Davies on Spiro T. Agnew In His Own Words: 1973 and 1983 @horacefuller @GB2d

Ross E. Davies, George Mason Law School; The Green Bag, has published Spiro T. Agnew in His Own Words: 1973 and 1983 at 26 Green Bag 2d 327 (2023). Here is the abstract.

In 1983, Spiro T. Agnew inscribed a copy of his autobiography to a young recipient, with “the fervent hope that he will acquire a profound suspicion of the news media. History is only the accumulated perceptions of those in control of the machinery for its dissemination.” Agnew knew what he was talking about, having participated deeply — and profitably — in the dissemination of his own history. Oddly, a complete and accurate transcript of the nolo contendere proceedings that were an important part of that history is difficult to find. And so here it is, presented in the hope that its dissemination in the lowly but readily accessible Green Bag will contribute to a more complete and accurate accumulation of perceptions about Spiro T. Agnew, his words, and his deeds. Note: This work is (or will be) published by the Green Bag (www.greenbag.org), which hopes you will find it useful.

Download the article from SSRN at the link.

Litt on From Rhyming Bars to Behind Bars: The Problematic Use of Rap Lyrics in Criminal Proceedings @LucyJLitt @UMKCLawReview

Lucy J. Litt, Harvard Law School, has published From Rhyming Bars to Behind Bars: The Problematic Use of Rap Lyrics in Criminal Proceedings at 92 UMKC L. Rev. 121 (2023). Here is the abstract.

The use of rap lyrics as evidence in criminal proceedings distorts the art form and heightens the risk of wrongful prosecutions. Rap music is complex and sophisticated; it is an art form with its own history, norms, and conventions. Like other art forms (e.g., spy novels by John le Carré; ballets by George Balanchine; the Big Apple Circus; Shakespeare’s tragedies; Marvin Hamlisch and Edward Kleban’s “A Chorus Line;” or songs by Johnny Cash), 1 it serves as a creative outlet and can be a form of critical public commentary. Rap is an art form that often distorts or exaggerates reality. Unlike other fictional art forms (e.g., murder mysteries, TV crime show scripts), however, prosecutors increasingly introduce rap lyrics as evidence in criminal proceedings, where the real-life stakes can be very high. In 1987, the Washington Court of Appeals considered, and denied, the admissibility of violent writings as evidence; however, courts did not consider the specific question of rap lyrics until the United States Court of Appeals for the Seventh Circuit heard United States v. Foster in 1991 and concluded that the rap lyrics in question were admissible as evidence against the defendant rap artist. In the years since 1991, state and federal prosecutors have continued their practice of introducing rap lyrics and rap music videos in criminal proceedings against rappers(and even sometimes their friends and fans). Scholars and commentators who focus on these practices refer to the phenomenon as “rap on trial.” The courts vary in their decisions regarding rap on trial, with most courts and prosecutors having persistently failed to grapple with the complexity of the issues presented by its use. Troublingly, in the ensuing three decades, prosecutors, judges, and others in the legal profession have not sufficiently scrutinized the reliability of rap lyrics and the constitutional issues inherent in their misuse, in spite of studies that have shown that the introduction of rap lyrics as evidence infuses a heightened likelihood of unfair prejudice into the criminal legal process. Rap is a form of creative expression that was predominantly cultivated by Black and Brown men, and it has its origins in marginalized urban areas. The art form and its creators often invoke unsupportable negative stereotypes among jurors, and even judges. Prior legal and interdisciplinary scholarship, by experts such as Professors Andrea L. Dennis and Erik Nielson, has addressed the practice of, and problems presented by, “rap on trial.” Social science scholarship, such as Stanford University Sociology Professor Forrest Stuart’s Ballad of the Bullet, has explored the culture surrounding rap music and how that culture comes into tension with racially biased law enforcement and uninformed members of the general public. The scholarship that exists in this area tends to draw upon the convergence of these issues to propose holistic approaches to proposed reforms. This paper challenges prosecutors’ use of rap lyrics (and, by extension, rap music videos) as evidence against defendants in criminal legal proceedings: this practice often violates and undermines fundamental values of the United States justice system, the rules of evidence, and the Constitution; the practice also threatens to harm defendants, their loved ones, and their communities.

Download the article from SSRN at the link.

Morris on The Concept of International Law in the Early Advisory Opinions of the Permanent Court of International Justice (PCIJ), 1922-1930 @NomosVerlag

P. Sean Morris, University of Helsinki Faculty of Law, is publishing The Concept of International Law in the Early Advisory Opinions of the Permanent Court of International Justice (PCIJ), 1922 – 1930 in The Hope of Ages is in the Process of Realization: Establishing a World Court, 1920 – 1922 (Henri Waele and Christian Tams, eds., Nomos 2024). Here is the abstract.

This chapter examines the employment of international law as a concept in the early Advisory Opinions of the PCIJ (1922–1930). After a short review of the gradual evolution of the broader idea of the law of nations in the works of Christian Wolff and Jeremy Bentham, the central argument is that, even when the PCIJ invoked international law as a term or as an interpretative mechanism, this was often in relation to either the broader international legal environment of the 1920s, or general principles of international law. The majority of the Court’s early Advisory Opinions do not display any references to scholarship, and as such rarely invoked international law as a concept. This appears to reflect an effort to align with the shifting paradigms of the day concerning the law of nations, and the ‘new’ international law of the twentieth century. The analysis suggests further that the judicial practice consisted of a ‘jurisprudential mode’ which eventually gave way to one more closely premised on ‘mutual transactions’.

Download the essay from SSRN at the link.

Jewel on See[ing] That In a Small Town: Visual Rhetoric, Race, and Legal History in Tennessee @ljewel @UTKLaw

Lucy A. Jewel, University of Tennessee College of Law, is publishing See That in a Small Town: Visual Rhetoric, Race, and Legal History in Tennessee in the Georgetown Journal of Law & Modern Critical Race Perspectives (2023). Here is the abstract.

Jason Aldean’s music video for “Try That in a Small Town” aptly illustrates the thesis of this article, which is that when it comes to racism and the law, visual rhetoric has played and still plays an outsized role. The video shows Aldean and his band performing in front of the Maury County Courthouse in Columbia, Tennessee. This is the same courthouse where, in 1918, a white mob violently lynched a young Black man. The song recounts a laundry list of dog whistle topics relating to urban crime, mentions a gun given to me by my grandfather, and then warns the audience “Well, try that in a small town.” The Country Music Network quickly took down the video after complaints that the subtext was undeniably racist and violent. Within Aldean’s video, the Maury County Courthouse stands as a warning of the lynching that occurred outside its doors and as a reminder that while the courthouse visually represents justice, that justice is not for everyone. When it comes to race, racism, and white supremacy, the United States is polarized about what we want to see and not see. Three recent Tennessee legal controversies illustrate how visual rhetoric, which carries so much persuasive power, has been deployed for evil, to staidly symbolize white supremacy, but also for good, to propel society toward racial justice and equity. The first controversy involves the display of Confederate memorabilia inside the jury deliberation room in a small Tennessee town. The second controversy illustrates how Tennessee’s heritage protection law prevents local citizens from removing Confederate monuments from public property. The third example explains how, under Tennessee’s divisive concepts acts, conservative parents censor truthful imagery depicting U.S. history regarding race. Just as Aldean’s video struck a chord nationally, the issues boiling up in Tennessee are broadly relevant because what is happening in Tennessee maps onto national jurisprudential and cultural trends. Many states have similar heritage protection acts that prevent the removal of Confederate monuments. And, many states have enacted anti-CRT, divisive concepts bills. This article will uniquely analyze these trends from a visual perspective. Drawing upon the disciplines of legal rhetoric and visual rhetoric, Part One explains the rhetorical concepts that apply to Confederate imagery in the courtroom, on the courthouse lawn, and in textbook illustrations. Part Two delves into the Confederate Jury Room cases, discussing the cases as well as interdisciplinary explanations for what these Lost Cause symbols mean historically and what they do to observers psychologically. Part Three will address Confederate monuments in Tennessee, explaining how Tennessee’s Heritage Protection Act (amended many times in a reactionary fashion) operates in a highly undemocratic fashion, preventing local citizens from exercising control over public spaces and reinforcing toxic and traumatic narratives that reinforce white supremacy and denigrate Black experiences. This Article argues that Congress should declare all Confederate monuments on public land to be a badge of slavery within the meaning of the Thirteenth Amendment. In so doing, various state heritage protection acts would be preempted by federal law, allowing local citizens to remove these statues. Finally, Part Four will address Tennessee’s anti-CRT, “divisive concepts” acts, particularly analyzing the role that visual rhetoric plays in these attempts to stifle truthful portrayals of history. This article will conclude by drawing together the threads and patterns contained within each scene.

Download the article from SSRN at the link.

Mosvick on Free Speech for None: Mobs, Abolitionists, and Democrats and the Public Constitutional Fights over the First Amendment During the American Civil War @nmosvick

Nicholas Mosvick, National Review Institute, Buckley Legacy Project, is publishing Free Speech for All or None: Mobs, Abolitionists, and Democrats and the Public Constitutional Fights over the First Amendment During the American Civil War as a Liberty & Law Center Research Paper. Here is the abstract.

Legal historians and First Amendment scholars have long appreciated the unique constitutional challenges of wartime conditions, from the questions of prosecuting seditious conspiracy and speech to interference with the military draft to public figures and newspapers calling to the public to oppose and obstruct the war effort. Unlike the major wars of the 20th century from World War I to the Vietnam War, the American Civil War saw no free speeches before the Supreme Court during the war and therefore, the constitutional battles on major free speech questions generally took place outside courtrooms and in the area of public discourse. The most significant wartime free speech case resulted from the military arrest and trial of one of President Abraham Lincoln’s greatest domestic political opponents during the war, Democratic Congressman Clement Vallandigham of Ohio. That particular case, along with many other instances of riots, attacks on presses, arrests, and antiwar speeches, brought about a public constitutional debate in the partisan press in which both Democratic and Republican papers claimed fidelity to the founding principles of free speech and accused their opponents of rank hypocrisy. This debate shows how constitutional principles and idea suffused the public discourse of antebellum and Civil War America.

Download the paper from SSRN at the link.

Moore on Salomon vs. Salomon @UCLLaws @hartpublishing

Marc T. Moore, University College London Faculty of Laws, is publishing Salomon vs Salomon in Landmark Cases in Company Law (V. Barnes and S. Wheeler, eds., Hart Publishing) (forthcoming ).

Salomon v Salomon is widely regarded as the most significant case in English and wider Commonwealth company law history. It is typically the subject of introductory company law lectures and textbook chapters throughout much of the common law world, and no proper account of the history of the business corporation is complete without it. Accordingly, few would disagree that Salomon is a landmark – if not the landmark – case in English company law. At the same time, though, Salomon is also one of the most misunderstood cases in English legal history, and even today I suspect that many students and even teachers of company law continue to labour under certain misapprehensions about the case. In this seminar, I will argue that, far from being a so-called “landmark” company law case, Salomon is a case that should never really have come to court in the first place, or at least that should never have had to proceed beyond the initial trial court stage. As such, the principal significance of Salomon’s case resides not on a doctrinal but rather on a factual level, in enabling the authoritative reputational redemption of the Jewish defendant Aron Salomon and his family in the face of a barrage of hostile, unfair and manifestly false imputations as to their perceived conduct, motives and character traits.

Download the chapter from SSRN at the link.