Logan on Policing Emotions: What Social Psychology Can Teach Fourth Amendment Doctrine @FSUCollegeofLaw @buffalolawrev

Wayne A. Logan, Florida State University College of Law, is publishing Policing Emotions: What Social Psychology Can Teach Fourth Amendment Doctrine in volume 77 of the Buffalo Law Review.

Police officers, like the citizens they serve, often believe that they can accurately and reliably discern emotions from the faces of individuals they encounter on street patrol. An officer, for instance, might interpret a facial expression to infer that an individual is surprised by the officer’s presence, which can serve as a factor justifying a seizure based on reasonable articulable suspicion of criminal activity. Judges, for their part, often defer to the facial emotion recognition (FER) wherewithal of police when assessing the sufficiency of police assertions of reasonable suspicion. There is a major problem, however, with the accepted wisdom: it lacks empirical support. As a growing body of research shows, human faces are not like emojis or emoticons; not only is the purported connection between particular emotions and facial expressions weak, but facial expressions themselves are variously interpreted. Moreover, FER depends on multiple individualized factors such as the viewer’s age, gender, personality traits, life experiences, and emotional intelligence, and whether the viewer and viewed are of the same racial or ethnic background. Worse yet, conventional experimental studies advanced in support of FER suffer from major methodological problems, undercutting its averred accuracy and reliability. This essay aims to explode the myth of FER and urges its judicial disregard in the assessment of whether police have reasonable suspicion to detain an individual. The intervention is as timely as it is important. In the immediate term, allowing continued judicial reliance on an empirically unfounded data point raises obvious constitutional concern. Longer term, reliance on FER is problematic because it is now being combined with artificial intelligence technology, soon to likely include roboticized policing and “emotiveillance” efforts more generally. To neutralize these threats, the essay urges that, like similar pseudo-sciences of the past, such as phrenology and physiognomy, FER should be relegated to the dustbin of history, rather than serving as an accepted basis for police seizures, with all the significant personal and social harms they impose.

Download the article from SSRN at the link.

Tobia on Methodology and Innovation in Jurisprudence @kevin_tobia @kevintobia.bsky.social @GeorgetownLaw

Kevin Tobia, Georgetown University Law Center; Georgetown University Department of Philosophy, has published Methodology and Innovation in Jurisprudence at 123 Columbia Law Review 2483-2516 (2023). Here is the abstract.

Jurisprudence aims to identify and explain important features of law. To accomplish this task, what method should one employ? Elucidating Law, a tour de force in “the philosophy of legal philosophy,” develops an instructive account of how philosophers “elucidate law,” which in turn elucidates jurisprudence’s own aims and methods. This Review introduces the book, with emphasis on its discussion of methodology. Next, the Review proposes complementing methodological clarification with methodological innovation. Jurisprudence should ask some timeless questions, but its methods need not stagnate. Consider that jurisprudence has a long tradition of asserting claims about how “we” understand the law—in which “we” might refer to all people, citizens of a jurisdiction, ordinary people, legal experts, or legal officials. There are now rich empirical literatures that bear on these claims, and methods from “experimental jurisprudence” and related disciplines can assess untested assertions. Today’s jurisprudence can achieve greater rigor by complementing traditional methods with empirical ones.

Download the article from SSRN at the link.

(Reviewing Dickson, Elucidating Law, OUP, 2022).

Koppelman on Essentially Contested Histories: On Recent Efforts to Cabin the Meanings of Slavery and Disestablishment @AndrewKoppelman @NorthwesternLaw @_WayneLaw

Andrew Koppelman, Northwestern Uniersity School of Law, is pulishing Essentially Contested Histories: On Recent Efforts to Cabin the Meanings of Slavery and Disestablishment in the Wayne Law Review. Here is the abstract.

Some of the Constitution’s provisions decree that certain specific historical evils must not happen again. Such provisions generate a unique interpretive problem. The object of interpretation is not a word or a phrase, but a repudiated cluster of practices. Any construction of such provisions must offer a description of what was wrong with the original evil, so that the interpreter can decide whether the challenged action repeats that wrong. The description will inevitably be shaped by the values of the interpreter. Every historical episode is susceptible to multiple interpretations, depending on which aspects the interpreter deems salient. One danger, which happened in the past and is happening again, is that an interpreter who is untroubled by some aspects of the historical evil may improperly narrow its scope by deeming those aspects outside the prohibition. I illustrate this by focusing on two constitutional provisions, the Thirteenth Amendment’s prohibition of slavery and the First Amendment’s prohibition of establishments of religion. Each has been subjected to narrowing constructions, which focus on uncontroversial aspects of the historical wrong and then assert without further argument that they exhaust the provision’s coverage. The most recent instance of this maneuver is Justice Gorsuch’s reformulation of Establishment Clause law, cited with approval in his opinion for the Court in Kennedy v. Bremerton, which would allow previously impermissible public endorsements of specific religious beliefs. His interpretive strategy is the same one that the Court used to restrict the scope of the Thirteenth Amendment in the Civil Rights Cases, Plessy v. Ferguson, and Hodges v. United States.

Download the article from SSRN at the link.

Annual Semiotics of Law Roundtable, Keele University, July 16-18, 2024

From Mark Featherstone, Professor of Sociology, Keele University:

I am writing to draw your attention to the upcoming 24th Annual Semiotics of Law Roundtable that will be held at Keele University from 16th to 18th July, 2024.

Law in an Age of Permacrisis

‘Permacrisis’ was the word of the year in 2022. By then it had become clear that several interconnected crises had, for decades, not shown any sign of abating. On all levels - local, regional and global - crises seem to have been caught in ever-intensifying spirals. In the spheres of international relations, politics, economics, environmental policy, energy and critical resource/infrastructure, demographic evolution, culture and ideological formation, unpredictability or the sheer unravelling of consistency seem to be spreading through linkages, nodes, and interlocked networks. Reactions and remedies often contributed to the overall instability, leading to a generalised sense of perpetual, unstoppable crisis.

Economic and ecological collapse is easier to imagine than before. This begs the question as to how law operates in an era marked by such a pervasive sense of ‘permacrisis’. Can law operate in what some might perhaps call an age of near entropy? Where and how does law manifest itself in times of continuous crisis? What is the future of law? Will law have to be re-imagined, or has it been re-imagined already? Where and how? The conference invites contributions to these and related questions and themes.

For further details and information relating to registration and fees, please visit the conference website at:

https://www.keele.ac.uk/law-age-permacrisis/

Spitzer on Understanding Gun Law History After Bruen: Moving Forward by Looking Back @spitzerb @WMLawSchool

Robert J. Spitzer, SUNY Cortland; College of William & Mary School of Law, is publishing Understanding Gun Law History After Bruen: Moving Forward by Looking Back in volume 51 of the Fordham Urban Law Journal. Here is the abstract.

The Supreme Court’s 2022 Bruen Second Amendment decision has remade the criteria for judging the constitutionality of contemporary gun laws. As a consequence, every manner of modern gun law has been subject to new court challenges. Courts and lawyers are now struggling to determine whether modern challenged gun laws are “consistent with this Nation's historical tradition of firearm regulation.” My article takes Bruen at its word that American weapons law history matters as the primary basis for determining the constitutionality of modern gun laws. Therefore, this article does two things. First, I argue that a specific and sequential set of steps explains the relationship between the invention and development of various weapons and weapons technologies, their circulation in society, and subsequent governmental efforts to regulate, restrict, or prohibit those weapons in order to protect public safety and thwart crime. This relationship exists consistently throughout American history and is found to apply to three types of dangerous weapons—guns, fighting knives, and certain types of clubs and other blunt objects—that were subject to widespread, extensive, and varied regulation in the colonies, states, and localities across 300 years of American history. Second, this framework is applied through a detailed examination of weapons and weapons laws, including state restrictions on fully automatic and semiautomatic firearms in the early twentieth century; surprisingly extensive regulation of ammunition feeding devices during the same period; pre-20th century firearms technologies, incorporating an array of experimental multi-shot weapons dating back several hundred years; and historical restrictions on fighting knives (most notably the Bowie knife), blunt weapons and clubs, pistols, and trap guns. This article demonstrates that firearms and other dangerous weapons were subject to remarkably strict, consistent, and wide-ranging regulation throughout our history when they entered society, proliferated, and resulted in violence, harm, criminality, or threats to public safety and good order. This is even more remarkable given that the United States was an evolving and developing nation-state that could not claim to have reached maturity until the twentieth century. Gun ownership is as old as the country. But so are laws restricting guns and other dangerous weapons. If this history teaches anything, it is that the state has no less an abiding interest in preserving public safety today by restricting the tools that magnify violence than it did in prior centuries. Contemporary firearms restrictions are merely the latest iteration of a centuries-long tradition of weapons regulation and restriction.

Download the article from SSRN at the link.

Rackstraw on When Reality TV Creates Reality: How "Copaganda" Affects Police, Communities, and Viewers @emmarackstraw

Emma Rackstraw, Harvard University, has published When Reality TV Creates Reality: How “Copaganda” Affects Police, Communities, and Viewers. Here is the abstract.

Television shows with police officer protagonists are ubiquitous on American television. Both fictional shows and reality shows portray a world where criminals are nearly always apprehended. However, this is a distortion of reality, as crimes mostly go unsolved and police officers infrequently make arrests. What does the omnipresence of this genre mean for the general public's conception of police, for the practice of policing, and for the communities being policed? I use department-level and officer-level arrest data to find that arrests for low-level, victimless crimes increase by 20 percent while departments film with reality television shows, concentrated in the officers actively followed by cameras. These arrests do not meaningfully improve public safety and come at the cost of the local public's confidence. I then document quasi-experimentally and experimentally that these shows -- particularly their overrepresentation of arrests -- improve non-constituent viewer attitudes towards and beliefs about the police. The results are consistent with "copaganda" shows inflating trust in police nationally while subjecting some to harsher but not more effective enforcement. I consider the implications for police reform.

Download the article from SSRN at the link.

CFP (Updated): In the Thick of Images: Law, History, and the Visual

From Laura Petersen, University of Lucerne, co-sponsor of the conference In the Thick of Images: Law, History, and the Visual, here is an updated version of the CFP and a list of the keynote speakers.

CALL FOR PAPERS
In the Thick of Images: Law, History, and the Visual 
Conference

Monday 10 + Tuesday 11 June 2024 
University of Lucerne 

“Suppose that whatever we’ve done, felt, and thought has always happened in the thick of images.” (Anand Pandian, Reel Word: An Anthropology of Creation) 

The ‘visual turn’ has long been turning in critical and cultural studies of law (see Douzinas & Nead 1999). In the past twenty-five years, a growing body of scholarship has evolved that emphasises law’s “constitutive imbrication” (Crawley 2020) with an array of visual forms, and elaborates on the ways in which images “shape and transform legal life” (Sarat et al. 2005). Weaving together an eclectic set of theories, concepts, methods and materials, such studies refuse thin readings of images as merely illustrative of law, and invite us to think more deeply about their ideological and visual operations – about the meanings they carry and make available, about their material presence and affective effects, and about the cultural-political and cultural-legal work they perform across their multiple contexts of production, circulation and reception.

Much of this scholarship focuses on the contemporary conjuncture of law and visuality. Yet law’s imbrication with the visual is not exclusive to the present; law has always lived, happened and mattered “in the thick of images”. This is the starting point for our two-day conference, which seeks to explicitly foreground historical and historicist work on law and the visual. Situated at the disciplinary crossroads of law, history, visual cultural studies, art history, film and photography studies, In the Thick of Images invites multiple viewpoints and approaches to converge on ways of negotiating the entanglements of law, history and the visual – in various contexts, scales and timeframes.

Link to the full Call for Papers and other information

Proposals due by 19 January 2024 to laura.petersen@unilu.ch 

Convenors

Steven Howe (steven.howe@unilu.ch)
Laura Petersen (laura.petersen@unilu.ch)
Nicole Schraner (nicole.schraner@unilu.ch)

 

The conference forms part of the SNSF research project: Imagining Justice: Law, Politics and Popular Visual Culture in Weimar Germany

 

Keynote speakers:

• Valérie Hayaert (University of Warwick)
• Desmond Manderson (Australian National University)
• Jolene Rickard (Cornell University)
• Frederic J. Schwartz (University College London)