Levy on Three Arguments Against Metaphysical Libertarianism @KenLevy2020 @LSULawCenter @LSULawProfs

Ken Levy, Louisiana State University Law Center, has published On Three Arguments Against Metaphysical Libertarianism at 76 Review of Metaphysics 725 (June 2023). Here is the abstract.

I argue that the three strongest arguments against metaphysical libertarianism—the randomness objection, the constitutive luck objection, and the physicalist objection—are actually unsuccessful and therefore that metaphysical libertarianism is more plausible than the common philosophical wisdom allows. My more positive thesis, what I will refer to as “Agent Exceptionalism,” is that, when making decisions and performing actions, human beings can indeed satisfy the four conditions of metaphysical libertarianism: the control condition, the rationality condition, the ultimacy condition, and the physicalism condition.

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Baldwin on Rawls and Animal Moral Personality @GuyJBaldwin

Guy Baldwin, Cambridge Faculty of Law, has published Rawls and Animal Moral Personality at 13 Animals 1238 (2023). Here is the abstract.

The relationship between animal rights and contractarian theories of justice such as that of Rawls has long been vexed. In this article, I contribute to the debate over the possibility of inclusion of animals in Rawls’s theory of justice by critiquing the rationale he gives for their omission: that they do not possess moral personality. Contrary to Rawls’s assumptions, it appears that some animals may possess the moral powers that comprise moral personality, albeit to a lesser extent than most humans. Some animals can act in pursuit of preferences and desires (and communicate them non- verbally), which might be taken as implicitly selecting a conception of the good; further, scientific research demonstrating inequity aversion and social play behaviors suggests that some animals can have a sense of justice relating to their own social groups. I conclude that Rawls’s theory needs to acknowledge any animals that can be considered to meet the threshold of moral personality, while the concept of moral personality as a range property may also require reconsideration.

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Mirow on The Mexican Civil Code of 1928 and the Social Function of Property in Mexico and Latin America @FIULaw

M. C. Mirow, Florida International University College of Law, has published The Mexican Civil Code of 1928 and the Social Function of Property in Mexico and Latin America at 37 Emory Int'l L. Rev. 365 (2023). Here is the abstract.

The social function of property and the version of this idea expounded by French jurist Léon Duguit did not find a significant home in the Mexican Civil Code of 1928, and these ideas of property were only subsequently adopted as a guiding principles of Mexican property law. After the promulgation of the Code, private law jurists read the social function of property and Duguit’s work ahistorically into the property provisions of the Mexican Constitution of 1917 and the Civil Code of 1928. This intellectual work by jurists and commentators during and after the 1930s pulled European trends of the social function of property into the mainstream of Mexican legal thought. Thus, Mexican thinking on property joined this international trend and subsequently gained recognition as part of broader international developments in property theory. This concordance of Mexican property law with international trends was then mistakenly read back to place Mexico as the originator of the social function of property in Latin America. The Mexican incorporation of the social function of property is contrasted with related experiences of Chile in 1925, Colombia in 1936, Cuba in 1940, and Argentina in 1949.

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Quigley on Diplomatic and Consular Law in the Age of Empire @OSU_Law @CambridgeUP

John Bernard Quigley, Ohio State University College of Law, is publishing Diplomatic and Consular Law in the Age of Empire in The Cambridge History of International Law (Randall Lesaffer, general editor, Stephen C. Neff, volume editor, Cambridge University Press). Here is the abstract.

Diplomatic and consular law underwent significant alterations in Europe in the nineteenth century as result of changes in the political and international order. With the expansion of trade, European states came to exchange envoys with states in other continents. Envoys increasingly promoted the commercial interests of their nationals. With the move from monarchical to constitutional rule, envoys came to be seen more as representing a country, rather than a monarch. Their immunity from local jurisdiction, while it continued to be respected, was challenged as they were seen less as surrogates for a monarch. At the same time, the service rendered by envoys became more professionalized. Envoys came to be relied upon to keep tabs on domestic developments in the receiving state, in particular on their military preparations.

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Witte and Domingo, Preface, in Oxford Handbook on Christianity and Law @EmoryLaw @OUPLaw @RafaelDomingoO1

John Witte, Emory University School of Law, and Rafael Domingo, University of Navarra School of Law, are publishing Preface to Oxford Handbook on Christianity and Law in Oxford Handbook on Christianity and Law (John Witte and Rafael Domingo, eds., Oxford: Oxford University Press) (forthcoming). Here is the abstract.

This is the preface to a major new volume that tells the story of the interactions of Christianity and law -- historically and today, in the traditional heartlands of Christianity and now around the globe. Sixty new chapters by leading scholars show how Christianity helped to shape the core legal topics of public, private, penal, and procedural law and fundamental legal principles like justice, liberty, equality, and dignity. They also take up cutting edge legal issues of religious freedom, canon law, racial justice, environmental care, migration, and euthanasia. This is the first comprehensive global collection on Christianity and law and an indispensable single volume resource for scholars and students of law, religion, history, theology, politics, ethics.

Download the preface from SSRN at the link.

Davies on How Watson Learned the Trick: An Illustrated, Annotated, Partial Manuscript Edition @GB2d @horacefuller

Ross E. Davies, George Mason University Law School; The Green Bag, has published How Watson Learned the Trick: An Illustrated, Annotated, Partial Manuscript Edition at 2023 Baker Street Almanac 315. Here is the abstract.

At about 500 words, How Watson Learned the Trick (HOWW for short) is puny when compared to Arthur Conan Doyle’s typical Sherlock Holmes and John Watson adventures, which tend to run 7,000 to 10,000 words. But the story of how HOWW came to be written, and how it has been treated since, is probably worthy of longer treatment than many of those typical tales. We will, however, try to keep it short (with some superb new original illustrations of the story itself by Madeline Quiñones). Note: This work is (or will be) published by the Green Bag (www.greenbag.org), which hopes you will find it useful.

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Martinico on Whether Batman Is Above the Law: Law and Justice In the Batman Fictional Universe @martinicogi @SantAnnaPisa

Giuseppe Martinico, Scuola Superiore Sant'Anna Pisa, has published Is Batman Above the Law? Law and Justice in the Batman Fictional Universe as STALS RESEARCH PAPER 4/2023. Here is the abstract.

In this essay I shall attempt to explore the relationship of law and justice in Batman, seeing how he understands law and how he relates to law. To do so, an itinerary will be proposed, looking at comics and animated series (excluding, therefore, the film versions, except for a few "raids" in Nolan's trilogy).

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Jewel on Dark Connections @ljewel @CreightonLawRev @UTKLaw

Lucy A. Jewel, University of Tennessee College of Law, is publishing Dark Connections in volume 56 of the Creighton Law Review (2023). Here is the abstract.

This paper explores the troubling cultural connections between plantation management relations and the patriarchy, pugilism, and privilege that run through contemporary U.S. business culture. First, the Comment will briefly describe some theoretical concepts that explain why an interdisciplinary study of legal history and culture provides value for scholars interested in stopping the same old hierarchical patterns from recurring. Second, the Comment will summarize the plantation owner's and overseer's dichotomous social identities, as McMurtry-Chubb expertly describes them. Third, this paper undertakes a deep reading of United States v. Hazelwood, a recent United States Court of Appeals for the Sixth Circuit case that grapples with heinous racist behavior in a business milieu. The Hazelwood case illustrates the dark connections between the plantation and modern business and plots the course lines for an accurate reckoning.

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Witte on "We Must Obey God Rather Than Men": Lutheran Resistance Against Pope and Emperor In the Reformation Era @EmoryLaw

John Witte, Emory University School of Law, has published “We Must Obey God Rather Than Men”: Lutheran Resistance Against Pope and Emperor in the Reformation Era in Uncivil Disobedience: Theological Perspectives 75-92 (David Gides, ed., Minneapolis: Lexington Books, 2023). Here is the abstract.

The Bible commands people of faith both to “obey God rather than men” and to “honor the authorities” who serve as vice-regents of God. The perennial question facing jurists and theologians over the centuries is how to balance these two biblical commands when human authorities defy God’s law, violated God’s people’s rights, and/or become tyrants. This chapter first rehearses Martin Luther’s original teachings after 1517 on resisting the spiritual tyranny of the papacy and the church’s canon law. It then works through the arguments of the 1550 Magdeburg Confession on resisting the spiritual tyranny of the Holy Roman Emperor.

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Mitchell on Vast Imperium: The Origins of Modern Chinese Conceptions of Sovereignty and International Law in Guangxu Era Geopolitics

Ryan Mitchell, The Chinese University of Hong Kong (CUHK), Faculty of Law, is publishing Vast Imperium: The Origins of Modern Chinese Conceptions of Sovereignty and International Law in Guangxu Era Geopolitics in volume 14 of the Tsinghua China Law Review (2023). Here is the abstract.

Accounts of the transmission of Western notions of sovereignty and international law to China often focus heavily on Anglo-American initiatives in the period of the Opium Wars, skimming over the complex transnational interactions of the late 19th century. However, key events of the 1870s-1890s played a crucial role in rapidly changing discourses of international legal order and statehood in China. Only then were important terms for concepts such as “autonomy,” “territory,” and indeed “sovereignty” (zhuquan, 主权) itself, first used in official contexts with their current implications. Such uses were prompted by encounters between Qing officials and various foreign empires, often revolving around competition to define and control the vast but loosely governed Qing space. This article suggests a new emphasis upon these transnational encounters, especially certain diplomatic interactions between the Qing and Meiji Japan, as pivotal and paradigm-changing moments in China’s modern legal history. Analyzing sources from the period across six languages, China’s modern zhuquan discourse is revealed to have diverse and highly globalized origins.

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Essien on Interpretation of the Copyright's Public Domain in the European Union: A Criminal Discourse Analysis

Oswald Essien has published Interpretation of the Copyright’s Public Domain in the European Union; a Critical Discourse Analysis. Here is the abstract.

In the digital economy, the public domain is a sublime legal concept that fosters innovation and participatory culture. Despite its benefits, its sublimeness, particularly in this age of digitization, may pose a problem for users. This is due to the term's imprecise conception, static definition, and subdued representation. As a result, users have difficulty engaging with and understanding the status of public domain works. This article presents a contemporary public domain definition and conceptual model that can help users engage with the public domain and enrich academicians' vocabulary. To achieve precision, various methods for conceptualising the public domain have been used. These include boundary exploration, identification, grouping, and mapping works in the public domain. This method, while useful for identifying works that have never entered the public domain, excluded contents, and so on, does not interpret the public domain. As a result, this article employs critical discourse analysis to uncover the nature of the public domain (that is, use) while proposing a contemporary definition for the public domain. A contemporary definition of the copyright's public domain raises awareness of the concept's evolution, allowing for better protection and comprehension in the face of increased digitization.

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Bendesky on "The Key-Stone to the Arch": Unlocking Section 13's Original Meaning @Harvard_Law @PennJCL

Kevin Bendesky, Harvard Law School, is publishing ‘The Key-Stone to the Arch’: Unlocking Section 13’s Original Meaning in volume 26 of the University of Pennsylvania Journal of Constitutional Law (2023). Here is the abstract.

The Pennsylvania Supreme Court holds that Section 13 of the State’s Constitution, which prohibits all “cruel punishments,” is coextensive with the Eighth Amendment, which prohibits only “cruel and unusual punishments.” Rather than analyze the state provision independently, the court defers to the U.S. Supreme Court’s interpretation of the Eighth Amendment. This is because Pennsylvania history, says the court, does not provide evidence that the Commonwealth’s prohibition differs from the federal one. Without that historical basis, the court believes it is bound by federal precedent. This is mistaken. History reveals that Pennsylvanians had a distinct original understanding of “cruelty.” The U.S. Supreme Court has said that the original meaning of the federal provision parroted English criminal prohibitions, permitted retributive justifications, and proscribed only pain superadded beyond death through methods left in the past. This understanding is irreconcilable with the original meaning of Section 13. The Commonwealth’s provision, by contrast, parroted Enlightenment criminal philosophy, permitted only deterrence and rehabilitative justifications, and prohibited any severity contemporary science deemed unnecessary for those ends. The historical record should provide, not prevent, a distinctly Pennsylvanian definition of cruelty. This article provides that historical account. It reviews the influence of Montesquieu and Beccaria’s writings on the speeches, pamphlets, and debates of founding Pennsylvanians. It also traverses the text, legislative history, and early Pennsylvania Supreme Court interpretation of the first penal laws in the Independent State. This penal code, which circumscribed capital punishment and augured the age of the penitentiary, distilled the distinctly Pennsylvania conception of “cruelty” into law. This was the philosophy Pennsylvanians encapsulated in their prohibition on cruel punishments. Section 13 jurisprudence should therefore build—independently—from the original meaning Pennsylvania’s history provides.

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Tyler on Judicial Review in Times of Emergency: From the Founding Through the COVID-19 Pandemic @profamandatyler @BerkeleyLaw @VirginiaLawRev

Amanda L. Tyler, University of California, Berkeley, School of Law, is publishing Judicial Review in Times of Emergency: from the Founding through the COVID-19 Pandemic in volume 109 of the Virginia Law Review. Here is the abstract.

Whether deferring to President Lincoln’s blockade at the start of the Civil War, a state’s suspension of creditors’ remedies during the Great Depression, or President’s Roosevelt’s evacuation and mass incarceration of Japanese Americans in the West during World War II, the Supreme Court has regularly permitted the political branches wide discretion to manage national emergencies, even in ways that during peacetime would be viewed as flouting the Constitution. Although there have been a handful of exceptions to this practice, the result has been the same: For all practical purposes, the United States Constitution has meant something different in times of emergency. In several recent cases, however, an emerging Supreme Court majority has applied increasingly rigorous scrutiny to government regulations predicated upon public health, most notably where they intersect with the exercise of religion, but also in the area of property rights and separation of powers. The Court’s propensity to be so active of late should revive debates over the role of the Constitution in times of emergency and the attendant role of the judiciary during the same. This article explores the role of the Constitution and judicial review during times of emergency, spanning American history up to and including the Court’s recent orders made in the context of the pandemic, while surveying debates on either side of the competing visions that emerge. Then, after criticizing the Court’s inconsistent approach to its role during the pandemic and acknowledging that many may find fault in its merits assessments of certain cases, the article contends that the application in some recent cases of normal standards of judicial scrutiny during times of emergency should be viewed as a welcome development. The Court’s recent decisions suggest we have traveled some distance in rejecting the prosecution’s argument at the trial of the Lincoln conspirators that the Constitution is “only the law of peace, not of war.” But, as will also be shown, we still have a considerable way to go.

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Candido, Paes, and Ngãla on História e Direito em Angola: Os processos Judiciais do Tribunal da Comarca de Benguela (sécs. XIX-XX) / History and Law in Angola: The Court Cases of the Tribunal da Comarca de Benguela (19th and 20th Centuries) @CandidoMarianaP @EmoryHistory @mpilhlt

Mariana Candido, Emory University, Mariana Dias Paes, Max Planck Institute for Legal History and Legal Theory, and Juelma de Matos Ngãla, Max Planck Institute for Legal History and Legal Theory, have published História e Direito em Angola: Os processos Judiciais do Tribunal da Comarca de Benguela (sécs. XIX-XX) / History and Law in Angola: The Court Cases of the Tribunal da Comarca de Benguela (19th and 20th Centuries) as Max Planck Institute for Legal History and Legal Theory Research Paper Series No. 2023-08: subsidia et instrumenta. Here are the abstracts.

Portuguese Abstract: O presente trabalho traz a público os resultados do projeto colaborativo “História e Direito em Angola: os processos judiciais do Tribunal da Comarca de Benguela (sécs. XIX-XX)” na forma de um inventário do fundo de processos judiciais do Tribunal da Comarca de Benguela. Apresentamos uma explicação detalhada sobre o andamento do projeto e os critérios que utilizamos para organizar e descrever a documentação. Como auxílio ao pesquisador, também incluímos um glossário com termos recorrentes na documentação descrita. O inventário descreve 2.034 processos judiciais de parte do acervo do Tribunal da Comarca de Benguela, que constituem patrimônio documental primordial para a história angolana. English Abstract: The present work brings to light the results of the collaborative project "History and Law in Angola: The Court Cases of the Tribunal da Comarca de Benguela (19th and 20th Centuries)" in the form of an inventory of the collection of court cases of the Benguela District Court. We present a detailed explanation of the progress of the project and the criteria we used to organize and describe the collection. We have also included a glossary with recurring terms in the court cases. The inventory describes 2,034 court cases from part of the Benguela District Court’s collection, which are an important documental heritage of Angolan history.

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Surana on Breaking the Cycle: Exposing Victim Blaming in Media Through the "Pink Lens" @JindalGlobalUNI

Palak Surana, O. P. Jindal Global University, has published Breaking the Cycle: Exposing Victim Blaming in Media Through the "Pink Lens". Here is the abstract.

The article, “Breaking the Cycle: Exposing Victim Blaming in Media through the 'Pink lens" examines the issue of victim blaming (V.B.) in the media, with a specific focus on cross-religious V.B. The perpetuation of V.B. in the media contributes to a lack of empathy and understanding towards victims, perpetuates harmful stereotypes, and hinders efforts to create a just and equitable society. The article analyzes the movie "Pink" as a powerful example of addressing V.B. in a nuanced and sensitive manner, highlighting the patriarchal mindset and societal attitudes that contribute to V.B. The movie demonstrates the impact of V.B. on women from different religious backgrounds and emphasizes the need to challenge harmful stereotypes. Additionally, the article explores the psychological factors that contribute to victim blaming and discusses gendered V.B. in Bollywood movies. It also acknowledges that V.B. can affect males and highlights examples of male victimization in Indian cinema. Furthermore, the article discusses the news value of V.B., the impact of the media in shaping public perception, and the powers of media tools to combat V.B. Finally, it explores the "Pink Impact," emphasizing the film's positive reception and its contribution to raising awareness and initiating discussions about V.B. in Indian society. Overall, the article emphasizes the importance of recognizing and challenging V.B. in all its forms to create a more just and equitable society for all individuals.

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Mohr on Opposition to the 1922 Irish Free State Constitution @UCDLawSchool

Thomas Mohr, Sutherland School of Law, University College Dublin, has published Opposition to the 1922 Irish Free State Constitution as UCD Working Papers in Law, Criminology & Socio-Legal Studies Research Paper No. 8-2023. Here is the abstract.

This paper outlines why some Irish people felt that they could not support the 1922 Constitution of the Irish Free State and how they expressed their opposition to it. The most obvious group that opposed the 1922 Constitution were those that had also opposed the Anglo Irish Treaty signed in 1921. This paper will examine the legal arguments used by this group to challenge the validity of the 1922 Constitution. It will also examine unionist objections and the position of those who felt that they could support the Treaty but had serious reservations concerning the Constitution. The overall objective of this analysis is to provide a better understanding of the circumstances in which the 1922 Constitution came into force.

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ICYMI: Roscini on Intervention in XIXth Century International Law and the Distinction between Rebellions, Insurrections and Civil Wars @marcoroscini @UW_WLS

ICYMI: Marco Roscini, University of Westminster School of Law; Geneva Academy of International Humanitarian Law and Human Rights, has published Intervention in XIXth Century International Law and the Distinction between Rebellions, Insurrections and Civil Wars at 50 Israel Yearbook on Human Rights 269 (2020). Here is the abstract.

This article looks at how customary international law rules on intervention developed in the XIXth century. In particular, different forms of internal unrest are examined in order to establish whether they entailed different regimes of external intervention. The article starts with rebellions and insurrections and then moves to discuss civil wars by distinguishing three situations: that where the civil war has led to the de facto secession of part of a State, that where the insurgents have been recognized as belligerents by the government of the State in civil strife and/or by third States, and that of a civil war where no recognition of belligerency has occurred. Finally, the article briefly looks at the alleged existence of a customary rule providing for the recognition of insurgency and at its effects on third State intervention.

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