Levine on Law and Redemption: Expounding and Expanding Robert Cover's Nomos and Narrative @TouroLawCenter

Samuel J. Levine, Touro University Law Center, has published Law and Redemption: Expounding and Expanding Robert Cover’s Nomos and Narrative at 34 Yale J. L. & Human. 253 (2023). Here is the abstract.

The article explores two interrelated themes that distinguish much of Robert Cover’s scholarship: Cover’s reliance on Jewish sources and his efforts to redeem American law and constitutionalism. These themes figure most famously, and in some ways most notably, in Cover’s groundbreaking Nomos and Narrative, published in 1983 and widely considered among the most significant law review articles ever written. Though less well-known, Cover’s unfinished and posthumously published book chapter, Bringing the Messiah Through the Law: A Case Study, expands upon these themes, relying more directly on Jewish law and legal history to illuminate Cover’s conceptions of legal redemption. The Article maintains that, taken together, these two pieces provide complementary views of Cover’s approach, demonstrating, at once, both the potential and the limitations of the redemptive power of law within the American legal system. The article begins with a close reading of Nomos and Narrative, noting Cover’s disappointment with American law’s failure to implement a redemptive response to the legal and societal wrongs of slavery and racial discrimination. The article then turns to Bringing the Messiah, which extends and applies Cover’s vision of law as a bridge to an alternative future, considered through the express lens of Jewish legal history. The article further examines the redemptive and transformative power of law in the context of both legal and narrative areas of Jewish tradition, suggesting that the law must acknowledge and respond to the faults of the past to allow for repentance and reconstruction toward a redeemed future. Finally, the Article closes with the proposition that perhaps Cover’s frustration with the redemptive failure of the American legal system reflects a failure of American law and society to undertake a full accounting of collective culpability for past wrongs, leaving unfulfilled a prerequisite for reconciliation, reconstruction, and redemption.

Download the article from SSRN at the link.

Muller on The President of the Senate, the Original Public Meaning of the Twelve Amendent, and the Electoral Count Reform Act @derektmuller @NDLaw @CaseWRsrvLRev

Derek T. Muller, Notre Dame Law School, has published The President of the Senate, the Original Public Meaning of the Twelfth Amendment, and the Electoral Count Reform Act at 73 Case Western Reserve Law Review 1023 (2023). Here is the abstract.

When Congress convenes under the Twelfth Amendment and the votes of presidential electors are counted, there are three different responsibilities to consider. First, who presides over the joint session where counting takes place, and what is the role of that presiding officer? Second, who counts the electoral votes? Third, who resolves disputes about those electoral votes? This Essay answers those questions. First, the presiding officer in the joint session is the President of the Senate, and she acts as any other presiding officer of a legislature. She initiates actions pursuant to precedent, parliamentary procedures, and the wishes of the chamber. And that means the chamber—here, the joint session—can constrain the President of the Senate as presiding officer. Congress did exactly that when it chose to further constrain the discretion of the President of the Senate in the Electoral Count Reform Act of 2022. Second, Congress counts electoral votes. The evidence in the text and structure of the Constitution and congressional practice before the ratification of the Twelfth Amendment supports this interpretation. Third, the power to resolve disputes runs with the power to count. And that means Congress also has the power to resolve disputes about presidential electors. Separating these responsibilities is crucial because it can be too easy to conflate some of these activities, which in turn elides over the distinctions in responsibilities. When the presiding officer acts, she does so not to count votes, but to preside over the joint session and help it proceed according to the rules and precedents set by Congress. The actions she takes may resemble the substantive act of counting. But close scrutiny of the record reflects that the President of the Senate does not count, and has never counted, votes. That is because the power to count resides in Congress, where the Twelfth Amendment lodges that power. This Essay begins by examining the text of Article II, specifically its Counting Clause. It argues that a change in verb voice in the clause removes the President of the Senate from the role of counting electoral votes. Part II then moves to the original public meaning of the Twelfth Amendment through an interpretation of congressional practices. Majorities of both houses of Congress in 1800 believed Congress had the substantive power to resolve disputes over electoral votes. These details give an important gloss to the Twelfth Amendment, which was ratified in 1804. Part III examines the structure of the Constitution. Crucially, the President of the Senate, not the Vice President, bears the responsibilities in the Twelfth Amendment. While these two terms are often used interchangeably, they are not interchangeable for purposes of understanding the separation of powers and the role of Congress. Part IV concludes with an examination of the newly enacted Electoral Count Reform Act. It identifies the major elements of the Act and it focuses on the Act's decision to expressly narrow the responsibilities of the President of the Senate in the joint session where Congress counts electoral votes. Congress’s decision to define the role of the presiding officer is squarely within its constitutional authority.

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Siegel and Ziegler on Comstockery: How Government Censorship Gave Birth to the Law of Sexual and Reproductive Freedom, and May Again Threaten It @YaleLawSch @maryrziegler

Reva Siegel, Yale University Law School, and Mary Ziegler, University of California, Davis, School of Law, are publishing Comstockery: How Government Censorship Gave Birth to the Law of Sexual and Reproductive Freedom, and May Again Threaten It in the Yale Law Journal. Here is the abstract.

In the aftermath of the overturning of Roe v. Wade, the antiabortion movement has focused on a new strategy: transforming the Comstock Act, a postal obscenity statute enacted in 1873, into a de facto national ban on abortion. Claims on the Comstock Act have been asserted in the medication abortion case now before the Supreme Court and in the campaign for the Presidency. This Article offers one of the first legal histories of the Comstock Act that reaches from its enactment to its post-Dobbs reinvention, offering critical resources for evaluating claims for revived enforcement of Comstock that are now being asserted in courts and in politics. The history this Article uncovers undermines revivalists’ claims about the Comstock statute’s meaning and the democratic legitimacy of reviving its enforcement. Yet the Article’s significance ranges well beyond the revival debate, as it uncovers in conflicts over Comstock’s enforcement popular claims on democracy, liberty, and equality in which we can recognize roots of modern free speech law and the law of sexual and reproductive liberty lost to constitutional memory.

Download the article from SSRN at the link.

Tate on Magna Carta and the Definition of Fundamental Rights @JCTate1215 @TulsaLawReview @SMULawSchool

Joshua C. Tate, Southern Methodist University School of Law, is publishing Magna Carta and the Definition of Fundamental Rights in volume 59 of the Tulsa Law Review (2024). Here is the abstract.

The U.S. Supreme Court has long relied on the language of Magna Carta in interpreting the U.S. Constitution, particularly the Fifth and Fourteenth Amendments. In recent years, the Court has concluded that the absence of certain rights from Magna Carta—and the common law tradition more generally—means that those rights ought not to be considered fundamental today. Some Justices of the Court have also crafted a highly restrictive definition of “liberty” on the basis of Magna Carta and the common law texts interpreting it. This Article argues that the Court has viewed Magna Carta too narrowly, and that “liberty” has a broader meaning in the common law tradition. Reviewing the privileges and liberties of medieval cities that were reaffirmed in Magna Carta, the Article concludes that rights to travel, to conduct one’s business without interference, and to avoid the jurisdiction of oppressive courts are all a part of the common law tradition of liberty and should be considered deeply rooted in our nation’s history and tradition.

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Akande on An Imperial History of Race-Religion in International Law @RabiatAkande @OsgoodeNews

Rabiat Akande, Osgoode Hall, has published An Imperial History of Race-Religion in International Law at 118 American Journal of International Law 1 (2024). Here is the abstract.

More than half a century after the UN’s adoption of the International Convention on the Prohibition of All Forms of Racial Discrimination, a debate has emerged over whether to extend the Convention’s protections to religious discrimination. This Article uses history to intervene in the debate. It argues that racial and religious othering were mutually co-constitutive in the colonial encounter and foundational to the making of modern international law. Moreover, the contemporary proposal to address the interplay of racial and religious othering is hardly new; iterations of that demand surfaced in the earlier twentieth century, as well. By illuminating the centrality of race-religion othering to the colonial encounter and chronicling failed attempts by Europe’s “others” to secure international legal protections, this Article makes a case for crafting an attuned response in the present.

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Bulleit on Rumpole and the Dissatified Client @RopesGray

Thomas Bulleit, Ropes & Gray LLP, has published Rumpole and the Dissatisfied Client: Four Case Studies in Client Objectives v. Lawyer Means at 14 St. Mary's Journal on Legal Malpractice & Ethics 1 (2024). Here is the abstract.

Fictional barrister-at-law Horace Rumpole is a skillful, tenacious, and even fearsome courtroom advocate for his criminal defense clients. He cares deeply about winning. But Rumpole departs from the stereotypical heroes and antiheroes of fictional courtroom drama in that he typically complies fully with the ethical constraints on advocacy and the truth-finding process. When Rumpole does occasionally stumble, it is in the other direction: by losing track of his client, and presenting often unwanted truths to elevate victory above other needs or interests that the client considers just as, or sometimes much more, important than a favorable verdict. Using several of John Mortimer’s Rumpole of the Bailey short stories to illustrate, this Article explores the sometimes-awkward interaction of the client’s right to control decisions about the objectives of a legal representation, with the lawyer’s duty to make decisions about the means. The Article tries to show how this interaction surfaces client self-determination as a positive, if not always properly-appreciated, principle of justice in our legal system, and closes with a discussion of lessons the Rumpole stories may have for so-called movement lawyering.

Download the article from SSRN at the link.

For more on Rumpole and law and literature, see 

Paul Bergman, Rumpole's Ethics, 1 Berkeley J. Ent. & Sports L. 117 (2012).

Christine A. Corcos, Law and Silence in the Legal Drama: Rumpole of the Bailey, 1 Compar(a)ison 145 (2003).

John A. Flood, Rake and Rumpole: Mavericks for Justice--Purity and Impuity in Legal Professionalism, in Law, Lawyers, and Justice: Through Australian Lenses 17.

ICYMI: Husa on Exploring Imaginative Legal History: The Legalism of the House Stark in the Game of Thrones @HusaJaakko

ICYMI: Jaakko Husa, University of Helsinki Faculty of Law, has published Exploring Imaginative Legal History: The Legalism of the House Stark in the Game of Thrones at 20 Media & Arts Law Review 181 (2015). Here is the abstract.

This article examines George R R Martin’s imaginative historical narrative in his book series A Song of Ice and Fire. The first book of the series (A Game of Thrones) is highlighted and discussed from the points of view of legal history and applied legal theory. The article concentrates on the legal mentality of one of the noble Houses in A Game of Thrones and discusses Martin’s rich narrative in its relation to the real feudal legal history and jurisprudential frameworks it displays. Analysis focuses on the rules of succession. It will be argued that even though the House Stark’s attitude and mentality can be labelled as legalistic and surprisingly modern it can be seen as a natural part of the imaginative feudal world of A Game of Thrones. The article concludes that, by studying the legalistic attitude and mentality of the House Stark, we can also learn about the legal theoretical nature of modern legalism. Paradoxically, it is also suggested that the study of imaginative legal history deepens our understanding of ‘real’ legal history. Moreover, the author argues that analysis of imaginative legal history expands our legal mind and immerses us in alternative horizons of law.

Downoad the article from SSRN at the link.

Rabban on Jhering's Influence on American Legal Thought @UTexasLaw

David M. Rabban, University of Texas School of Law, is publishing Jhering's Influence on American Legal Thought in Jhering Global (Stephan Meder and Christoph-Eric Mecke, eds., V&R unipress, 2023). Here is the abstract.

This article was published as a chapter in Jhering Global, edited by Stephan Meder and Christoph-Eric Mecke (V&R unipress 2023), a collection of essays about Jhering and his influence throughout the world. Before 1900, Jhering was a well-known model for American legal scholars, some of whom had studied law in Germany, including with Jhering himself. The most enduring work of legal scholarship ever written by an American, Oliver Wendell Holmes, Jr.’s The Common Law, published in 1881, reflects Jhering’s substantial influence, though Holmes himself often did not acknowledge it. Roscoe Pound, whose development of sociological jurisprudence before World War I trans- formed American legal scholarship, graciously and repeatedly indicated how much his own major themes derived from Jhering. Legal realists of the next generation saw themselves as extending Pound’s sociological jurisprudence, recognized its roots in Jhering, and memorably invoked Jhering himself. Eminent German law professors who emigrated to the United States as refugees from Nazi Germany in the 1930s applied Jhering’s ideas to scholarly and judicial developments in the United States. Though citations of Jhering by American scholars have continued at a relatively constant rate since World War II, most occur while assessing his influence on previous American scholars rather than as a living source for current legal analysis. Many of the recent scholars who cite Jhering, in contrast to their predecessors who often knew German, are only able to read him in translation. My strong impression is that most American legal scholars today have never even heard of Jhering. An important influence on American legal thought in the past, he is now largely unknown.

The essay is not available for download from SSRN.  

Larson on Treason and the Treatise: English Legal Treatises in the American Revolution and Early National Period @carltonfwlarson @UCDavisLaw

Carlton F. W. Larson, University of California, Davis, School of Law, has published Treason and the Treatise: English Legal Treatises in the American Revolution and Early National Period in Perspectives on the Legal Treatise: Proceedings of the Second Yale Legal Information Symposium. Here is the abstract.

Following independence, American attorneys and judges relied extensively on English legal treatises to interpret the framework of American treason law. These treatises became vital participants in the ongoing national conversation about sovereignty, allegiance, and independence. Despite the significant changes wrought by independence, the American legal establishment relied on an English legal framework—defined almost entirely by treatises—when interpreting the highest crime known to the law.

Download the article from SSRN at the link.

Solove and Hartzog on Kafka in the Age of AI and the Futility of Privacy as Control @DanielSolove @hartzog @gwlaw @BU_Law @BULawReview

Daniel J. Solove, George Washington Law School, and Woodrow Hartzog, Boston University Law School, Stanford Law School Center for Internet and Society, are publishing Kafka in the Age of AI and the Futility of Privacy as Control in volume 104 of the Boston University Law Review. Here is the abstract.

Although writing more than a century ago, Franz Kafka captured the core problem of digital technologies – how individuals are rendered powerless and vulnerable. During the past fifty years, and especially in the 21st century, privacy laws have been sprouting up around the world. These laws are often based heavily on an Individual Control Model that aims to empower individuals with rights to help them control the collection, use, and disclosure of their data. In this Essay, we argue that although Kafka starkly shows us the plight of the disempowered individual, his work also paradoxically suggests that empowering the individual isn’t the answer to protecting privacy, especially in the age of artificial intelligence. In Kafka’s world, characters readily submit to authority, even when they aren’t forced and even when doing so leads to injury or death. The victims are blamed, and they even blame themselves. Although Kafka’s view of human nature is exaggerated for darkly comedic effect, it nevertheless captures many truths that privacy law must reckon with. Even if dark patterns and dirty manipulative practices are cleaned up, people will still make bad decisions about privacy. Despite warnings, people will embrace the technologies that hurt them. When given control over their data, people will give it right back. And when people’s data is used in unexpected and harmful ways, people will often blame themselves. Kafka’s provides key insights for regulating privacy in the age of AI. The law can’t empower individuals when it is the system that renders them powerless. Ultimately, privacy law’s primary goal should not be to give individuals control over their data. Instead, the law should focus on ensuring a societal structure that brings the collection, use, and disclosure of personal data under control.

Download the article from SSRN at the link.

Priel on The Legal Realists on Law and Literature @OsgoodeNews @Elgar_Law @ElgarPublishing

Dan Priel, Osgoode Hall, is publishing The Legal Realists on Law and Literature in The Elgar Concise Encyclopedia of Law and Literature (Robert Spoo & Simon Stern eds., 2024) (Forthcoming). Here is the abstract.

This encyclopedia entry considers the legal realists’ neglected contribution to law and literature. Starting with Cardozo’s essay ‘law and literature’ on the importance of judicial style, it then considers the contributions of the legal realists to the topic, focusing especially on Karl Llewellyn and Jerome Frank. Cardozo and Frank—both judges who were interested in making sure they effectively conveyed their ideas—focused on the style a judge should adopt. By contrast, Llewellyn’s more sociological perspective was concerned with how different periods (as well as different jurisdictions) were dominated by different judicial styles. However, in both cases the question of judicial style also had a political aspect. For Frank, judicial style was important for clearly communicating with the average person subject to law; for Llewellyn, judicial style mattered, because there was a connection between the form of a decision and its substantive quality.

Download the essay from SSRN at the link.