Simon on Copyright, Moral Rights, and the Social Self @david__simon @Harvard_Law

David A. Simon, Harvard Law School, is publishing Copyright, Moral Rights, and the Social Self in volume 34 of the Yale Journal of Law and the Humanities (2023). Here is the abstract.

Moral rights—noneconomic rights that enable authors to control how their copyrighted work is divulged, attributed, modified, and withdrawn—are grounded on the Investment Theory: when an author creates a work, she invests part of her self in it. Because the work is an extension of the author’s “self,” special rights—not merely economic rights—are needed to protect it. Although intuitive, the rationale raises two central questions any moral rights theorist must address: how can an author invest her “self” in a work, and how might the law protect this investment? Moral rights scholars have not provided a satisfactory answer to the first question, making the second one difficult to address. This Article argues that an idea from social psychology might help answer the first question and shape how we respond to the second. Rather than some philosophical or abstract conception of the self, the authorial self the law protects is the social one: the self created and maintained through social interaction. On this account, moral rights are tools to present and manage aspects of this social self. They are limited “rights of impression management.” This framing enables two analytical moves. First, it precisifies what moral rights protect (the social self as externalized in the work) and the “harm” they protect against (potential inconsistencies in that self). Second, it provides a framework for discussing how moral rights ought to protect the self from harm, raising the ultimate question of whether and to what extent the Investment Theory is justified.

Download the article from SSRN at the link.

McFarlin on A Copyright Ignored: Mark Twain, Mary Ann Cord, and the Meaning of Authorship @CumberlandLaw @TheCSUSA

Timothy McFarlin, Cumberland School of Law, is publishing A Copyright Ignored: Mark Twain, Mary Ann Cord, and the Meaning of Authorship in volume 69 of the Journal of the Copyright Society of the U.S.A. Here is the abstract.

Did Mark Twain and the Atlantic infringe a copyright belonging to Mary Ann Cord in the story of how enslavers tore her family apart and how she was ultimately reunited with her youngest son? If so, might that long-ignored infringement be remedied today? In 1874, Cord told Twain the heartrending and astounding story of how her family had been ripped from her, and how she was liberated years later by her youngest, Henry, who had become a soldier for the Union. Twain proceeded to write Cord’s story down from memory, organizing the events chronologically, editing it, and describing how she told it. Twain published this manuscript in the Atlantic Monthly as “A True Story, Repeated Word for Word as I Heard It,” for money, under his name alone. Analyzing the questions above — Was this infringement? Could it still be remedied? — this project unfolds in two parts. This first part, “A Copyright Ignored,” focuses on the thorny threshold issue of copyrightability, arguing that Cord was indeed an author who had a common-law copyright in the words she spoke to Twain. The second part, “A Copyright Restored,” published in the Wisconsin Law Review, tackles the issues of infringement and remedy, arguing that Twain and the Atlantic likely did violate Cord’s rights and, further, that a claim by her descendants may still exist today. In this way, her case may set a vital precedent for righting other longstanding wrongs, particularly those against the Black community. Cord’s case could set precedent in other ways, as well. The same key which unlocks her rights can help open us to a deeper understanding of authorship in copyright law. The answer to whether Cord — who it’s said could neither read nor write and who never claimed to be an author — qualifies as one should tell us about more than just copyright’s past. Contrary to the views of many courts and scholars, I argue here that “authorship is as it does.” It’s not merely a self-conscious enterprise. It need not be limited to people like Twain, Austen, and Hemingway. It’s for everyone, and the law should recognize that.

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Guerra-Pujol on Die Adam Smith Probleme

F. E. Guerra-Pujol, Pontifical Catholica University of Puerto Rico; University of Central Florida, has published Die Adam Smith Probleme. Here is the abstract.

The German mathematician David Hilbert famously identified 23 unsolved problems in mathematics in 1900. Following David Hilbert’s example, this paper contributes to the literature on Adam Smith by identifying a number of unsolved problems involving the life and work of the great philosopher-economist Adam Smith. For reference, my list of “Adam Smith problems” will be divided into three broad categories: Smith the flesh-and-blood man, Smith the public intellectual, and Smith the testator. As a result, the remainder of my paper will be organized as follows. Part I explores some open questions regarding various aspects of Adam Smith’s life and life choices. Next, Part II identifies several additional questions regarding Smith’s main works, ideas, and beliefs. Last, Part III will address one last Adam Smith mystery: his decision to have his unpublished works destroyed after his death.

Download the article from SSRN at the link.

Chabot on The Founders' Purse @KexelChabot @mulaw

Christine Kexel Chabot, Marquette University Law School, has published The Founders' Purse as Marquette Law School Legal Studies Paper No. 23-03. Here is the abstract.

This Article addresses a new and impending war over the constitutionality of broad delegations of spending power to the executive branch. In an opening salvo, the Fifth Circuit held that Congress unconstitutionally delegated its power of the purse to the Consumer Financial Protection Bureau, and the Supreme Court has agreed to review its decision this term. Notwithstanding the fact that Congress authorized the Bureau’s budget “by law,” the Fifth Circuit held that this law violated the Appropriations Clause because it granted the Bureau substantial budgetary independence in two key respects: first, it afforded the Bureau broad discretion to self-direct its budget for an unlimited duration, and second, it granted the Bureau permanent funds that were drawn from interest-based earnings of the Federal Reserve system. The Fifth Circuit supported this conclusion with an ambitious but highly selective originalist interpretation of Article I, section 9’s Appropriations Clause. Defenders of the Fifth Circuit’s ruling have likewise justified its holding with formalist and originalist arguments that the Bureau’s budgetary independence amounts to an unconstitutional delegation of legislative spending power. The broader debate about delegation of spending power extends beyond the Bureau and calls into question laws awarding similar budgetary independence to financial regulators such as the Federal Reserve as well as the Biden Administration’s ability to forgive student loans (and spend debt owed the government) “without specific statutory authorization.” Originalist claims to a nondelegation doctrine that limits the duration, generality, and source of spending in laws passed by Congress have missed a critical body of contrary historical evidence introduced by this Article. First, records of the Constitutional Convention show that the delegates approved new and durable congressional revenue and spending powers to support the U.S. government and its credit while declining proposals for general temporal limitations on Congress’s revenue and spending powers. Second, early congresses repeatedly put these new and durable spending powers to use in laws that bypassed all three proffered limitations on duration, generality, and source of funding. To support U.S. credit, and upon the recommendation of Secretary of the Treasury, Alexander Hamilton, early congresses granted an agency known as the Sinking Fund Commission power to self-direct a permanent fund that was drawn from interest-based earnings on debt held by the United States. To establish an affordable new federal government, early congresses also funded a majority of federal officers including core law enforcement officials and even a new agency through permanent and independently directed fees that were paid by private parties. This history shows that Article I, section 9 means what it says and requires only that Congress authorize spending “by law.” Critics who have questioned the constitutionality of broad delegations of spending power have strayed from the lessons of both text and history.

Download the article from SSRN at the link.

Jewel on Time As a Flat Circle: Lessons From Past and Present Conspiracy Theories @ljewel @UTKLaw

Lucy A. Jewel, University of Tennessee College of Law, is publishing Time is a Flat Circle: Lessons from Past and Present Conspiracy Theories in volume 3 of the LSU Journal for Social Justice & Policy (2023). Here is the abstract.

This essay analyzes how conspiracy theories were viewed in the 1990s, particularly in the context of the then-existing debate over racial differences in perception, and how they are dealt with today, where prevalent conspiracy theory adherents are White and conservative (QAnon, Pizzagate, and widespread voter fraud) in the 2020 election). In the 1990s, conflict over conspiracy theories was part of a larger culture war involving critical race theory, conspiracy thinking, truth, reason, and post-modern theory. These cultural flashpoints are obviously still with us today. But now, high-profile persons holding false, unreasonable beliefs often hail from the right and are assailed by those on the left. This pattern is visible in congresswoman Marjorie Taylor Greene, who has supported tenets of the QAnon conspiracy theory1 as well as House Republicans who have expressed skepticism and hostility for Covid-19 vaccine efforts.2 This essay begins by looking at two prominent sources from the 1990s––Regina Austin’s Beyond Black Demons & White Devils: Anti-Black Conspiracy Theorizing and the Black Public Sphere3 and Jeffrey Rosen’s The Bloods and the Crits: O.J. Simpson, Critical Race Theory, the Law, and the Triumph of Color in America, which engages in part with Austin’s ideas about conspiracy theories.4 It then contextualizes these two pieces within the raging conflict over Critical Race Theory that was occurring in law schools at the time. Next, the essay discusses trends that have emerged since the 1990s that shed light on the topic. How have things changed and how have they just remained the same? Critical Race Theory remains a tremendous flash point, but the dynamics are different now. There is a greater consensus (as first articulated by critical race theorists) that people do arrive at perceptions differently, based on differing social realities, especially race. On the other hand, there is still strong opposition to the view that race and racism continue to plague U.S. society, which has resulted in recent legislation that restricts the teaching of Critical Race Theory in public education settings. The paper’s next sections discuss post-modernism, critical race theory, and the emergence of conservative post-modernism. How has post-modern and neoliberal culture, refracted into social media forms, revamped how we engaged with “the truth.” After our forty-fifth President won and held office, we live in a world where a post-modern aphorism “truth is not truth” emanates from public figures on the right.5 Because this study raises two important foundational items––conspiracy theories and post-modern modes of thought––this essay delineates an intellectual history that includes post-modernism, neoliberalism, the rise of “conservative post-modernism,” and relevant social-science literature on conspiracy theories. In conclusion, the essay identifies common threads and lessons from the intellectual history. Ultimately, there is some overlap in these folk thought forms, whether they come from the right or the left. If we look at the underlying subtext within conspiracy theories, there are bridges that can be built, particularly in rethinking how we level scapegoating and shame as a form of social control, how people might legitimately feel marginalized, and how unchecked elitism sows seeds of resentment and mistrust.

Download the essay from SSRN at the link.

Roberts on A Poetics of Trademark Law @lexlanham @NUSL @BerkeleyTechLJ

Alexandra J. Roberts, Northeastern University School of Law, is publishing A Poetics of Trademark Law in volume 38 of the Berkeley Technology Law Journal (2023). Here is the abstract.

Poetry and trademarks have a lot in common. Both use language to persuade. Both aspire to say much with little. Both deal in ambiguity, though perhaps only poetry is content to reside in it permanently. While poetry is associated with education and erudition, trademarks are considered a lingua franca, readily understood by all. But reading a trademark remains, in the words of Laura Heymann, “at heart, an interpretive exercise.” Poetic devices like rhyme and alliteration play a role in what trademarks mean and how readers of trademarks can locate and articulate that meaning, but their use and interpretation have received little attention in doctrine or scholarship. While applicants and litigants sometimes allege that their marks incorporate poetic devices in support of a claim of distinctiveness, unitariness, or similarity (or the lack thereof), and factfinders sometimes grant credence to those arguments, both groups tend to use literary terms imprecisely. And that imprecision matters. This Article explores the poetics of trademarks. It calls upon several overlapping senses of the word “poetics”: a study of rhetorical devices; a strategy for interpretation; and a structuring principle undergirding trademark law itself. It defines a number of commonly used poetic devices, offers examples from both poetry and trademarks, and discusses federal court and USPTO decisions that consider their effects on protectability or infringement. Poetic devices have the potential to guide factfinders to deeper insight about word marks. The devices discussed offer ways to articulate what and how a mark means—its denotations, connotations, rhythm, music—specifically and precisely. By treating a trademark as a tiny poem, we make space to honor its complexity.

Download the article from SSRN at the link.

Lee on The Judicial Power-Admiralty Clause @FordhamLawNYC

Thomas H. Lee, Fordham University School of Law, is publishing The Judicial Power-Admiralty Clause in The Heritage Guide to the Constitution (3d edition) (forthcoming). Here is the abstract.

This Essay explains the text and original meaning of “all Cases of admiralty and maritime jurisdiction” in Article III of the U.S. Constitution, its background history, its implementation by the First Congress, key judicial precedents interpreting it, and the open question of what Erie doctrine means for the centuries-old historical practice of federal courts applying the maritime law of nations in “all Cases of admiralty and maritime jurisdiction.” Article III does not define what constitute “all Cases of admiralty and maritime jurisdiction.” Understanding this Article III judicial power as a matter of text and original meaning thus requires examination of relevant English, colonial, and Articles of Confederation history; the Constitutional Convention and state ratification conventions; and subsequent judicial precedents. A backwater today, the admiralty and maritime jurisdiction was among the most vital of the nine categories of Article III judicial power in the early United States because of: (1) the need for uniform rules and adjudication of maritime cases for a new coastal nation dependent on maritime trade among themselves and with Europe and its colonies; (2) the negative experience of divergent state admiralty courts during the War of Independence, which created friction among the states and with foreign states and led to the establishment of the first national court of appeals; and (3) the criticality of port customs duties for early federal government revenues.

Download the essay from SSRN at the link.

Roberts on A Man For His Era and For Ours: Cordell Hull, Father of the Federal Income Tax @traceymroberts @CumberlandLaw

Tracey M. Roberts, Samford University Cumberland School of Law, has published A Man for His Era and for Ours: Cordell Hull, Father of the Federal Income Tax at 53 Cumberland Law Review 41 (2022). Here is the abstract.

An 1891 graduate of Cumberland School of Law, Cordell Hull served our country in countless ways. He served as captain of the Fourth Regiment of the Tennessee Volunteer Infantry in the Spanish- American War, as judge for the fifth judicial circuit of Tennessee, as a member of the Tennessee State House of Representatives, the United States House of Representatives, and the United States Senate, and as United States Secretary of State. President Franklin D. Roosevelt referred to him as the “Father of the United Nations.” Hull received the Nobel Peace Prize in 1945 in honor of his work to establish that body. Hull is less well known for his work to establish another important and enduring institution—the federal income tax. In his 1948 memoir, Hull wrote that he doubted that he would be able to render public service equal to his work to establish the income tax system even if he had two lifetimes. This essay explains why Hull regarded the federal income tax as among his chief contributions. First, it outlines Hull’s personal history, his experiences with his mentor, United States Representative Benton McMillin, and Hull’s efforts to pass the Revenue Act of 1913. Second, it discusses the historical, economic, and political context that motivated Hull to introduce the tax reform that sustained the United States through two world wars and made possible widespread economic prosperity in the twentieth century. Finally, it discusses the original impetus for reform, compares the economic conditions from over 100 years ago to those prevailing today, and outlines what it would take to fulfill Hull’s vision and intentions for the federal tax system and the country in the present.

Download the article from SSRN at the link.

Foster on Historical Conceptions of the Express Trust, c. 1600-1900 @David__Foster @UCLLaws @OUPLaw

David Foster, University College London Faculty of Laws, is publishing Historical Conceptions of the Express Trust, c 1600-1900 in Philosophical Foundations of the Law of Trusts (Simone Degeling, Jessica Hudson, and Irit Samet, eds., Oxford University Press, Forthcoming). Here is the abstract.

This chapter discusses the historical and analytical conceptions of the express trust in the period c 1600 – 1900. Particular emphasis is placed upon the historical conception of the trust as a ‘confidence annexed in privity’ and the slow reification of the beneficiary’s right under a trust in the case law and treatise literature of the period. This aspect of the trust’s history is explored through the development of rules governing the exigibility and enforceability of the beneficiary’s right and provides historical context to the more analytical treatments of the trust in the mid-to-late nineteenth century. The chapter concludes with a consideration of the significance of the school of analytical jurisprudence in shaping modern conceptions of the trust – most notably by applying the language of rights in rem and rights in personam to equitable rights.

Download the chapter from SSRN at the link.

Sanger on The Rise and Fall of a Reproductive Right: Dobbs v. Jackson Women's Health Organization @carolsangernyc @ColumbiaLaw

Carol Sanger, Columbia Law School, has published The Rise and Fall of a Reproductive Right: Dobbs v. Jackson Women’s Health Organization at 56 Fam. L. Q. 117 (2023). Here is the abstract.

Although the phrase “Post-Roe Era” is still used by those who want to mark the tremendous loss wrought last June by Dobbs v. Jackson Women’s Health Organization, it is only a matter of time before the present state of reproductive constitutionalism solidifies into the more authoritarian “Dobbs Era.” In these early days of transition, states are still figuring out what they want the legal status of abortion to be, ever since Dobbs overruled both Roe v. Wade and Planned Parenthood of Southeast Pennsylvania v. Casey, returning, in Justice Alito’s words, “the issue of abortion to the people’s elected representatives.” So, should what was formerly regarded as a medical procedure remain so and be legal? Should it be legal and funded? Or should it migrate from a state’s health regulations to the criminal code and be illegal? Or illegal with exceptions? Or illegal with extraterritorial reach? And who should bear the burden of the illegality? Pregnant women, their physicians, anyone who aids or assists them? Resolving these questions is the pressing task of citizens and lawmakers, as answers are now owed to women of child-bearing age—all sixty-four-and-a-half million of them—so that they can know just where they stand under state law should they confront an unwanted pregnancy. As well as provoking questions of “What next?” the Dobbs case also raises the backwards-looking question of “How did this happen?” How could one live (blithely, it now seems) into one’s adulthood secure in the highest level of legal protection around reproduction, only to have it felled with a few determined strokes from Justice Alito’s pen in the Dobbs case? In this regard, it is worth rewinding the reproductive script to look back over the course of the 20th century, to see how American law developed the concept of constitutionally protected reproductive rights. The legislative trajectory began in the 1920s and progressed in roughly twenty-year increments, ending (certainly for the present) almost 100 years later in 2022 with Dobbs, which shredded the right to abortion by denouncing the underlying doctrine of privacy. In this essay I trace the ways in which a series of constitutional cases reflect both social attitudes and legal constraints on reproductive behavior, whether pro-natal or anti-natal, during the twentieth century. The idea here it to follow their trajectory, beginning with the brutal decision in Buck v. Bell (upholding mandatory sterilization of “imbeciles” in 1927), to Skinner v. Oklahoma (reversing compulsory vasectomy of a prisoner in 1942), and then to Griswold v. Connecticut (striking down a ban on contraceptive access for married couples). These cases contributed to the development of reproductive rights, which by the end of the twentieth century culminated in the right to abortion. Roe v Wade established the abortion right as against state criminal prohibitions (1973), followed by Planned Parenthood v. Casey (1992), which upheld abortion’s status as a fundamental right, while seriously expanding the grounds for restricting it. We see Casey at work in two opposing cases, Gonzales v. Carhart (2007), where the Supreme Court upheld a federal ban on a particular abortion procedure and Whole Woman’s Health v Hellerstedt (2016) which struck down burdensome Texas restrictions on abortion. These cases take us to the present, where the rise of reproductive rights has been overtaken by Dobbs, marking an abrupt and decided plunge southward. This plunge leads to a second insight of this Essay. In contrast to nearly all the earlier cases, the analysis in Dobbs does not hold up. The decision lacks the integrity one would expect from a pre-leaked blockbuster that overturned both the law and the vested expectations of citizens for the last fifty years. What truly stings here is how the Court, with its overconfident tone and daring selection of facts, disregards how women and girls have relied upon the holdings in Roe and Casey. There are many ways to critique Dobbs—its theocratic underpinnings, its peculiar historical choices, its doctrinal disregard of precedent, and so on. I focus here on these: first, its disquieting location as the endpoint in the trajectory of its reproductive law cases from the 20th century forward; second, Dobbs’ disregard of women as reproductive agents in the constitutional scheme; and third, its rejection of the developed doctrines of privacy and liberty regarding reproductive practices, an aspect of life that at one time or another envelops most of us. Note: Copyright 2023 American Bar Association. Reproduced by permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Download the essay from SSRN at the link.

James on The Mess of Dillegrout @GB2d @pillsburylaw

Robert A. James, Pillsbury Winthrop Shaw Pittman LLP, has published The Mess of Dillegrout at 26 Green Bag 2d 41 (2022). Here is the abstract.

Anglo-American land law is now founded on free socage tenure, where rights superior to any other landlord are held in exchange for purchase money or other property. A vestigial exception in the UK is the grand serjeanty tenure, which was largely abolished but is still relevant to services rendered to the King or Queen on certain holidays and ceremonies. This article reviews the grand serjeanty services in general and then focuses in detail on the service of providing a bowl of chicken stew at the coronation. The history of the origin, ownership and performance of this rite, and the recipe for the dish itself, are cited as "a window into a world that is hard to see on any other day of the calendar." A supplement to the article describes another serjeanty tenure, that of the King's Champion, who did play a role in the May 6, 2023 coronation of King Charles III--the only service at that ceremony relating to real property ownership. Note: This work is (or will be) published by the Green Bag (www.greenbag.org), which hopes you will find it useful.

Warden on The Louisiana Constitution of 1974: A Reflection @DerekWardenSJD @SU_LawReview48

Derek Warden, Louisiana Supreme Court, is publishing The Louisiana Constitution of 1974: A Reflection in volume 51 of the Southern University Law Review. Here is the abstract.

The year 2023 marks fifty years since the last full constitutional convention in Louisiana. Next year, 2024, will mark the fiftieth anniversary of our state's constitution. This essay reflects on that document and our shared constitutional history. It calls upon Louisiana law schools and journals to celebrate, in its fiftieth year, the document, the framers, and all those whose faith holds the document in existence.

Download the essay from SSRN at the link.

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

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.

Littlewood on Nothing New Under the Sun: Tax Avoidance in Otago in 1856

Michael Littlewood, University of Auckland Faculty of Law, has published Nothing New under the Sun: Tax Avoidance in Otago in 1856. Here is the abstract.

This paper examines a rule against tax avoidance enacted by the legislature of the New Zealand province of Otago in 1856. The tax was a toll collectable by licensed operators of ferries over rivers; and the rule required persons crossing the river to pay the toll, even if they did not use the ferry.

Download the paper from SSRN at the link.

Littlewood on Public Nuisance in Aotearoa New Zealand in 1849

Michael Littlewood, University of Auckland Faculty of Law, has published Public Nuisance in Aotearoa New Zealand in 1849. Here is the abstract.

This paper examines the Constabulary Force Ordinance enacted by the legislature of the New Zealand Province of New Munster in 1849. This is worth doing because the Ordinance is revealing of life in colonial New Zealand at the time.

Download the paper from SSRN at the link.

Barzun and Goldberg on The Nature of the Judicial Process at 100 (Introduction) @UVALaw @Harvard_Law

Charles L. Barzun, University of Virginia School of Law, and John C. P. Goldberg, Harvard Law School, have published Introduction: The Nature of the Judicial Process at 100 as Virginia Public Law and Legal Theory Research Paper No. 2023-46. Here is the abstract.

This short essay introduces a symposium issue of the Yale Journal of Law and the Humanities honoring the centenary of the publication of Benjamin Cardozo’s The Nature of the Judicial Process. The essay explains our motivating rationale for the symposium and then briefly summarizes the essays and comments that comprise it. The papers, which range from the historical to the philosophical to the literary, include contributions from Ken Abraham & G. Edward White, Amalia Amaya, Aditi Bagchi, Shyamkrishna Balganesh, Charles Barzun, John Goldberg, Leslie Kendrick, Irit Samet, Henry Smith, Bernadette Meyler, Konstanze von Schütz, and Benjamin Zipursky.

Download the introduction from SSRN at the link.

Witte on The Protestant Reformation of Constitutionalism @EmoryLaw @OxUniPress

John Witte, Emory University School of Law, is publishing The Protestant Reformation of Constitutionalism at Christianity and Constitutionalism 126-148 (Nicholas Aroney and Ian Leigh, eds., Oxford University Press (forthcoming). Here is the abstract.

The sixteenth-century Protestant Reformation brought far-reaching changes to Western constitutionalism. The Lutheran reformers vested each territorial state with much of the jurisdiction held by the medieval church, arguing that the magistrate was the custodian of both the religious and civil duties set out in the Ten Commandments. They also merged church courts and state courts, placing both legal and equitable power in the hands of conscientious Christian judges. The Anabaptists ascetically withdrew from civil and political life into small, self-sufficient, and often intensely democratic communities governed by simple biblical principles and dialogical forms of internal governance. Despite ample persecution, Anabaptists were fervent champions of religious liberty and separation of church and state. The Calvinist reformers separated the offices of church and state but called both authorities to help create an overtly Christian local polity governed by written constitutions based on the Bible and natural law but with detailed positive laws tailored to local needs. Calvinist also developed robust biblical-based theories of natural and positive rights, whose persistent and pervasive breach triggered the right of resistance and revolution.

Download the essay 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.

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.