Harris on Ida B. Wells' Train Ride in Memphis and the Dawn of Jim Crow @memlawschool

Lee Harris, University of Memphis School of Law, has published Ida B. Wells' Train Ride in Memphis and the Dawn of Jim Crow at 2 Journal of American Constitutional History 297 (2024). Here is the abstract.

Before there was Rosa Parks, Ida B. Wells and women across the United States during the late nineteenth century were challenging discriminatory practices on the public transit system of their era: the railroads. In 1881, Wells, who would eventually become a history-making anti-lynching crusader, was just 19 years old. She was readying herself to leave Holly Springs, Mississippi, her hometown, for the first time and move to Memphis for a higher-paying teaching job. She planned to commute by train to and from her new position. Developers had laid train tracks around the city, and Memphis boasted seven rail lines. In those years of her youth, before she left the South for the national stage, Ida B. Wells was a regular train commuter in Memphis. Also, at the time of her young adulthood, racial segregation was still at its embryonic stage. However, principles of segregation had been spreading incredibly fast into multiple domains, including the nascent transit system. Soon enough, her usual train commute from Memphis set the backdrop for one of her most consequential legal changes taking place in the country and the arrival of Jim Crow. Before Rosa Parks, Ida B. Wells was one of the first women in America who refused to give up her seat and made a legal challenge to the segregationist system that was emerging around the nation. Although she did not win, her actions set the stage for the next several decades of the fight against segregation and Jim Crow.

Download the article from SSRN at the link.

Kent on Executive Power, the Royal Prerogative, and the Founders' Presidency @andrewkent33 @FordhamLawNYC

Andrew Kent, Fordham University School of Law, has published Executive Power, the Royal Prerogative, and the Founders' Presidency at 2 Journal of American Constitutional History 403 (2024). Here is the abstract.

The original meaning of the opening clause of Article II of the Constitution--which vests "[t]he executive power ... in a President of the United States"--has been debated inconclusively for over 200 years. As originalism gains ground as an interpretive theory in U.S. courts, and the U.S. executive branch continues to read the clause very expansively, often by making claims about original meaning, an intense scholarly debate has raged in recent decades about the Clause. A cohort of influential originalist scholars read the Executive Power Clause as a broad grant of war, foreign affairs, and national security power supposedly considered "executive" in nature in the eighteenth century, defined by reference to the royal prerogative powers of the British monarchy. Other scholarship views the Clause as granting only the power to execute the law. A third approach interprets the Clause even more minimally, as a mere designation provision, not granting power at all but making clear that there would be a singular chief magistrate called the president, with power flowing from enumerations such as the Commander in Chief, Appointments, Pardons, and Treaty Clauses. This Article comprehensively reviews the British and American legal, political, and ideological backgrounds relevant to understanding the Executive Power Clause; carefully reads the text in light of interpretive conventions used in the founding era and extrinsic evidence from the Philadelphia Convention and state ratification debates; and critically evaluates the current scholarship. The wide divergence among modern scholars about the meaning of the Executive Power Clause is found to reflect real ambiguity in the text of the Constitution and the historical records. Unlike many previous scholars, who have settled on their preferred reading as the clearly correct choice, I find that there are several plausible original public meanings of the Executive Power Clause. When the new government under the Constitution became operational in 1789, the ambiguous Clause was sitting there ready to become a site of contestation. That said, the text and history I review here support at least one firm conclusion: by far the least plausible original meaning of the Executive Power Clause is the one which sees it as granting an undefined amount of British royal prerogative power to the president.

Download the article from SSRN at the link.

Resnik on Seeing "The Courts": Managerial Judges, Empty Courtrooms, Chaotic Courthouses, and Judicial Legitimacy from the 1980s to the 2020s @YaleLawSch

Judith Resnik, Yale Law School, has published Seeing "The Courts": Managerial Judges, Empty Courtrooms, Chaotic Courthouses, and Judicial Legitimacy from the 1980s to the 2020s as Yale Law School Public Law Research Public Law Research Paper No. 43.2. Here is the abstract.

From some perspectives, litigation looks vibrant, with front-page coverage of the U.S. Supreme Court’s reconsideration of its precedents and high-profile civil and criminal lawsuits against government officials. Moreover, since the 1980s, the federal judiciary has had an ambitious building program producing dozens of courthouses designed to exemplify the “solemnity, stability, integrity, rigor, and fairness” of adjudication. Such edifices underscore courts’ place in narrations of the United States. Yet the challenges of legitimating government authority, of which judicial actions are a part, have become all the more acute since Managerial Judges was published forty years ago. The world of ordinary litigation is troubled and shrinking, and the disjuncture between judges’ stated goals and their practices has become vivid. Aside from a few aggregations of tens of thousands of cases in “mega” multidistrict litigations (MDLs), filings in the federal courts have flattened and declined to about 240,000 civil cases per year. At both trial and appellate levels, significant percentages of litigants proceed without lawyers; about one-quarter of civil filings and about half of the appeals come from individuals representing themselves. Most circuits have embraced norms of limiting oral arguments and of issuing eighty-five percent of their decisions as non-precedential rulings. Those practices, rendering their work less visible, parallel the lack of transparency of the many managerial decisions at the trial level, where hours on the bench are down to about 320 per year and fewer than one of 100 civil lawsuits ends with a trial. All the while, federal courts remain relatively rich in resources and staff as compared to both state and tribal courts and to agencies. Even as filings likewise have fallen, state courts continue to have tens of millions more cases and larger segments of their dockets in which lawyerless litigants are the norm. Many judges are ill-equipped to respond to disputants with limited resources, often in family conflicts or as debtors and tenants who face resourced adversaries. Further, as the focus shifts to web-based resolution mechanisms, little attention is paid to its privatizing features. Providers of online dispute resolution (ODR) have not seen enabling public access as part of the packet of services to promote. Thus, courtroom-based adjudication is becoming increasingly rare. One possibility is that this form of statecraft is failing and the time has come to abandon its aspirations. Yet, as an heir to a political tradition grounded in the due process ideology of governments obligated to make decisions that are not arbitrary, I am not willing to give up the public service of adjudication and on courts as one of many venues to put into practice commitments of equal treatment. To legitimate decisions, judges need to preside over cases in which litigants are able to provide adequate information. This article analyzes the federal judiciary’s function as an adjudicatory institution and as an “agency” with its own programmatic agendas. During the last few decades, the federal judiciary has successfully lobbied Congress to create and finance a host of projects, including authorizing judges to centralize cases through multidistrict litigation, to select and appoint adjunct magistrate and bankruptcy judges, and to oversee the design of dozens of new courthouses. Since the 1990s, the federal judiciary has also gathered statistics on and repeatedly raised concerns about the number of self-represented litigants. Yet the judiciary has not generated structural responses, such as a national database on the many district court “pro se” projects and new mechanisms to enlist lawyering and other resources, to enable judges to make principled decisions in those cases. Likewise, while the docket is heavily dependent on the cross-litigant subsidies generated through class actions and MDLs, judges have not crafted methods to mobilize the lawyering resources in those configurations to support litigants within or to shape a robust method of overseeing implementation of the resolutions reached. To date, the federal judiciary has not instituted a mechanism to buffer against allocating adjudicatory resources largely based on litigants’ economic wherewithal. Moreover, the federal judiciary, entwined with state and tribal court adjudication, has not joined its counterparts in pressing Congress to provide new streams of funding for all kinds of courts and the people using them. Navigating the political economy of courts producing a crisis of legitimacy requires reorienting the “process due” by revising statutes, doctrine, practices, and rules to respond to an eclectic set of claimants seeking to be heard. “Management” of the people in court does not suffice.

Download the article from SSRN at the link.

Shanks-Dumont on The Aesthetics is International Criminal Law

Daimeon Shanks-Dumont, University of California, Berkeley, is publishing The Aesthetics is International Criminal Law in volume 37 of the Temple International and Comparative Law Journal. Here is the abstract.

Randle DeFalco’s provocative book, Invisible Atrocities, argues that aesthetic perceptions condition what is considered an international crime through the deployment of a social constructivist model of norm development. However, DeFalco forecloses the more radical implications of his work by positing that aesthetic considerations remain anterior to international criminal law’s (ICL) identity; that is, the ontological status of law is understood by reference to Lon Fuller’s analytical essentialism, which insists that for law to be “law” it must conform to eight formal criteria of legality — significant deviation from these parameters and law is no longer “law,” but rather “some other, nonlegal form of rulemaking or social ordering.” The critical potential of Invisible Atrocities is frustrated because to flatten and de-historicize something like ICL (or any legal regime, for that matter), as Fuller does with his eight criteria, is to reify law as an ideal type that contradicts the hermeneutic approach to norm creation implied by the social constructivism model utilized in the rest of the book. This friendly critique of Defalco’s conceptualization of law’s identity follows the work of Pierre Schlag to argue that aesthetics are not merely an influence on law, but rather are constituted as law. This hermeneutic understanding of law as a historically-situated, contingent, and inter-subjective process of meaning creation opens a whole field of totalizing ICL critique, not least of which would be an unmasking of the ideological functions that aesthetics play in determining what (and more importantly, who) are subject to ICL’s attentions. Simply put, if aesthetic considerations are something outside of law, then legal relations that are determined in and through aesthetics may be concealed, but if aesthetics is law, no such closure is possible. Unmasking law’s aesthetic identity forces the issue. In asking why law’s aesthetic identity is used to include/exclude, define/underdetermine, proscribe/condone, or otherwise determine social reality (cui bono?), many other questions — such as the ontological status of “law” as an abstract analytical concept — drop away as rationally insoluble or otherwise uninteresting.

Download the article from SSRN at the link.

Bellin on Murder on the Hearsay Trail @BellinJ @WMLawSchool @TAMU_Law_Review

Jeffrey Bellin, William & Mary Law School, is publishing Murder on the Hearsay Trail in the Texas A&M Law Review. Here is the abstract.

Judges, lawyers, and law students struggle to apply American evidence law’s most distinctive feature – the hearsay prohibition. The problem is that hearsay is difficult to master and astonishingly dull. At the same time, hearsay evidence is ubiquitous and important. Every litigator has a story about a judge’s eccentric hearsay rulings; mine is the trial judge who waved his hand dismissively at hearsay objections, letting witnesses answer on the grounds that, “I want to hear it.” And the case law is littered with appellate opinions scolding trial judges for erroneous hearsay rulings while introducing errors of their own. That is just the visible aspect of the problem. Lawyers are no better at hearsay than judges. Yet for every trial, there are countless non-trial resolutions where no evidence is presented, much less ruled upon. When hearsay is involved, parties evaluate the wisdom of these dispositions (dismissals, settlements, and guilty pleas) with only a rough understanding of the evidence that would be admissible at trial. This Article attempts to remedy this unsettling state of affairs. First, to get around the dullness problem, it weaves hearsay analysis into a mystery in the spirit of a John Grisham novel. The fictional tale of intrigue and murder twists and turns while dropping clues that ultimately solve the case. Then, the Article tackles hearsay’s complexity by solving the evidentiary puzzles inherent in those clues, which represent key inflexion points in the doctrine. By explaining which clues can be presented to the jury, and how those answers evolved over time, the Article paints the modern American hearsay landscape and rehabilitates its (unfairly) reviled rules. Finally, the Article explains why – if we are going to have a hearsay prohibition – this is as good as it gets. Contrary to the complaints of a legion of critics, the current hearsay definition is the simplest of the alternatives and offers the best results.

Download the article from SSRN at the link.

Lind on Zensur und Fiktion: Von Fake News bis fiktionale Literatur (Censorship and Fiction: From Fake News to Fictional Literature)

Hans Lind, Yale University, has published Zensur und Fiktion: Von Fake News bis fiktionale Literatur (Censorship and Fiction: From Fake News to Fictional Literature) as Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2024-15. Here is the abstract.

German Abstract: Der Beitrag beschäftigt sich mit der Zensur informationeller Falschnachrichten im westlichen Kulturkreis, einschließlich bewusster Lügen und Fake News. Weiterhin werden fiktionale literarische Werke und performative Kunstformen thematisiert – von Romanverbotsverfahren bis zur rechtlichen Sanktionierung von Rap und anderen autofiktionalen Literaturformen.

 

English Abstract: The handbook entry will address the censorship of counterfactual communication, including intentional lies and fake news. Furthermore, fictional literary works and performative art forms will be addressed, from banned books to the judicial sanctioning of rap/hip-hop and other auto-fictional forms of literature.

Download the essay from SSRN at the link.

CFP: Gikii 2024: Gikii's Existential Threat, Or Nerding Out-As-A-Service?

 From Michael Veale, Associate Professor of Law, University College London:

Please see below or at https://www.gikii.org/gikii-2024-call-for-papers/ for the CFP for Gikii London, 4-5 September 2024 at the Faculty of Laws, University College London.

Gikii’s Existential Threat, or Nerding Out–As–A–Service?

As the most powerful technologies companies in the world reorient their whole business models to automated fan-fiction production, we invite you to Gikii 2024, held at the Faculty of Laws, University College London 4-5 September 2024.

Gikii needs you. We are living in a world where most, if not all, previous Gikii papers over the last two decades are proving themselves more prediction than speculation. The arguable purpose of Gikii, using nerd culture to reason about the present and future of technology law and policy, is existentially threatened by contemporary events. Facebook is a zombie wasteland with users worshipping new shrimp-covered deities. Google has transformed from a neutral-claiming search engine to robotically telling users to drink their own urine. Far from learning the lessons from dystopian sci-fi blockbusters, today’s AI companies are actively and explicitly using them as blueprints for design.

Gikii cannot operate under these conditions. Unless you prove us wrong.

We welcome papers (for 10-12 minute presentations) at the interface/nexus/crossroads/hellportal between law, (un)popular culture and technology. The best Gikii presentations make you laugh, then make you think. Your abstract should be concise, flavourfilled and brimming with energy, bearing in mind the short presentation format Gikii favours. You can see previous presentation titles on the Gikii website for ideas.

The deadline is Friday 28 June, so we aim to give you good time to make travel arrangements.

Submit your abstract here: https://cloud.michae.lv/apps/forms/s/rSWScx7xDFeQ5QKRkYXgwMZr

 

Charles on Time and Tradition in Second Amendment Law @JacobDCharles @PeppLaw @FordhamULJ

Jacob D. Charles, Pepperdine University School of Law, has published Time and Tradition in Second Amendment Law at 51 Fordham Urban Law Journal 259 (2023). Here is the abstract.

The Supreme Court’s Second Amendment is a chronological chameleon. For one purpose, its meaning is fixed in the firmament of the Founding era. For another purpose, its language is anchored to the understanding of living Americans. One clause gets projected backwards, traced to antecedents in the 17th century. An adjacent clause gets projected forward, evolving alongside dynamic consumer preferences. Still other words or phrases are cloaked in meaning from different temporal epochs — the Long 18th Century, the Antebellum South, the Reconstruction Era, and even the Reagan Revolution. This oscillation remains unexplained in the Justices’ opinions. Why so many incompatible timelines? Only Χρόνος knows. In New York State Rifle & Pistol Association v. Bruen, the Supreme Court announced a new past-bound Second Amendment test. There, the Court said that no gun regulation can be upheld unless it has an analogue in the distant past — unless, that is, “the government can demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” That historical test masks the ways that the Supreme Court’s own pronouncements refer different questions to different time periods. Lower court judges have drawn attention to how the Court’s new guidance creates a “logical inconsistency” in the time that matters and fuels “anachronism” in the Court’s doctrine. They have recognized, that is, that time takes on supreme importance, but that the relevant temporal frame is not uniform across the questions pervading Second Amendment law. Neither the Court nor commentators give any reason to refer some questions to the Founding generation and others to Gen X. This brief Essay explores the inconsistency in the current doctrine. Part I charts the different questions that the Supreme Court has divided up among different temporal epochs. Part II begins to think through how the Court could redirect or justify its practice, either by referring all questions to the same time period or explaining why the existing diversity makes sense. Whatever the pathway, the Court should justify its doctrinal treatment of time.

Download the essay from SSRN at the link.