLaw @UofMPress

Pierre Schlag, University of Colorado Law, has published Twilight of the American State (University of Michigan Press, 2023). Here from the publisher's website, is a description of the book's contents.

The sudden emergence of the Trump nation surprised nearly everyone, including journalists, pundits, political consultants, and academics. When Trump won in 2016, his ascendancy was widely viewed as a fluke. Yet time showed it was instead the rise of a movement—angry, militant, revanchist, and unabashedly authoritarian.

How did this happen? Twilight of the American State offers a sweeping exploration of how law and legal institutions helped prepare the grounds for this rebellious movement. The controversial argument is that, viewed as a legal matter, the American state is not just a liberal democracy, as most Americans believe. Rather, the American state is composed of an uneasy and unstable combination of different versions of the state—liberal democratic, administered, neoliberal, and dissociative. Each of these versions arose through its own law and legal institutions. Each emerged at different times historically. Each was prompted by deficits in the prior versions. Each has survived displacement by succeeding versions. All remain active in the contemporary moment—creating the political-legal dysfunction America confronts today.

Pierre Schlag maps out a big picture view of the tribulations of the American state. The book abjures conventional academic frameworks, sets aside prescriptions for quick fixes, dispenses with lamentations about polarization, and bypasses historical celebrations of the American Spirit.

 

UM Press has made the book available for reading online or downloading here. Excellent!

 

Simon on More True Confessions of a Legal Writing Professor: The Continuing Study of Legal Writing Should Be Deemed a Required Part of Our Professional Responsibility @uarizonalaw

Diana Simon, University of Arizona College of Law, is publishing More True Confessions of a Legal Writing Professor: The Continuing Study of Legal Writing Should Be Deemed a Required Part of Our Professional Responsibility in Arizona Attorney (2023). Here is the abstract.

This, at times, irreverent, tongue-in-cheek article is about how the Arizona State Bar should award professional responsibility continuing legal education credit for a seminar on legal writing. First, the article addresses the rules of professional conduct in Arizona. Second, the article discusses why effective legal writing should be included as an explicit part of a lawyer’s duty of professional responsibility. Third, the article discusses examples where courts have chastised lawyers for incomprehensible writing and tied that into a lawyer’s professional responsibility. Finally, the article contains recommendations to better encourage lawyers to continue learning about effective legal writing.

Download the article from SSRN at the link.

Tsai on After McCleskey @robertltsai

Robert Tsai, Boston University School of Law, is publishing After McCleskey in volume 96 of the Southern California Law Review (2023). Here is the abstract.

In the 1987 decision, McCleskey v. Kemp, the Supreme Court rejected a black death row inmate’s argument that significant racial disparities in the administration of Georgia’s capital punishment laws violated the Fourteenth Amendment’s Equal Protection Clause. In brushing aside the most sophisticated empirical study of a state’s capital practices to date, that ruling seemingly slammed the door on structural inequality claims against the criminal justice system. Most accounts of the case end after noting the ruling’s incompatibility with more robust theories of equality and meditating on the deep sense of demoralization felt by social justice advocates. One might be forgiven for assuming that defense lawyers abandoned structural inequality claims and the use of quantitative evidence in capital cases altogether. But that would be wrong and incomplete. For the first time, this Article recounts an unusual chapter of the fallout from the McCleskey litigation, focusing on the litigation and social activism in the wake of that decision. It draws on interviews with anti-death penalty lawyers working for or allied with the Southern Center for Human Rights in Georgia, including Stephen Bright, Ruth Friedman, Bryan Stevenson, and Clive Stafford Smith. It is also based on archival research into their case files. Drawing from these resources, this Article shows how a subset of cause lawyers in the late 1980’s and early 90’s had a remarkable reaction to that demoralizing ruling: they engaged in a distinctive form of “rebellious localism.” Instead of forsaking structural equality claims, they doubled down on them. Rather than make peace with what they believed to be an unjust ruling, they sought to subvert it. They also scrambled to formulate reliable quantitative evidence of intentional discrimination. Instead of accepting existing racial disparities in the criminal justice system, they went after prosecutors and state court judges to expose how racial minorities and poor people wound up on death row more often than their white, wealthier counterparts. Understanding this untold episode of legal history teaches us about the limits of judicial control over constitutional lawmaking, the unanticipated consequences of trying to insulate the legal order from accountability, and the possibilities for keeping clients alive and earning pro-equality victories when political conditions are inhospitable. For those who pay attention, there are lessons that might humble the most ideologically committed judges and inspire reformers who confront challenging legal circumstances.

Download the article from SSRN at the link.

Haddock and McNeil on Bibliography on Indigenous Rights in Canada, 1995-2022 @OsgoodeNews

Leslie Haddock and Kent McNeil, both of Osgoode Hall, have published Bibliography on Indigenous Rights in Canada, 1995-2022 as Osgoode Legal Studies Research Paper No. 4294966. Here is the abstract.

Note to users: This bibliography does not purport to be comprehensive, especially insofar as non-legal materials are concerned. Also, although we have done our best to be as accurate as possible, no doubt there are errors, for which we ask your forgiveness. An attempt has been made to include works that deal with more than one topic in the Table of Contents under each of the relevant headings. A bibliography covering the pre-1995 period, Indigenous Peoples in Canada: A Bibliography of Legal and Other Works to 1994, compiled by Kristen Clark, Leslie Haddock, and Kent McNeil, Osgoode Hall Law School, is posted on the same websites as this bibliography.

Download the bibliography from SSRN at the link.

Charles on The Dead Hand of a Silent Past: Bruen, Gun Rights, and the Shackles of History @JacobDCharles @PeppLaw @DukeLawJournal

Jacob D. Charles, Pepperdine University School of Law, is publishing The Dead Hand of a Silent Past: Bruen, Gun Rights, and the Shackles of History in volume 73 of the Duke Law Journal. Here is the abstract.

In June 2022, the Supreme Court struck down a state concealed carry law on Second Amendment grounds. In that decision, New York State Rifle & Pistol Association v. Bruen, the Court declared that future Second Amendment challenges should be evaluated solely with reference to text, history, and tradition. That test is essentially sui generis in the Court’s individual-rights jurisprudence. Yet it represents both an extension of an increasingly historically-focused Supreme Court case law and a harbinger of future doctrinal transformations in other domains. This Article critically assesses Bruen’s test, and in the process raises concerns about other areas of rights-jurisprudence trending in ever more historically-inflected directions. In critiquing Bruen’s method, the Article foregrounds the unsatisfying justifications for the novel test and its unworkable features. It underscores how Bruen’s emphasis on historical silence imbues an absent past with more explanatory power than it can bear—or than the Court even tries to justify. The Article then synthesizes and analyzes the results from the more than 100 lower federal court decisions applying Bruen, which reveals the test’s fundamental unworkability. On top of that descriptive and critical work, the Article makes several prescriptive arguments about possible judicial and legislative responses to the decision. For judges, the Article endorses and augments arguments about the use of neutral historical experts appointed by courts, identifies ways that lower courts can usefully underline Bruen’s flaws and mitigate its open texture, and suggests that courts are justified in narrowing Bruen from below. For lawmakers, it argues that when legislatures pass new gun laws, they ought to be explicit about four types of evidence for the law’s constitutionality that track Bruen’s new demands: the purpose for the law, the expected burden on armed self-defense, the precise nature of the problem to which the law is directed, and the historical tradition from which the law springs.

Download the article from SSRN at the link.

Call For Applications: Critical Times Workshops: Movement(s): June 5-9, 2023, University of Lucerne

From Steven Howe, University of Lucerne:

Call for Applications

Critical Times Workshop: MOVEMENT(S)

5-9 June 2023

University of Lucerne

 

We are pleased to announce the next in our annual series of Critical Times workshops.

 

The theme of this year’s programme is Movement(s), and you can find out more via the link. The programme has been designed with post-graduate students and early career researchers in mind, and features a series of tailor-made workshops, lectures, and seminars from leading scholars around the world, including:

 

• Radha D’Souza (What’s Wrong with Rights? Social Movements, Law and Liberal Imaginations)
• Debjani Ganguly (This Thing Called World: The Contemporary Novel in Global Form)
• Desmond Manderson (Danse Macabre: Temporalities of Law in the Visual Arts)
• Fiona Macmillan (Intellectual and Cultural Property: Between Market and Community)

 

Movement(s) will appeal particularly to those researching in interdisciplinary approaches to law and critical theory. Organised by a global consortium of partner institutions, the workshop offers a unique opportunity to learn and think together, and to meet like-minded students and scholars working in this unique research space, from different disciplines and from different places around the world.

 

The full programme of activities will be published soon. If you would like to receive the programme as soon as it is released, please sign up via email to lucernaiuris@unilu.ch.

 

The deadline for applications is 10 March 2023. Further details here.

 

All enquiries to steven.howe@unilu.ch.

 

 

Organised by

• Institute for Interdisciplinary Legal Studies – lucernaiuris, University of Lucerne
• Centre for Law, Arts and the Humanities, The Australian National University

 

in association with

• Institute of the Humanities and Global Cultures, University of Virginia
• Wits Institute for Social and Economic Research, University of Witwatersrand
• Faculty of Law, University of Roma Tre
• Adelaide Law School, University of Adelaide
• Faculty of Law, University of Hong Kong

 

Abrams on References to Robert Frost's Poetry in Advocacy and Judicial Opinions @MizzouLaw @mobarnews

Douglas E. Abrams, University of Missouri School of Law, has published References to Robert Frost’s Poetry in Advocacy and Judicial Opinions. Here is the abstract.

Professor Abrams authors a column, Writing it Right, in the Journal of the Missouri Bar. In a variety of contexts, the column stresses the fundamentals of quality legal writing — conciseness, precision, simplicity, and clarity.

Download the essay from SSRN at the link.

Dedek on The Tradition of Comparative Law: Comparison and its Colonial Legacies @CambridgeUP @LawMcGill

Helge Dedek, McGill University Faculty of Law, is publishing The Tradition of Comparative Law: Comparison and its Colonial Legacies in The Cambridge Handbook of Comparative Law (Mathias Siems and Po Jen Yap, eds., Cambridge University Press, 2023). Here is the abstract.

Disciplines traditionally designated as ‘comparative’ – Comparative Literature, History, etc – have radically called into question comparison as their apparent methodological foundation, even postulating its ‘obsolescence’. Such tendencies have also been informed and driven by the insight that the label ‘comparative’ is a legacy of the nineteenth century, when the ‘comparative method’ spread from biology and philology to other developing academic disciplines. This awareness of its roots in the peak period of colonialism and imperialism has opened ‘comparison’ itself to postcolonial critiques in these disciplines. ‘Comparison’ is no longer necessarily accepted as a timeless and ‘neutral’ methodological constant, but rather viewed as a contextual historical phenomenon. By contrast, ‘Comparative Law’ scholars have been more hesitant to challenge the role of comparison and the ‘innocence of method’ (Günter Frankenberg) so fundamentally. This chapter explores the role that a lack of disciplinary historical self-awareness plays in this hesitation. It interrogates, in particular, the traditional self-portrayal of Comparative Law as a ‘young’ discipline and the narrative of the famous 1900 Paris Congress as a mythical point of origin. The trope of such a ‘new beginning’ in or around 1900 insinuates a critical caesura that eclipses Comparative Law’s intellectual roots in the canon of nineteenth century comparative disciplines; and that absolves it from reflection on how these disciplines related to a colonial/imperialistic historical context. The chapter seeks to establish that the entanglement of our disciplinary history with that of the ‘comparative method’, that the coloniality of comparison itself is indeed an important subject in its own right. It suggests a context-sensitive recovery of the discipline’s institutional and discursive history, theoretically informed by scholarship specifically aimed at resisting ‘the mystifying amnesia of the colonial aftermath’ (Leela Gandhi).

Download the essay from SSRN at the link.

Stern and Moyn on To Save Democracy from Juristocracy: J. B. Thayer and the Tragic Origins of Constitutional Theory @samuelmoyn

Rephael G. Stern, NYU Law; Harvard Graduate School of Arts and Science, and Samuel Moyn, Yale University, have published To Save Democracy from Juristocracy: J.B. Thayer and the Tragic Origins of Constitutional Theory. Here is the abstract.

As many Americans once again worry that their democracy is hostage to judicial power, this Article recovers how the country’s first constitutional law professor set out on a mission to stave off the syndrome before it stuck. The first archival reconstruction of how James Bradley Thayer (1831-1902) arrived at his epochmaking theory of judicial deference — which remains the most influential piece of scholarship on American constitutional law in the country’s history — this Article demonstrates that Thayer was determined to preserve the democratic revolutions of the Civil War and Reconstruction and to transform America in the direction of British legislative supremacy. Scandalized by growing ventures to weaponize the federal judiciary so as to preempt the new American democracy, Thayer bet on something new in global history: mass democracy understood as an experiment in collective learning. The Article thereby provides a new periodization and transatlantic contextualization of the struggles over judicial fiat routinely associated with the early twentieth century: far from simply foreseeing the Supreme Court’s defense of laissez-faire to come, Thayer mobilized in the first instance in response to forgotten manifestations of an American juristocracy after the Civil War. His inspiration, moreover, came from witnessing England’s rapidly-expanding representative democracy in which Parliament — and not the courts — reigned supreme. And yet, as this Article emphasizes, Thayer failed in the long run. His democratizing fix, judicial self-restraint under the “clear error standard” — which this Article shows had the same English roots as his democratic faith — has tragically misled reform. An archival genealogy of rational basis review in constitutional law, this Article explains why Thayer called for it but also why his mission, in spite of its partial implementation after his death, now has to be rescued in its own right. Judicial self-restraint has not prevented the continuation and even the intensification of the very juristocratic syndrome Thayer rightly found so troubling. If Americans still remain with him at the dawn of our commitment to democracy, they will have to save it from judges in a new way all their own.

Download the article from SSRN at the link.

Jessica Silbey, Foreword to Copyright in the Street: An Oral History of Creative Processes in Street Art and Graffiti Subcultures @JSilbey

Silbey, Jessica, Boston University School of Law is publishing Foreward (to Copyright in the Street: An Oral History of Creative Processes in Street Art and Graffiti Subcultures by Enrico Bonadio) in Enrico Bonadio, Copyright in the Street: An Oral History of Creative Processes in Street Art and Graffiti Subcultures (Cambridge University Press, 2023). Here is the abstract.

Most of us think we are familiar with graffiti – lettering on trains or graphic images on walls that follow us as we walk by. But Enrico Bonadio’s new book on graffiti and street art opens a door to more complex and nuanced worlds of artists and their communities. The focus is on everyday creators of graffiti and street art. Built from nearly 100 interviews and hundreds of hours of observation, the book is filled with the voices of artists and vivid details of their plein air studios and interactions. Also present in the book is the author, who weaves the artists’ accounts of their practices with his voice and reactions as he experiences excitement and awe at the people he meets and art he witnesses being made. This is a special kind of book of scholarship; it is ethnographic and legal. And it is also colorful, funny, and enlightening. In this short foreward, I could not adequately summarize the book’s rich detail, and I would feel neglectful choosing only a few artists on which to focus. I will instead highlight some of the productive tensions around which the book is framed, a kind of stage-setting for the book’s unfolding. I will also situate the book within intellectual property scholarship more generally, celebrating its methodological and reformist perspective on the study of copyright and the evolving place of copyright law in the 21st century.

Download the foreword from SSRN at the link.

Call For Chapters: Communication and Legal Practice

 From Susan Heinzelman, University of Texas, Austin:

Call for Chapters: Communication and Legal Practice

Editors:

Dr Tatiana Grieshofer, Reader in Language and Law, Birmingham City University, tatiana.grieshofer@bcu.ac.uk

Dr Kate Haworth, Senior Lecturer, Aston Institute for Forensic Linguistics, Aston University, k.haworth@aston.ac.uk

 

We are seeking submissions for an edited collection on Communication and Legal Practice, intended to be submitted to Cambridge University Press. At this stage, we are inviting submissions of abstracts on any aspect related to communication and legal practice with a direct link to legal processes and procedures. The selected abstracts will be included in the proposal for the edited collection. Upon the acceptance of the proposal by the Cambridge University Press, the authors will be invited to write the chapters for the edited collection. The publication schedule is as follows:

 

28th February 2023 – submission of 250-word abstracts by email to tatiana.grieshofer@bcu.ac.uk

31st May 2023 – editorial decision communicated to authors

31st December 2023 – submission of 6,000-word chapters, including the bibliography

31st March 2024 – feedback communicated to authors

30th June 2024 – final submission of chapters

 

Please find more information about the proposed edited collection below:

 

Communication and Legal Practice

 

The edited collection focuses on the currently underexplored yet crucial research area on the interface of communication and legal practice. It presents the state-of-the-art research in applied linguistics directly relevant to procedural and administrative law and practice, with an emphasis on how legal procedure is constructed, negotiated and implemented through language. What is unique about the collection is its focus on the applied aspects of linguistic theory, methodology and implementation in the context of legal practice. The collection covers different aspects of communication in its widest sense: interpersonal and institutional; written and spoken; communication processes involved in elicitation, comprehension and formulation of arguments; communication at the heart of negotiation, mediation, decision-making and legal reasoning; communication throughout different stages of legal proceedings.

 

The chapters in the collection will thus relate diverse communicative aspects to legal practice, focusing specifically on procedural aspects of criminal proceedings, non-criminal proceedings (family, civil, tribunal proceedings) and judicial decision-making. The selling point of the edited collection is that it will showcase methodological approaches from linguistics which can enrich legal reforms and procedural change as well as promote ground-breaking interdisciplinary research.

 

This volume goes beyond the current published work on related topics (courtroom discourse, language and law, forensic linguistics) in its broad conceptualisation of communication, direct applicability to day-to-day legal practice, clear link to procedural aspects, and methodological interdisciplinarity. A unique strength of this collection is its foregrounding of the institutional and procedural, which tends to be backgrounded to the linguistic focus in much of the current literature. This collection will therefore find an audience with legal academics and professionals, as well as linguists, social scientists and critical theorists across a range of disciplines.