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.

Guest Post: Christian Fritz On the Origins of His New Book, Monitoring American Federalism (Cambridge University Press, 2023) @UNM_Law @CambridgeUP

Guest Post from Christian Fritz, Emeritus Professor, University of New Mexico School of Law: On the origins of his new book, Monitoring American Federalism: The History of State Legislative Resistance (Cambridge University Press, 2023). See news of the publication here.

Monitoring American Federalism: The History of State Legislative Resistance is a digression from a much broader study examining the practice of democracy in America. After the publication of my earlier book, American Sovereigns: The People and America’s Constitutional History Before the Civil War, I was interested in exploring how the widespread acceptance of popular sovereignty affected the relationship of constituents to their representatives in the American context and how popular sovereignty emboldened the people to play a more active  role in the political process. In other words, how did the constitutional premise of a sovereign people as the constituent authority alter the understanding of the nature of political representation after the American Revolution?

That inquiry led me to examine the multiple tools through which the people, as constituents, expressed their will beyond the mere fact of voting—including the mechanisms of initiative, referendum, recall, and the right of instruction. Research into the right of instruction opened the door to multiple different ways in which Americans sought to instruct their representatives.

One expression of this dynamic included so-called senatorial instruction, the practice of state legislatures to instruct or direct the actions of their state’s representatives in the Senate. State legislatures believed they were entitled to issue instructions since state legislators selected U.S. Senators before the passage of the 17th Amendment.

Scholars had long been aware of the many resolutions state legislatures passed instructing their Senators on a host of substantive issues, especially during the struggles over the Bank of the United States during the Jacksonian period. Far less appreciated was the fact of a small sub-set of instructions that identified the legislature’s conclusion that the federal government was acting beyond its rightful authority as the basis of their senatorial instruction. In effect, state legislatures were “sounding the alarm” (a phrase they often employed) about perceived constitutional overreaching by the federal government, initiating a process seeking to redress the equilibrium of federalism between nation and states by using the tool of interposition that is a centerpiece of Monitoring American Federalism.

The search for the genesis of such a role for state legislatures led back to none other than James Madison’s and Alexander Hamilton’s contributions in their Federalist essays. Despite the barrels of ink spent over the years in examining the writings of Publius, the monitoring role for state legislature has largely been overlooked. This is but one new finding of the book.

Monitoring American Federalism demonstrates how states played a crucial role from the beginning of the republic in assessing the equilibrium of federalism within the American constitutional order. Unlike judicial review, interposition did not have immediate constitutional effect, but was designed to work through political pressure in attempting to maintain an equilibrium between the national and state governments by enabling state legislatures to express and coordinate their discontent over federal laws and measures.

In its use before the Civil War, interposition by states involved the conviction that elected officials, especially state legislators, but also individual citizens, juries, or the press, could properly scrutinize any expansive assertions by the federal government, not simply the Supreme Court. State interposition would be used to oppose many perceived threats, including the Alien and Sedition Acts, the War of 1812, federal tariffs, internal improvements, and pro-slavery laws.

      Interposition emerged as a response by critics worried that the Constitution’s grant of national powers would obliterate state authority. This early interposition formed an institutional way to acknowledge the divided sovereignty and to preserve the equilibrium of federalism. Properly understood at the time, interposition was not a claim that state sovereignty could or should displace national authority, but a claim that American federalism needed to preserve some balance between state and national authority.

Interposition as a constitutional tool became distorted with the rise of South Carolinian John C. Calhoun’s claims during the Nullification crisis of the 1830s. Historians today describe interposition as inherent in the states’ rights political tradition of defending slavery, which inexorably led to Southern secession and Civil War. This narrative ignores the practice of interposition before its appropriation by nullifiers and those invested in slavery who claimed the right of individual states to defy national laws and decisions of the Supreme Court. Nonetheless, there was a great divide between those who advocated for the rights of state legislatures to question the federal government on any constitutional issue through interposition—and those who supported nullification. The gulf between the two invocations of state interposition was underscored in the 1830s, when many of those who embraced interposition rejected nullification.

The decline of interposition after the Civil War can be traced to the growth of powers that the federal government assumed during the war. Inevitably, the Civil War Amendments placed additional power in the hands of the national government. Thus, as the enhancement of national authority altered the balance of federalism, states were left with their reserved rights, now subject to the constraints imposed on them by the new powers granted to the national government. Concerned that the balance of federalism had shifted dramatically, it is no wonder that the slogan of states’ rights was embraced after the war by those who resisted Reconstruction and the efforts to implement the Civil War Amendments.

By the 1870s, enhanced federal authority and the growing assumption that the Supreme Court was the natural arbiter of the constitutional relationship between the federal and state governments largely eclipsed the basic function of interposition to protest perceived imbalance in the equilibrium of federalism.

Interposition only resurfaced in the 1950s as some Americans sought a constitutional basis for white supremacy and racial inequality, particularly in opposition to integration. Later, a version of interposition termed “Judicial Federalism” emerged as a constraint on federal legislative power in Printz v. United States (1997) and use of interposition, “uncooperative federalism,” and nullification-like efforts resumed in resistance to federal laws including the Patriot Act of 2001, the Real ID Act of 2005, and the Affordable Care Act of 2010.

What remains is whether interposition as a sounding the alarm function of the states serves any useful purpose today as an expression of the people's sovereignty.

Eidelson and Stephenson on The Incompatibility of Substantive Canons and Textualism @beidelson @Harvard_Law @HarvLRev

Benjamin Eidelson and Matthew Stephenson, both of Harvard Law School, are pusblishing The Incompatibility of Substantive Canons and Textualism in the Harvard Law Review. Here is the abstract.

A majority of the Justices today are self-described textualists. Yet even as these jurists insist that “the text of the law is the law,” they appeal to “substantive” canons of construction that stretch statutory text in the direction of favored values, from federalism to restraining the administrative state. The conflict between these commitments would seem obvious - and indeed, candid textualists have long acknowledged that there is a “tension” here. But textualist theorists have also advanced several arguments to assuage or finesse that tension, and the sheer availability of those arguments has given the textualist Justices’ resort to these devices a respectability that, we argue here, it does not deserve. With the Justices now openly debating the compatibility of textualism and substantive canons, this Article surveys and critically assesses the assorted efforts to square this particular circle. Those strategies include (1) recharacterizing substantive canons as elements of the “background” against which Congress legislates, (2) linking them to “constitutional values,” and (3) restricting their use to resolving “ambiguities.” Each of those defenses, we argue, either commits textualists to jurisprudential positions they ordinarily denounce or, at best, implies such a narrow scope for substantive canons that nothing resembling their current use would survive. The Article thus concludes that textualists should either abandon their reliance on substantive canons or else concede that their textualism is not what they have often made it out to be.

Download the paper from SSRN at the link.

Tobia on Whether We're All Texualists Now @kevin_tobia @NYUasal

Kevin Tobia, Georgetown University Law Center; Department of Philosophy, is publishing We're Not All Textualists Now in the NYU Annual Survey of American Law (2023). Here is the abstract.

“We’re all textualists now,” announced Justice Kagan in 2015. In 2022, she rescinded the claim: “It seems I was wrong.” We’re not all textualists. This Article explores the meaning and impact of these two statements. It argues that the first statement was not mere hyperbole; it expressed that there is a significant sense in which modern American legal interpretive culture is textualist. The shared commitment is not a strict textualism, but a thin one; we all start with the text. The 2022 statement alleges that some “textualists” have begun to flout even the thin shared commitment to text. There is substantial uncertainty about whether our judicial interpretive culture will continue to be textualist.

Download the essay from SSRN at the link.

Havasy, Macey, and Richardson on Against Political Theory in Constitutional Interpretation @Maceyjoshua @VandLRev @Harvard_Law @CornellLaw

Christopher Havasy, Harvard Law School; Harvard University, Department of Government, Joshua Macey, University of Chicago Law School, and Brian Richardson, Cornell Law School, are publishing Against Political Theory in Constitutional Interpretation in the Vanderbilt Law Review. Here is the abstract.

Judges and academics have long relied on the work of a small number of Enlightenment political theorists—particularly Locke, Montesquieu, and Blackstone—to discern meaning from vague and ambiguous constitutional provisions. This Essay cautions that Enlightenment political theory should rarely, if ever, be cited as an authoritative source of constitutional meaning. There are three principal problems with constitutional interpretation based on eighteenth-century political theory. First, Enlightenment thinkers developed distinct and incompatible theories about how to structure a republican form of government. That makes it difficult to decide which among the conflicting theories should possess constitutional significance. Second, the drafters did not write the Constitution in the image of the philosophy of Montesquieu, Locke, or Blackstone. Instead, they developed a new form of government to meet what they perceived to be the needs of a nascent republic. And third, the Constitution itself departs from the dominant strands of Enlightenment political theory in crucial respects. For example, while some Enlightenment theorists advocated for precisely divided federal powers, the drafters favored a system of procedural checks, not formal separation. Thus, while Enlightenment works can be normatively persuasive or act as a guide to historical meaning, they should be treated as presumptively irrelevant in constitutional interpretation. Unless the party who would invoke an Enlightenment political theorist can produce evidence of consensus or common ground about that theory from an episode of American constitutional debate, the theorist’s prescriptions are no more probative than any other work of normative political theory.

Download the article from SSRN at the link.

Funk and Mayson on Bail at the Founding @kellenfunk @pennlaw @ColumbiaLaw

Kellen Funk, Columbia University Law School, and Sandra G. Mayson, University of Pennsylvania Law School, have published Bail at the Founding. Here is the abstract.

How did criminal bail work in the founding era? This question has become pressing as bail, and bail reform, have attracted increasing attention, in part because history is thought to bear on the meaning of bail-related provisions in state and federal constitutions. To date, however, there has been no thorough account of bail at the Founding. This Article begins to correct the deficit in our collective memory by describing bail law and practice in the founding era, from approximately 1790 to 1810. In order to give a full account, we surveyed a wide range of materials, including founding-era statutes, case law, legal treatises, and manuals for justices of the peace; and original court, jail, administrative, and justice-of-the-peace records held in archives and private collections. The historical inquiry illuminates three key facts. First, the black-letter law of bail in the founding era was highly protective of pretrial liberty. A uniquely American framework for bail guaranteed release, in theory, for nearly all accused persons. Second: Things were different on the ground. The primary records reveal that, for those who lived on the margins of society, bail practice bore little resemblance to the law on the books, and pretrial detention was routine. The third key point cuts across the law and reality of criminal bail: Both in theory and in practice, the bail system was a system of unsecured pledges, not cash deposits. It operated through reputational capital, not financial capital. This fact refutes the claim, frequently advanced by opponents of contemporary bail reform, that cash bail is a timeless American tradition. The contrast between the law-on-the-books and the practice of bail in the founding era, meanwhile, highlights the difficulty of looking to the past for a determinate guide to legal meaning.

Download the article from SSRN at the link.

Newly Published: Christian Fritz, Monitoring American Federalism: The History of State Legislative Resistance (Cambridge University Press, 2023) @UNM_Law @CambridgeUP

 Newly published:

Christian Fritz, Emeritus Professor of Law, University of New Mexico, Monitoring American Federalism: The History of State Legislative Resistance (Cambridge University Press, 2023) (Studies In Legal History). Here from the publisher's website is a description of the book's contents.

Monitoring American Federalism examines some of the nation's most significant controversies in which state legislatures have attempted to be active partners in the process of constitutional decision-making. Christian G. Fritz looks at interposition, which is the practice of states opposing federal government decisions that were deemed unconstitutional. Interposition became a much-used constitutional tool to monitor the federal government and organize resistance, beginning with the Constitution's ratification and continuing through the present affecting issues including gun control, immigration and health care. Though the use of interposition was largely abandoned because of its association with nullification and the Civil War, recent interest reminds us that the federal government cannot run roughshod over states, and that states lack any legitimate power to nullify federal laws. Insightful and comprehensive, this appraisal of interposition breaks new ground in American political and constitutional history, and can help us preserve our constitutional system and democracy.

 

Provides a comprehensive analysis of key controversies of federal and state relations from the 1790s to the present

          Sheds new light on the constitutional tool of state interposition

          Reveals how interposition forms part of a larger pattern of constitutional and political conflict –              and resolution in American history

Cambridge Core link here.

Toomey on "Religion," Before Darwin @profjamestoomey @HaubLawatPace @WashULRev

James Toomey, Pace University School of Law, is publishing "Religion," Before Darwin in volume 101 of the Wash. U. L. Rev. Here is the abstract.

The First Amendment singles out “religion” for special treatment, but the boundaries of that concept have always been difficult to describe. Nevertheless, there is a growing consensus that — at least as an original matter — “religion” in the First Amendment refers only to more-or-less theistic doctrines. But scholars have long struggled to explain why theistic doctrines would be worth treating differently than their alternatives. This Article argues instead that the concept of “religion” in the late-eighteenth century must have been broader than it is today, referring more generically to something like “worldview.” In the pre-Darwinian intellectual climate in which the First Amendment was written, all plausible worldviews were what we would today think of as “religious.” “Religion” was not a concept bounded by, or an alternative to, “science,” or a “secular lifestyle,” or “non-religious doctrines.” The concept necessarily encompassed all remotely-plausible accounts of the nature of the universe and foundations of ethics. And although our understanding of “religion” has fundamentally changed, the First Amendment incorporates the earlier, broader understanding. Reading “religion” in this broader way further helps explain contextual features of the First Amendment — its general purposes, its grammatical structure, and the nature of the rights its framers were trying to protect. And this interpretation lets us reckon with the purpose and contemporary relevance of the Religion Clauses, as a commitment not to privilege certain worldviews, but to ensure that questions about how we ought to live and why are a private, not governmental, concern.

Download the article from SSRN at the link.

CFP: Symposium on HBO's Succession @DePaulLaw @BandesSusan

From Professor Susan Bandes, DePaul College of Law:

Call for Papers

 

The DePaul Law Review will devote the third issue of its 73rd volume (slated for publication in Spring 2024) to a Symposium addressing the Emmy-winning scripted drama Succession from a legal and pedagogical point of view. The aim of this special issue is to collect in one place the insights of a variety of faculty members with different legal subject-matter expertise, as a resource for all who are interested in the use of this award-winning work for the teaching, practice, and study of law. The DePaul Law Review has already secured the participation of a number of distinguished scholars. 

      The DePaul Law Review invites proposals from others for two to four additional contributions to be included in this special issue. Proposals for a contribution of between 5,000 and 10,000 words are welcome from all who teach any area of law. (The print symposium will be accompanied by simultaneous online publication with live hyperlinks, allowing readers to access video links if the author desires).

      Potential contributions to the special issue might take a variety of forms. For example, these essays might:

• explore the legal implications of various plotlines through a variety of doctrinal lenses (e.g., mergers and acquisitions, wills and trusts, corporate law, employment law, criminal law).
• share classroom techniques for using Succession, and its scenarios or characters, in law teaching.  
• consider how matters such as race, gender, sexual orientation, and class are represented on Succession, or how the show depicts law, law enforcement, and lawyers. 
• draw on literary techniques to illuminate (or critique) Succession's approach to the myriad legal issues it presents.

Interested individuals should send an abstract outlining the topic and substance of their proposed contribution to the DePaul Law Review by email to Lizzie Carroll, Managing Editor of Lead Articles at lawreviewdepaul@yahoo.com, or to Prof. Susan Bandes, sbandes@depaul.edu, or Visiting Professor Diane Klein, dklein14@depaul.edu.  Abstracts (of 250 words at most) should be submitted by April 30, 2023. Proposals will be reviewed and invitations issued by June 1, 2023. Initial drafts will be due August 15, 2023, with final drafts due by October 1, 2023.

Tourkochoriti on Comparative Law and Philosophy of History: The Case of Free Speech in American and French Legal Thought @IoannaTourkocho @UniofGalwayLaw @CambridgeUP

Ioanna Tourkochoriti, Harvard Law School; National University of Ireland, Galway (NUIG) - School of Law; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law, is publishing Comparative Law and Philosophy of History: The Case of Free Speech in American and French Legal Thought in Comparative legal history, the Values, Purposes and Methods of Historical Comparison (Cambridge University Press, forthcoming 2023). Here is the abstract.

This chapter proposes to approach comparative rights jurisprudence from the perspective of philosophy of history. Focusing on the difference in the protection of speech in France and the US, it suggests that comparative history helps make sense of the formation of philosophical conceptions on the appropriate limits to free speech. Some philosophical ideas formed in response to historical facts led to the emergence of legal traditions. These traditions can help us understand the divergence in the protection of freedom of speech between France and the US. The central argument is that the balancing of freedom of speech and other values in France and the United States can be understood by reference to the role of the government and the understanding of liberty. The chapter aims to approach critically two different conceptions of republicanism and their significance for rights. The methodology that it follows is Gadamer’s hermeneutics. Gadamer describes human understanding as formed on the basis of prejudices. By that the means preliminary judgments. The chapter identifies some ideas which form the ex ante understanding of the jurists in a legal system concerning the necessity to protect one liberty over another. The difference in approach between France and the US indicates a profound difference which concerns the “imaginary institution” of society and the state on the two sides of the Atlantic.

Download the essay from SSRN at the link.

Park on Property and Sovereignty in America: A History of Title Registries & Jurisdictional Power @ksuenamu @YaleLJournal @GeorgetownLaw

K-Sue Park, Georgetown University Law Center, is publishing Property and Sovereignty in America: A History of Title Registries & Jurisdictional Power in volume 133 of Yale Law Journal (2023). Here is the abstract.

This Article tells an untold history of the American title registry—a colonial bureaucratic innovation that, though overlooked and understudied, constitutes one of the most fundamental elements of the U.S. property system today. Prior scholars have focused exclusively on its role in catalyzing property markets, while mostly ignoring their main sources in the colonies -- expropriated lands and enslaved people. This analysis centers the institution’s work of organizing and “proving” claims that were not only individual but collective, to affirm encroachments on tribal nations’ lands and scaffold colonies’ tenuous but growing political, jurisdictional power. In other words, American property and property institutions did not issue from sovereigns with established authority to govern a territory—as in the understanding drawn from European legal traditions—but rather preceded and ushered in colonial and U.S. sovereign title to Native homelands. Using established scholarship on the colonies and original research on county-creation for the United States, this analysis presents new questions about how the legal infrastructure of property furthered conquest, and how the progression of conquest on the ground produced the national jurisdiction and real estate market. It shows that in the haphazard process toward the American title registry, colonists borrowed the English legal forms of the registry and county to remake them into local nuclei of colonial territorial expansion—the key governmental forms that drew settlers into Native nations’ territories and encouraged them to claim lands by reassuring them that those claims would become real property. The United States adopted this colonial approach to perfecting the Discovery claims it inherited or acquired from other Empires. The timed map of county creation— not the creation of territories, nor states, nor treaties— most accurately tracks where the United States grew its jurisdictional power, and when. For between its plans to invade and ability to govern lands-- between mere white entitlement and actual title—it created counties and registries, before transitional territories and often before obtaining Native cessions to the lands by treaty. In this way, counties came to underpin the national jurisdiction and the local institution of the registry became the common and continuous infrastructure for the entire national real estate market. This history of the title registry underscores the conceptual and practical stakes of redressing the erasure of race from our understanding of legal institutions and legal development. In particular, it also challenges us to recognize less obvious ways that the legacies of conquest and enslavement survive to structure our landscape and lives. Race works to shape law and legal outcomes in different ways, including through the familiar dynamics of exclusion from institutional protections and benefits and the predatory risks of formal inclusion. But the registry’s history also illustrates a third phenomenon: legal innovation spurred by the willingness to view racial violence as an economic resource, or the development of new institutions and practices that may appear to be facially “race-neutral,” but promote the production of property value through the dehumanizing logic of race. The minimal, low-accountability design of the title registry encouraged the proliferation of market claims without authenticating them, prioritizing the collective goal of building jurisdictional power at the direct expense of Native and Black communities whose lands and people colonists rapaciously claimed as property for that ever-growing market. The result was an institution that continues to privilege the production of property value above all—above protecting individual property interests, and above sustaining homes, communities, and life, in ways that now affect us all.

Download the article from SSRN at the link.

Bamzai on Alexander Hamilton, the Nondelegation Doctrine, and the Creation of the United States @adityabamzai @UVALaw @HarvardJLPP

Aditya Bamzai, University of Virginia School of Law, has published Alexander Hamilton, the Nondelegation Doctrine, and the Creation of the United States at 45 Harvard Journal of Law and Public Policy 795 (2022). Here is the abstract.

In the period immediately preceding the Constitution’s adoption, New Yorkers engaged in a spirited debate over whether a proposed delegation from the State to the federal government authorizing collection of an impost would violate the clause of the New York Constitution that vested “supreme legislative power” in the State Assembly and Senate. Some, like Alexander Hamilton, believed that the clause did not bear on delegations to the federal government, but rather governed the relationship between the branches of the New York government. Others believed that a grant of impost authority impermissibly transferred legislative power away from the state legislature. This Article addresses the debate over delegation that occurred during this controversy—which, in the words of Alexander Hamilton, “begat” the Convention that wrote the U.S. Constitution. The Article also addresses the equally significant debates over delegation that occurred during the consideration of the Constitution itself. As this Article shows, the debates that led to and surrounded the Constitution’s adoption were in no small part debates about the legality of delegating sovereign legislative authority.

Download the article from SSRN at the link.

Bernick and Lens on Abortion, Original Public Meaning, and the Ambiguities of Pregnancy @evanbernick @jillwieberlens @NIU_Law @UARKLaw

Evan D. Bernick, Northern Illinois University College of Law, and Jill Wieber Lens, University of Arkansas School of Law, have published Abortion, Original Public Meaning, and the Ambiguities of Pregnancy as a Northern Illinois University College of Law Legal Studies Research Paper. Here is the abstract.

Relying on 1868 abortion statutes, the 2022 Supreme Court held in Dobbs v. Jackson Women’s Health Org. that no federal constitutional right to abortion exists. Mere months later, a petition for certiorari asked the Court to determine that “person” in the Fourteenth Amendment includes prenatal existence, which would require criminalization of abortion in all states. The petitioners cited Dobbs and claimed the authority of legal history in 1868 and before. These arguments will be heard again, and they are increasingly framed in terms of the “original public meaning” of the Fourteenth Amendment. This Article refutes them on their own terms. It looks at 1868, but it doesn’t stop at statutes, treatises, or dictionaries. Instead, it looks at the reality of pregnancy in 1868, as experienced by the public—in particular, by women and their doctors. This was a reality full of ambiguities. Pregnancy was not medically diagnosable until quickening; ideas of prenatal development were fluid and women let doctors take their miscarried fetal tissue and stillborn babies away for scientific study; and pregnancy loss was common and expected and impossible to distinguish from abortion. Women and their doctors lived these ambiguities. Nothing in the statute books changed them. These ambiguities similarly negate any possibility that the original public meaning of “person” in the Fourteenth Amendment included prenatal existence.

Download the article from SSRN at the link.

Cavedon on Early Stirrings of Modern Liberty in the Thought of St. Thomas Aquinas @EmoryLaw @LawandReligion

Matthew Cavedon, Emory University, Center for the Study of Law and Religion, has published Early Stirrings of Modern Liberty in the Thought of St. Thomas Aquinas. The CSLR Research Paper No. is forthcoming. Here is the abstract.

In a 2021 contribution to Politics and Religion, Jesse Russell writes that St. Thomas Aquinas “had a decidedly illiberal view of a government.” He says that Aquinas “advocates a government in which the people are not given public liberty” and endorses skepticism toward the view that Aquinas “prepare[d] the way for the mixed monarchy of the English constitution.” But Aquinas identified consent as the foundation of political society, approved of democratic selection of public authorities, deemed “the best” type of government to feature popular representation, and warned that “a scheme should be carefully worked out which would prevent” the rise of tyranny. He was no proto-reactionary. The great modern rapprochement between Thomism and liberal democracy was borne of ideas that stirred in Aquinas’s own writings eight centuries ago.

Download the article from SSRN at the link.

Rizzo: Towards a Dramaturgical Theory of Constitutional Interpretation @JessicaRizzo19 @SULawRev

Jessica Rizzo, University of Pennsylvania Law School, is publishing Towards a Dramaturgical Theory of Constitutional Interpretation in volume 45 of the Seattle University Law Review (2023). Here is the abstract.

Like legal texts, dramatic texts have a public function and public responsibilities not shared by texts written to be appreciated in solitude. For this reason, the interpretation of dramatic texts offers a variety of useful templates for the interpretation of legal texts. In this Article, I elaborate on Jack Balkin and Sanford Levinson’s neglected account of law as performance. I begin with Balkin and Levinson’s observation that both legal and dramatic interpreters are charged with persuading audiences that their readings of texts are “authoritative,” analyzing the relationship between legal or theatrical authority and tradition. I then offer my own theory of constitutional interpretation organized around realizing the potential of the text. I test this theory against provisions of the U.S. Constitution written at varying levels of abstraction, using dramaturgical analogies to identify an appropriate interpretive framework for each type of provision. In doing so, I discover parts of the Constitution where merely applying the text “as written” in an originalist sense would be impossible. I argue that a dramaturgical approach to constitutional interpretation has advantages over previously proposed literary criticism-inflected approaches because dramaturgy answers to the demands of the present where these other approaches mainly look backward.

Download the article from SSRN at the link.

Cronan on "Give Us Free": The Influences of Steven Spielberg's Amistad on Legal Scholarship and the African Voices Behind United States v. Schooner Amistad @BU_Law

Liam Cronan, Boston University School of Law, is publishing 'Give Us Free': The Influences of Steven Spielberg’s Amistad on Legal Scholarship and the African Voices Behind United States v. Schooner Amistad in volume 56 of the Int'l J. Afr. Hist. Stud. (Nov. 2023). Here is the abstract.

How can a Spielberg film exemplify a historiography and impart legal historians and scholars of African studies alike with an innovative perspective? In Steven Spielberg’s Amistad, Cinqué’s famed exclamation “give us free” reverberated not only into popular culture but also the legal academy. Before the 1990s, legal scholars referenced United States v. Schooner Amistad, if indeed they referenced it at all, in terms of maritime law and property rights, absent an inquiry into the African peoples whose hardships stood at the center of the case. Then came Spielberg’s film, which made clear the brutality and unimaginable violence withstood by Cinqué and others taken captive. As a result, American legal scholarship finally began to wrest with issues of race and the role of the United States Supreme Court in upholding slavery and elevate the African peoples to whom the story of Amistad belongs. In analyzing the film as a source of legal history, this review essay will explore the state of legal scholarship on United States v. Schooner Amistad before the 1997 film, drawing attention to earlier scholarly confusion on how to classify the case. It will then challenge legal history’s boundaries by analyzing forty-two post-1997 journal articles relating to the film, arguing that scholars at last began to recognize themes of race, forced migration, and enslavement, central to the Amistad case, as a direct result of the film’s unique influences on the legal academy. In turn, the yet unexplored intersection of these sources will invite inquiries into whether Amistad was truly an “anti-slavery” case and open space for further scholarship on cases similarly related to transatlantic slavery that never earned the likes of a Spielberg film.

Download the article from SSRN at the link.

Gaughan on Voting in Colonial and Revolutionary America @GaughanAnthonyJ @DrakeLawSchool

Anthony J. Gaughan, Drake University Law School, is publishing Voting in Colonial and Revolutionary America in the Oxford Handbook of American Election Law (forthcoming). Here is the abstract.

This chapter examines the history and practice of voting in colonial and Revolutionary America. When courts consult history for guidance in election law cases, judges and litigants usually focus on three time periods: the drafting of the Constitution in 1787, the adoption of the First Amendment in 1791, and the adoption of the Fourteenth Amendment in 1868. But many of the most important attributes of 21st century American election law trace back to election practices that predated the Constitution. During the 180 years between the founding of the Jamestown Colony in 1607 and the Constitutional Convention of 1787, American elections developed distinctive features that can still be found in state and federal elections in the United States. This chapter provides an overview of voting and democracy in the English colonies of North America as well as in the 13 states established during the American Revolution. A remarkable variety of voting systems characterized colonial and Revolutionary elections. The 3,000 miles of ocean that separated Britain from its American colonies—and the hundreds of miles of coastline that separated the colonies from one another—promoted the development of unique and diverse election features. Colonial legislatures developed a wide range of approaches to voter and candidate qualifications, voting methods, election scheduling, term lengths, and a host of other election laws and procedures. The decentralized nature of colonial elections remains a central feature of American election law. Nevertheless, some common themes emerged in early American elections. The voting process matured rapidly in the eighteenth century. Election rules and voting innovations that took hold in one colony often spread to others. Most important of all, the Americans developed a concept of representation that diverged sharply with that of the mother country. By the time the colonists declared their independence from Britain in 1776, a distinctively American approach to voting and elections had emerged in North America. This chapter is organized into four parts. The first describes the political framework in which the American colonies conducted elections in the 1600s and 1700s. The second section details the laws that governed suffrage rights in the colonies. The third explores the process of voting in colonial America. The final section examines how the Revolution influenced voting laws and practices in the new American states of the 1770s and 1780s.

Download the essay from SSRN at the link.

Afterlives of Empire in the Public Imagination: September 21-22, 2023, Sapienza University of Rome @AEPIConference @SapienzaRoma

 

From Tiziano De Marino, Department of European, American and Intercultural Studies, Sapienza University of Rome: 

Afterlives of Empire in the Public Imagination

Sapienza University of Rome

21-22 September 2023

The resurgence of nationalist ideologies in Europe and the US has reignited interest in the histories and legacies of modern Empires. As of late, this has been strongly visible in the UK. The role of imperial nostalgia in the debates that paved the way for Brexit has drawn the attention of historians and cultural critics to how the memories and myths of Empire informed Europe-free imaginaries. Recent historical works have fruitfully investigated the legacies and memory of Empire in the UK and the unaddressed legacies of colonial rule, such as, in Caroline Elkins’s phrase, its “legac[ies] of violence”.

Taking its cue from the renewed interest in imperial history, this conference will center on the memory of new imperialism (1870-1914) and its immediate aftermath, focusing on key moments from the postwar years to the present moment. It will start from the premise that “Empire” was a cultural, institutional, and political entity that wove together colonialism, propaganda, predatory capitalism, militarism, missionary nationalism, biological racism, martial masculinity, and a heavily ideologized production of knowledge. On this assumption, the conference will investigate uses and reinventions of imperialist figures, myths, and ideas, focusing on fiction, memoirs, poetry, graphic narratives, popular history, TV series, films, and video games, as well as on the cross-fertilization of post-imperial discourses.

Keynote speakers: Corinne Fowler (University of Leicester), Pablo Mukherjee (University of Oxford).

We invite scholars working in modern literatures, literary studies, media studies, cultural studies, and modern history to submit proposals on topics including, but not limited to:

·  The public uses of history in debates on Empire;

·  Memoirs on, and memories of, Empire;

·  Anti-colonial perspectives and post-imperial myths;

·  Imperialism and neo-imperialism;

·  Xenophobia, migrations, and imperial nostalgia;

·  The persistence of “race”;

·  The afterlives of imperialist “classics”;

·  Museums and the imperial past.

Presentations should be in English or French and under 20 minutes. The conference will take place in person. 

Please send abstracts of 250-300 words, together with your contact details and affiliation, to: imperialafterlives@gmail.com by 15 March 2023.

 

Notification of acceptance: 30 April 2023.

For further information, please visit the conference website: www.afterlivesofempire.com

 

Twitter: https://twitter.com/AEPIConference

 

The Organizing Committee:

Riccardo Capoferro, Valerio Cordiner, Alessandra Crotti, Paolo D'Indinosante, Tiziano De Marino, Federica Perazzini