Frampton on The First Black Jurors and the Integration of the American Jury @TFrampton @UVALaw @nyulawreview

Thomas Frampton, University of Virginia School of Law, is publishing The First Black Jurors and the Integration of the American Jury in the New York University Law Review for 2024. Here is the abstract.

Supreme Court opinions involving race and the jury invariably open with the Fourteenth Amendment, the Civil Rights Act of 1875, or landmark cases like Strauder v. West Virginia (1880). Legal scholars and historians unanimously report that free people of color did not serve as jurors, in either the North or South, until 1860. In fact, this Article shows, Black men served as jurors in antebellum America decades earlier than anyone has previously realized. While instances of early Black jury service were rare, campaigns insisting upon Black citizens’ admission to the jury-box were not. From the late 1830s onward, Black activists across the country organized to abolish the all-white jury. They faced, and occasionally overcame, staunch resistance. This Article uses jury lists, court records, convention minutes, diaries, bills of sale, tax rolls, and other overlooked primary sources to recover these forgotten efforts, led by activists who understood the jury-box to be both a marker and maker of citizenship. A broader historical perspective—one that centers Black activists in the decades before the ratification of the Fourteenth Amendment in 1868—offers a new way of thinking about the relationship between race, rights, citizenship, and the jury.

Download the article from SSRN at the link.

Ollikainen-Read and Murphy on Law as a Means of Communicating Colonial Control in India: Max Planck Lawcast, Episode 8 @maxplancklaw @mpilhlt

Erica Ollikainen-Read, Max Planck Institute for Legal History and Legal Theory, and Christopher Murphy, Max Planck Institute for the Study of Crime, Security and Law, have published Law as a Means of Communicating Colonial Control in India, as Max Planck Lawcast, Episode 8. Here is the abstract.

In this episode of the Lawcast, Erica Ollikainen-Read explains to Christopher Murphy that the British Empire was not just shipping, merchants, soldiers, cannon, and conquest. Rather, some of the most long-lasting parts of the British Empire are the ideas, laws, and symbols which Britain transplanted to their colonies, some of which remain to this day. One such case in point is India, where the British colonial presence and the nature of Britain’s priorities shifted over time. By viewing the law from the perspective of communication, we can see how colonial legal culture and the way in which it was used as a tool for control in India also changed

. Listen on: Spotify and Apple. For more Max Planck Lawcasts: https://law.mpg.de/lawcast/.

Teaching Materials on Comics, From Nick Sousanis @nsousanis on all the socials fwiw @SFSU

Newly available from Nick Sousanis:

Wonderful materials on how to make and use comics in the classroom at Spin, Weave, and Cut.

Nick is a professor at San Francisco State University and the author of the brilliant Unflattening (Harvard University Press, 2015). 

Davies on A Stout Stanza of Many Meanings, Maybe: The Romantic Roots of Some Buried Caesar @GB2d @horacefuller @georgemasonlaw

Ross E. Davies, George Mason University Law School; The Green Bag, has published A Stout Stanza of Many Meanings, Maybe: The Romantic Roots of Some Buried Caesar at 25 The Gazette, a Journal of Detective Fiction 4 (Autumn 2023).

This paper presents a bit of speculation — actually, two speculations — about Rex Stout’s sixth Nero Wolfe / Archie Goodwin novel, Some Buried Caesar. I hope those speculations will inspire — or perhaps it would be better to say incite — discussion about Stout’s choice of title for the tale. First, the question: Where did the title for this story come from? Second, the answers: (a) Stout’s familiarity (during an early romance) with the bloody yet bucolic lines from a famous poem — Omar Khayyam’s Rubáiyát — made the titling of a bloody murder mystery with a romantic plot thread in a bucolic setting easy, and (b) the Rubáiyát was connected in Stout’s mind not only with fine poetic lines about bloodshed and bucolics, but also with fraud, which was also a plot thread in Some Buried Caesar.

Download the article from SSRN at the link.

Call For Participation, 2024 European Society for the Study of English Conference: Panel: What Do the Humanities Have to Say to Law? @Greta_Olson_

 Call for participation: The 2024 European Society for the Study of English conference.

The conference will take place at the University of Lausanne, Switzerland, 26-30 August 2024. Calls for participation still include call for individual papers and posters and participation in the doctoral symposium. Both close January 31, 2024. 

Seminar 56, convened by Professors Greta Olson (University of Giessen, Germany) greta.olson@anglistik.uni-giessen.de,  Armelle Sabatier (Paris-Panthéon-Assas University, France) armelle.sabatier@u-paris2.fr, and Claire Wrobel (Paris-Panthéon-Assas University, France), has the following subject:

What do the Humanities have to say to Law?

 

CALL FOR SEMINAR PAPERS

 

For an in person panel at the

 

Seventeenth European Society for the Study of English conference in Lausanne, Switzerland (26-30 August 2024)

https://wp.unil.ch/esse2024/

 

 

Seminar 56: What do the Humanities have to say to Law?

 

This seminar makes the claim that the Humanities have a great deal to say to Law, legal

training, and critical legal theory. We investigate Law and Humanities research from the

perspectives of legal actors as well as scholars working in English Departments, located in

Continental Europe, bringing their own literary and legal systemic traditions to common law

and Anglophone legal texts. The seminar investigates new directions in Law and the

Humanities, including – but not exclusively – how affect and metaphor theory change the

primarily narrative-based research that has dominated the past.

 

Please send 250-word abstracts and a brief bio to all of the convenors before February 10th.

 

Bahnson and Shreve on Legal Treatises and the Evolution of Civil Rights Case Law @DukeLawLibrary @DukeLaw

Jane Bahnson and Wickliffe Shreve, both of Duke University School of Law, have published Legal Treatises and the Evolution of Civil Rights Case Law as Duke Law School Public Law & Legal Theory Series No. 2023-68. Here is the abstract.

During the 2022 term, the Supreme Court cited treatises to change legal precedent in two important civil rights cases. We examined the Supreme Court’s use of treatises in previous terms to reverse course on civil rights. Of 315 opinions identified, approximately half included treatise citations, more often by conservative-leaning Justices. This paper discusses the use of treatises by the Supreme Court to support its decisions in civil rights cases.

Download the article from SSRN at the link.

Zhang on The Private Law Influence of the Great Qing Code @ZhangTaisu @YaleLawSch @CambridgeUP

Taisu Zhang, Yale Law School, has published The Private Law Influence of the Great Qing Code in The Making of the Chinese Civil Code 249-268 (Hao Jiang & Pietro Sirena eds., Cambridge Univ. Press, 2023). Here is the abstract.

This chapter considers the socioeconomic functionality of legal codes and codification through the lens of late imperial Chinese legal history. Specifically, it asks whether formal legal codes can wield significant influence over private socioeconomic behavior despite being poorly enforced—or even unenforced—and whether such influence derives, in part, from the symbolic value of codification itself. It argues that the answer to both questions is likely “yes,” at least in the context of Qing Dynasty private law. This contains potentially generalizable insights into the nature of legal authority and prestige, some of which may potentially be applied to the recent passage of the Chinese Civil Code in 2020.

Download the essay from SSRN at the link.

van den Berge on Roman Dictatorship: Emergency Government and the Limits of Legality @berge_lukas @UniUtrecht

Lukas van den Berge, Utrecht University Faculty of Law, has published Roman Dictatorship: Emergency Government and the Limits of Legality as a Utrecht University School of Law Research Paper. Here is the abstrac

Doctrinal approaches to Roman law are currently often supplemented by contextual legal-historical scholarship that aims to expose Roman law’s connections with its socio-political, religious and broader intellectual environment. This article draws attention to the relevance of such contextual research for modern legal problems. An analysis of the Roman dictatorship and its reception history in legal and constitutional scholarship serves as a case in point. Contrary to common belief, the far-reaching powers of the Roman dictator – acting to save the Roman Republic in times of great peril – were controlled by informal rather than formal legal restraints. A corrected understanding of the Roman dictatorship is arguably not only important for an appropriate assessment of the Roman constitution itself, but also for current debates on the limits of legality in times of emergency.

Download the article from SSRN at the link.

Stanchi on The Rhetoric of Rape Through the Lens of Commonwealth of Berkowitz @BoydLawUNLV

Kathryn Stanchi, University of Nevada, Las Vegas, School of Law, is publishing The Rhetoric of Rape Through the Lens of Commonwealth v. Berkowitz in the International Journal for the Semiotics of Law. Here is the abstract.

United States law and culture have yet to find a constructive and fair way to talk about rape, especially in “non-paradigmatic” rape cases like acquaintance or date rape. Particularly on college campuses, acquaintance rape is an ongoing, severe problem. Leading legal minds disagree sharply on how to address it. In part, this polarizing debate stems from our collective inability to free our language of the myths and stock stories that plague the subject of rape. No court case better exemplifies the problem than the notorious decision of the Pennsylvania Supreme Court in Commonwealth v. Berkowitz, one of the most widely taught rape cases in the United States. In his empirical study of attitudes on rape, Professor Dan Kahan used the Berkowitz facts in part because they are such an iconic representation of some of the more difficult and troubling issues surrounding acquaintance rape. In that study, Kahan concluded that whether people perceive a story as describing “rape” depends primarily on cultural cognition, meaning the cultural group to which the reader of the story belongs. The text and substance of the law’s definition of rape mattered little. Kahan concluded that if we wish to change outcomes in rape cases, the cultural understandings of rape, more than the law, must change. This essay takes Kahan’s conclusion that cultural understanding is the primary driver of rape outcomes and asks the question: from where does that cultural understanding come? In no small part, this essay argues, those cultural beliefs come from the law, particularly from legal narratives. The facts of judicial opinions reflect the judges’ cultural understanding of rape and then that cultural understanding becomes what rape is (and isn’t). That image of rape then powerfully influences cultural understanding within and outside of law. It is a recursive process by which legal narratives create and reinforce cultural understanding which then itself creates and reinforces legal narratives and so on in an endless loop. In this way, law is neither irrelevant nor innocent in the outcome of rape cases. It is just exerting its influence, often imperceptibly, through rhetoric.

Download the article from SSRN at the link.

Epps and Green on Black Lawyers Matter: An Oral History of Race-Inclusive Admissions at Yale @TempleLaw @TempleEpps

JoAnne Epps and Craig Green, both of Temple University School of Law, have published Black Lawyers Matter: An Oral History of Race-Inclusive Admissions at Yale as Temple University Legal Studies Research Paper No. 2023-21. Here is the abstract.

Almost no one knows that Yale had the first affirmative action policy of any elite law school in the country. Twelve Black students who were admitted in 1968 formed the largest nonwhite group to attend Yale Law School in 150 years. At the time, race-inclusive admissions were immediately condemned as an “explosive sociological experiment” in apartheid segregation that would damage Yale’s reputation while producing a sense of “intellectual superiority among the white students” and “intellectual inferiority among the Black students.” Critics endorsed a general aspiration for law schools to educate students from racial minority groups, but not at elite institutions like Yale: “There are many good regional and local law schools in Philadelphia, Boston, Los Angeles, and other metropolitan areas, where Black law students . . . can study law in competition with students of similar qualifications and aptitudes.” Despite those critiques and predictions, all of the twelve Black Yale students eventually became judges, professors, civil rights lawyers, government leaders, in-house counsel, or successful private attorneys. For more than fifty years—an “Affirmative Action Era”—elite law schools across the United States have admitted Black students who transformed the history of legal education, the legal profession, and society at large. To understand and document that phenomenon, we sought to contact every Black Yale law student from the entering classes of 1963 to 1978. Using oral history techniques, we interviewed forty-seven people in thirteen states, including one person from each class year. Such interviews offer unparalleled detail about Black students who attended Yale in this period, what law school was like at the time, professional opportunities that emerged afterward, and structural obstacles that individuals had to confront, overcome, or dismantle in law school and throughout their professional lives. This Article uses new historical materials and interpretations to challenge modern stereotypes and generalizations about affirmative action that have been endorsed by prominent critics including Justice Clarence Thomas. Specific historical narratives from former Yale students illustrate dramatic risks of colorblind constitutionalism across the country, and this Article’s multilayered history of affirmative action supports solutions that recognize the profound importance of Black law students in the past, present, and future. 

Download the article from SSRN at the link.

Hooton and Murphy on Provincial Poor Laws and Pauper Auctions: The Elizabethan Welfare System in Colonial Canada @MPICSL @mpilhlt @maxplancklaw

Victoria Hooton, Max Planck Institute for Legal History and Legal Theory, and Christopher Murphy, Max Planck Institute for the Study of Crime, Security and Law, have published Provincial Poor Laws and Pauper Auctions: The Elizabethan Welfare System in Colonial Canada as Max Planck Lawcast, Episode 3. Here is the abstract.

In this episode Christopher Murphy travels back in time with Victoria Hooton to discuss the regulation of poverty in England and Wales in the early 17th century, with a specific focus on the 1601 Act for the Relief of the Poor. The Act reflected the prevailing moral sensibilities of the time, regarding who the worthy and the unworthy poor were and where the boundaries of welfare responsibility were to be drawn. After providing an overview of the legislation, the focus turns to the implementation of this welfare system in the Canadian provinces of Nova Scotia and New Brunswick during the mid-18th and 19th century.

Listen on: Spotify and Apple. For more Max Planck Lawcasts: https://law.mpg.de/lawcast/.

Edmonds on Why We Should Stop Talking About Violent Offenders: Storytelling and Decarceration @UMichLaw @nulawreview

Mira Edmonds, University of Michigan Law School, is publishing Why We Should Stop Talking About Violent Offenders: Storytelling and Decarceration in the Northeastern University Law School. Here is the abstract.

The movement to decarcerate risks foundering because of its failure to grapple with so-called “violent offenders,” who make up nearly half of U.S. prisoners. The treatment of people serving sentences for offenses categorized as violent is a primary reason for the continued problem of mass incarceration, despite widespread awareness of the phenomenon and significant bipartisan interest in its reduction. People convicted of “violent offenses” are serving historically anomalous and excessively long sentences, are generally denied clemency and compassionate release, and are excluded from a wide array of legal reform and policy changes with decarceral aims. Keeping these people in prison for life or near life sentences is extraordinarily expensive for state budgets, largely unnecessary from a public safety perspective, and cruel and unusual punishment from the viewpoint of international and historical standards. While the moral imperative to release those serving draconian sentences for nonviolent drug offenses is widely if not universally accepted, such efforts will ultimately be a drop in the bucket if we fail to address the 58% of state prisoners who are serving sentences for offenses categorized as violent. Quantitative data about the low rates of recidivism for people released after serving long sentences for violent offenses will not alone shift the focus of our policies or politics. Rather, we need to develop a more nuanced understanding of violent offenses and violent offenders by hearing the voices of people who have been directly impacted by violence and by the system’s response to violence. These are, in many cases, the same people. Their stories are complex and human, defying simplistic narratives about innocent victims and bad offenders. Storytelling offers possibilities for reconceptualizing the stale terminology around violence and for shifting the discourse. This Article draws on insights from the literature on epistemic injustice and criminal law democratization, together with the legal storytelling literature. It explores the power of storytelling as an advocacy tool in the slow work of person-by-person decarceration during back-end processes like clemency, parole, and compassionate release, as well as part of the broader movement for systemic decarceration. Storytelling is an important tool for advocates working within the system, as well as for abolitionists seeking to end the system. In some contexts, advocates and activists are best situated to tell these stories, but ultimately people should be given the opportunity and tools to tell their own stories.

Download the article from SSRN at the link.

Buffington on Being vs. Because: New Observations on the Syntax & Semantics of the US Constitution's Second Amendment @AlbanyLaw

Joe Buffington, Albany Law School, has published Being vs. Because: New Observations on the Syntax & Semantics of the US Constitution’s Second Amendment. Here is the abstract.

The Second Amendment of the US Constitution is ambiguous due to its subordination of one clause to another without the use of an overt subordinating conjunction. Many scholars have argued that the subordination is more or less similar, if not identical, to what is seen in because-clauses. One such scholar, Karen Sullivan, has recently used corpus linguistics to conclude that the likeliest interpretation of the Second Amendment’s subordination when the Amendment was written was one of “external causation,” where the militia clause is understood as the real-world reason why the right-to-bear-arms clause is true. This essay responds to Sullivan’s significant work by presenting three synchronic differences between being-clauses and because-clauses that suggest that external causation may not be an optimal interpretation of the Amendment’s structure, after all. An alternative analysis, where the missing conjunction is modeled as a covert proform, is proposed, and consequences of the analysis are considered – in particular, I present a novel argument that the US Supreme Court’s controversial decision in District of Columbia v. Heller was, in essence, correct.

Download the essay from SSRN at the link.

ICYMI: Shugerman on Removal of Context: Blackstone, Limited Monarchy, and the Limits of Unitary Originalism @jedshug @BU_Law

ICYMI: Jed H. Shugerman, Boston University School of Law, has published Removal of Context: Blackstone, Limited Monarchy, and the Limits of Unitary Originalism at 33 Yale Journal of Law & the Humanities 125 (2022). Here is the abstract.

This article is part of a series on Article II, questioning the unitary theory’s three pillars: the Executive Vesting Clause, the Take Care Clause (or the “Faithful Execution” clauses), and the Decision of 1789 (or more accurately, the Indecisions of 1789). “Removal of Context” focuses on the “executive power” part of the Vesting Clause: Did “executive power” imply supervision and removal in the eighteenth century? What do the unitary theorists cite to support their claim that “executive power” includes removal, and “indefeasibly” so? Unitary executive theorists rely on the English Crown in the seventeenth and eighteenth centuries, but they overlook or obscure the problems of relying on England’s limited monarchy, the era’s rise of Parliamentary supremacy over the Crown and its power to eliminate or regulate (i.e., make defeasible) royal prerogatives. There appears to be no evidence that executive removal was ever conceived as a “royal prerogative” at all, and the historical record indicates that the king did not have a general removal power at pleasure. The structure of the historical comparison has a major flaw: They concede that the Constitution explicitly limits many core royal powers, such war, peace (treaties), and the veto, so that the president is weaker than the king, but somehow Article II implies unnamed “executive powers” (like removal) that make a president stronger than a king? Moreover, there were eighteenth-century royal prerogatives related to law execution (prorogue and dissolution), but no one claims Article II “executive power” implies them. When one investigates the unitary evidence more closely and follows their sources, one finds a pattern of misinterpreting historical sources, especially Blackstone in amicus briefs and law review articles in the unitary executive scholarship. In particular, the recent brief by unitary scholars in Seila Law misinterprets Blackstone’s use of the word “disposing” of offices as removing, instead of dispensing or appointing (which are indicated by context and general usage) and then misquotes a passage from Blackstone, reversing his meaning from his uncertainty about the relevant law of offices to a certain positive claim about removal. These misreadings are more than just small or narrow errors. They obscure more significant points: Blackstone was fundamentally in favor of parliamentary supremacy, against “indefeasible” executive powers; and Blackstone never mentions removal as a royal prerogative or a general executive power, which is powerful counter-evidence to the unitary theorists’ assumptions. These errors are also a cautionary moment about originalist methods and the notion that originalism is more reliable or objective than other methods of interpretation.

Download the article from SSRN at the link.

See also 

Jed H. Shugerman, The Indecisions of 1789: Appendices on the Misuse of Historical Sources in Unitary Executive Theory, Fordham Law Legal Studies Research Paper No. 4359596.