Now Available: Peter Charles Hoffer: The Supreme Court Footnote: A Surprising History (NYU Press, 2024) @NYUpress

Now available: Peter Charles Hoffer, The Supreme Court Footnote: A Surprising History (NYU Press, 2024). Here from the publisher's website is a description of the book's contents.

In May 2022, a seismic legal event occurred as the draft majority opinion in Dobbs v. Jackson Women’s Health was leaked. The majority aimed to eliminate constitutional protection for abortion. Amidst the fervor, an unnoticed detail emerged: over 140 footnotes accompanied the majority opinion and dissent. These unassuming annotations held immense significance, unveiling justices’ beliefs about the Constitution’s essence, highlighting their controversial reasoning, and laying bare the vastly different interpretations of the role of Supreme Court Justice. The Supreme Court Footnote offers a study of the evolution of footnotes in US Supreme Court opinions and how they add to our constitutional understanding. Through a comprehensive analysis, Peter Charles Hoffer argues that as justices alter the course of history via their decisions, they import their own understandings of it through the footnotes. The book showcases how the role of the footnote within Supreme Court opinions has evolved, beginning with one of the first cases in the history of the court, Chisholm v. Georgia in 1792 (a case concerning federalism vs. states’ rights) and ending with the landmark Dobbs v. Jackson case in 2022. Along the way, Hoffer demonstrates how the footnotes within these decisions reflect the changing role of the Supreme Court Justice, along with how interpretations of the constitution have transformed over time. At once surprising and revealing, The Supreme Court Footnote proves that what appears below the line is not only a unique window into the history of constitutional law but also a source of insight as to how the court will act going forward.

Newly Published: Newman on Inferior Courts: The History of the Existing and Former Federal Trial and Appellate Courts of the United States, 1789-2024 (Hein, 2024) @HeinOnline

 Newly published:

Jon O. Newman, Inferior Courts: The History of the Existing and Former Federal Trial and Appellate Courts of the United States, 1789-2024 (Hein, 2024).

Here from the publisher's website is a description of the book's contents.

While the Constitution places the judicial power in “one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish,” it is essential to understand that “inferior” denotes their rank below the Supreme Court—not their importance or quality.

This book, illustrating the fascinating 235-year history of America’s Federal Trial and Appellate Courts, is the first book to offer a comprehensive, court-by-court and state-by-state account of these vital institutions. Unlike other books that analyze court decisions, this book meticulously details and analyzes:

• The creation and evolution of federal trial and appellate courts from 1789 to 2024
• The increase in the number of judges and the development of court jurisdiction
• Former federal courts, including those abolished or merged into existing structures
• Federal statutes affecting the courts

Explore the rich statutory history of courts both still in existence and those that have been abolished. Sourced from the 296 volumes of the United States Statutes at Large, federal statutes in the United States Code, and the federal rules of civil, criminal, and appellate procedure, this book is a necessity for anyone interested in the history of the federal courts.

Plambeck on The Constitutional History of the Free Elections Clause @unc_law

Charles Plambeck, University of North Carolina School of Law, is publishing The Constitutional History of the Free Elections Clause in volume 103 of the North Carolina Law Review. Here is the abstract.

Many state constitutions contain a Free Elections Clause that requires that "elections ought to be free." The function of these clauses is to prevent disenfranchisement through gerrymandering and other tactics. This paper traces the origins of this phrase to the constitutional settlement of 1688, and before that to the First Statute of Westminster of 1275. The 750 year history shows the vitality of the clause to present day voting rights contests.

Download the article from SSRN at the link.

Call For Contributions, Research Handbook on Gender, History, and Law, Edward Elgar

 Call For Contributions

Call for Contributions for Research Handbook on Gender, History, and Law (Edward Elgar)

As part of Edward Elgar's Research Handbooks in Gender and Law Series edited by Robin West and Alexander Maine, this volume on Gender, History, and Law aims to bring together critical and thought-provoking contributions on the most pressing topics, issues and approaches within legal and gender history. The collection aims to set the agenda in the field and serve as the most important and up-to-date point of reference for researchers as well as students, policy-makers, and lawmakers. 

We are aiming for about 30 essays of 8,000-10,000 words by scholars of legal and gender history on any topic that fits within the book's broad themes, including but not limited to gendered history within legal categories such as family, criminal law and international law, on particular historical periods, on specialist topics such as capitalism and labor, sexuality, race, identity, citizenship, the legal profession and courts, and on sources and methodology. 

The Research Handbook will be published in English, but we seek to provide a broad global perspective. To fulfill its aim of providing cross-cutting scholarship in law and history, each contribution should explore perspectives on what it means to do legal history in the chosen area in the context of the author's own approach.

Manuscripts must be original and not published elsewhere, and are due to the editors by July 1, 2025. Publication is anticipated to be in the summer of 2026.

Please submit abstracts by September 30, 2024. For questions and to submit abstracts, please feel free to reach out to any of us.

Rosemary Auchmuty (r.auchmuty@reading.ac.uk)

Caroline Derry (caroline.derry@open.ac.uk)

Danaya Wright (wrightdc@law.ufl.edu) 

Steilen on Magna Carta and the Origins of Legislative Power @MJSteilen @UBSchoolofLaw

Matthew J. Steilen, SUNY Buffalo School of Law, has published Magna Carta and the Origins of Legislative Power as a University at Buffalo School of Law Legal Studies Research Paper. Here is the abstract.

This article argues that Magna Carta has a central place in the development of debate and deliberative politics in parliament. Its focus is chapter 12 of the Magna Carta of 1215, in which the king promised not to levy certain taxes “unless by the common counsel of our realm.” Conventionally these words are interpreted to require consent before levying a tax. Against this view, the article argues that “common counsel” meant public deliberation or debate. The source of these ideas was the cathedral schools, the forerunners of the first European universities. Evidence for this “school theory” of common counsel is presented in two parts. First is a study of the career of Stephen Langton, who taught theology in the cathedral schools of Paris. Langton came to England in 1213 to serve as archbishop of Canterbury, and period sources suggest he played a central role in encouraging dissident barons and negotiating Magna Carta. The article addresses scholarly questions about the reliability of these sources. The second part is a study of London, its government, and political culture. The article argues that London’s political traditions provided a fertile environment for Langton’s advice to the dissident barons about how to pursue their grievances against King John. Finally, the article presents an argument against the conventional interpretation of “common counsel” as a requirement of consent, addressing the meaning of the relevant Latin terms, usage in Magna Carta and related documents, law and practice relating to taxation, theories of kingship, and the meaning of “parliament.”

Download the article from SSRN at the link.

Houghton, Murray, and O'Donoghue on Kenstituent Power: An Exploration of Feminist Constitutional Change in Greta Gerwig's Barbie @ruth_houghton @NCLLawSchool @aoifemod @BarbieFemCon @qubschooloflaw

Ruth Houghton and C. R. G. Murray, both of Newcastle Law School, and Aoife O'Donoghue, Queen's University, Belfast School of Law, are publishing Kenstituent Power: An Exploration of Feminist Constitutional Change in Greta Gerwig’s Barbie in Feminist Theory (2024). Here is the abstract.

Greta Gerwig’s Barbie explores the influence of childhood dream worlds and toys over adult life, and the singular importance of a toy which represents an empowered woman. But this story plays out against the backdrop of deep societal challenges. That the subject matter of the film is light does not detract from its cultural significance; it enhances its reach and thereby its influence. Constitutional change, property, dissent, inequality and revolution are not the B-plot of the film, they suffuse every scene and motivate its major characters. In this article we explore the significance of BarbieLand as a supposed embodiment of a feminist utopia and the extent to which Gerwig is confronting viewers with difficult questions about authority and just governance in the RealWorld.

Download the article from SSRN at the link.

Crosswell on The Common Law and the Wealth of Nations @bakermckenzie

Stephen Crosswell, Baker McKenzie, has published The common law and Adam Smith's Wealth of Nations. Here is the abstract.

Understanding the relative effectiveness of common law and legislation led systems is plainly relevant as the UK unshackles itself from the regulatory system of the European Union and as discussions take place on Hong Kong’s future as a common law jurisdiction to service China’s financial markets and international trade. However, there are much bigger shifts in the world that move this issue to a level of fundamental importance. Adam Smith developed a theory of the ‘four-stage’ advancement of society - from hunter-gatherer to herder, then agricultural and finally commercial society. He developed this theory at a time when England had substantially transitioned out of the agricultural stage, through what became known as the Agricultural Revolution, into its role as the seat of the Industrial Revolution and the leading commercial centre in the world. He, and other jurists of the time, saw the debate about whether legislation could effectively drive that transition as the central question of their time, the answer to which would, in the long run, affect the fate of nations and Empire. They had a clear view on this, informed by the study of thousands of years of human history. For them, the common law was vastly superior. This article examines the debate that took place on these issues at the time that England was going through the Industrial Revolution, the Benthamite revolution that followed and the modern basket of rights that obfuscate the key question that policy-makers should be asking: if the common law was so successful in driving the Industrial Revolution, what confidence can we have in a legislated approach to the Technology Revolution?

Download the article from SSRN at the link.

Webb on The Lost History of Judicial Restraint @CathULaw @YaleLawSch @NotreDameLRev

Derek Webb, Yale Law School, is publishing The Lost History of Judicial Restraint in volume 100 of the Notre Dame Law Review. Here is the abstract.

This article attempts to answer a question of great contemporary significance – what role courts should play in our democracy. Specifically, it attempts to answer the question of what standard of review courts should use in deciding constitutional cases. It does so by recovering a lost history of how American jurists conceived that role from the American founding to the close of the nineteenth century. It draws upon a voluminous and diverse array of nineteenth century treatises, legal dictionaries, encyclopedias, case books, and manuals of federal practice, on the one hand, most of which have never before been examined, and federal and state supreme court cases in all fifty states on the other, to show, contra prominent legal historians and many leading contemporary originalists, that by the close of the nineteenth century, there was an overwhelming consensus in favor of the presumption of constitutionality, clear error rule, and reasonable doubt standard. James Bradley Thayer, who popularized those rules and gave them a unique theoretical justification in his classic 1893 article “The Origin and Scope of the American Doctrine of Constitutional Law,” did not just invent those rules. He was not, as Learned Hand put it, and many of his critics have subsequently agreed, the “prophet of a new approach.” Rather, he was just one – albeit distinguished and influential – member of a vast yet now forgotten chorus of treatise writers and jurists throughout the country, eventually in all fifty states, who defended a cautious, deferential, and restrained approach to invalidating the acts of democratic bodies. My thesis is that over the course of America’s first century, there emerged a much broader and richer historical consensus around judicial restraint than the advocates or critics of restraint have ever acknowledged. From its earliest origins in the transatlantic constitution, and through piecemeal legal practice in state and federal courts, before and after the creation of the Constitution, the “Thayerian” “rules of administration” associated with judicial restraint were eventually adopted by both the U.S. Supreme Court and all fifty state supreme courts in the country. This has implications not only for legal history but for understanding the scope of the judicial power and duty today. By attempting to recapture this mostly "lost history of judicial restraint," I argue that during America’s first century, through the “discussions” in legal treatises and the “adjudications” in all the country’s apex supreme courts, all pointing overwhelmingly and uniformly in the direction of restraint, the Constitution’s standard of review, and the very meaning of "the judicial power" in Article III, appears to have been fixed or “liquidated" during America's first century.

Download the article from SSRN at the link.

Howe on For a Justice-To-Come: Milo Rau's Utopian Realism

Steven Howe, University of Lucerne, has published For a Justice-to-Come: Milo Rau’s Utopian Realism at 60 Seminar 108 (May 2024). Here is the abstract.

One of the most prolific political theatre makers in Europe today, Milo Rau is known for his commitment to a realist art of possibility—a "Möglichkeitsrealismus," as he defines it, devoted to opening space for envisioning possible alternatives to the status quo. Drawing on Ernst Bloch's writings on utopia, this article argues for an understanding of Rau's artistic practice as a kind of "concrete utopianism" that materially engages the world so as to imagine—and enact—new possibilities for improvement and transformation. Via a reading of Rau's Kongo Tribunal (2015), an attempt is made to show how, by staging the tribunal in the here and now of performance, the artist seeks to disclose the real but not yet realized possibilities available in the present, giving form to an alternative institutionality—and an alternative practice of justice—that is made fully graspable in the imagination and in reality. As a material act of imagining otherwise, the Kongo Tribunal refuses the closure of the present, inviting spectators to step back and recognize the institutionalized forms of law and justice not as fixed but variable—and thus (still) open to change.

Henderson on Zorro: Everyperson's Moral Vigilante @UofOklahomaLaw @OSJCrimLaw

Stephen E. Henderson, University of Oklahoma College of Law, is publishing Zorro: Everyperson's Moral Vigilante in the Ohio State Journal of Criminal Law. Here is the abstract.

Zorro (Amazon 2024) is hundreds of years in the making -- from medieval ballads of Robin Hood; to the fiction of Alexandre Dumas, Baroness Orczy, and the legend of Mexican bandits; to the Johnston McCulley 1919 original; to comics like Daredevil and Batman; to scores of Zorro derivatives from the minds of McCulley, Walt Disney, and many others. At this point, it would be impossible to identify and duly credit the countless inspirations that together form this early-California vigilante. But such rich heritage might provide something more than literature and entertainment: if there is an everyperson's conception of a moral vigilante, Zorro might have transfigured into it by now. Perhaps it is thus possible to back into a philosophically defensible construct of moral vigilantism from this popular art, or perhaps it is that very genesis that provides its own legitimacy. Whichever the case, this article serves both to celebrate the story -- both the original McCulley work and the most recent television derivative -- and to begin its deconstruction. After centuries of refinement, Zorro as moral vigilante is a construct worthy of literary, philosophic, and legal attention.

Download the article from SSRN at the link.

Grajzl and Murrell on From Status to Contract? A Macrohistory from Early-Modern English Caselaw and Print Culture @wlunews

Peter Grajzl, Washington and Lee University, Department of Economics; CESifo, and Peter Murrell, University of Maryland, Department of Economics, have published From Status to Contract? A Macrohistory from Early-Modern English Caselaw and Print Culture as CESifo Working Paper No. 11246. Here is the abstract.

Most development models emphasize a growth in the scope of individual choice as the law becomes impartial, relevant to all. An early expression of this conceptualization appeared in the 19th century, when Henry Maine coined his celebrated dictum that progressive societies move from status to contract. We conduct a macro-historical quantitative inquiry into Maine's dictum using corpora on 16th- to 18th-century caselaw and print culture. Upon conceptualizing the notions of contract and status, we train word embeddings on each corpus and produce time series of emphases on contract, status, and contract versus status. Only caselaw exhibits an increasing emphasis on contract versus status, and even that trend is discernible only before the Civil War. After 1660 in caselaw, emphases on both contract and status increase, with no trend in contract versus status. After 1660, caselaw trends reflect the increasing importance of equity compared to common-law. In print culture, religion consistently emphasizes contract over status, while politics exhibits a downward-trending emphasis on contract versus status. VAR estimates reveal that the applicable ideas in caselaw and print culture coevolved.

Download the article from SSRN at the link.

Rabanos on Going Back to (Law as) Fact. Some Remarks on Olivecrona, Scandinavian Legal Realism, and Legal Notions as Hollow Words @julesrabanos @Univerzitet_BG

Julieta A. Rabanos, University of Belgrade, has published Back to (Law as) Fact. Some Remarks on Olivecrona, Scandinavian Legal Realism, and Legal Notions as Hollow Words at Materiali per una storica della cultura giuridica 205-232 (1) 2023. Here is the abstract.

The aim of this paper is to critically reconsider some of the main tenets underlying Karl Olivecrona’s works. The first two sections are devoted to a brief reconstruction of his position on methodology for the study of legal phenomena, including the endorsement of philosophical realism and the enterprise of demystifying legal language through linguistic therapy (§ 2), as well as his particular conception of legal notions as hollow words (§ 3). I will then provide a brief analysis of a central legal concept – that of “authorityµ – to show how Olivecrona’s methodological framework can be applied (§ 4). The last two sections are devoted to the analysis and evaluation of three possible criticisms of Olivecrona’s claims as a legal realist (§ 5) and some brief concluding remarks on the usefulness of Olivecrona’s approach for contemporary legal philosophy (§ 6).

Download the article from SSRN at the link.

Sevel on Historical Origins of Raz's Legal Philosophy @MichaelSevel @SydneyLawSchool

Michael Sevel, University of Sydney Faculty of Law, has published Historical Origins of Raz's Legal Philosophy. Here is the abstract.

Joseph Raz (1939-2022) was one of the most influential philosophers of law of the last half century. But the reception of his legal philosophy has been shaped by relatively narrow debates about the nature of authority and the commitments of Hartian legal positivism. A more comprehensive assessment of his achievements begins by considering the complex historical origins of his legal philosophy. I consider three distinct historical strands relevant to understanding many of the central features and the general framework of his philosophy of law: developments in the mid-twentieth century in moral, political, and legal philosophy regarding the concept of a reason for action, of the nature of political authority, and the systemic character of positive law, respectively. Raz’s legal philosophy can profitably be viewed as a novel convergence and synthesis of these many developments and influences, as an ambitious attempt to develop a systemic theory of positive law in terms of the concept of authority which is in turn explained from the perspective of practical reason.

Download the article from SSRN at the link.

Ferguson on The Ciceronian Origins of American Law and Constitutionalism @jackferguson100 @HarvardJLPP @NDLaw

Jack Ferguson, Notre Dame Law School, is publishing The Ciceronian Origins of American Law and Constitutionalism in volume 48 of the Harvard Journal of Law & Public Policy. Here is the abstract.

In his treatise on American constitutionalism, John Adams wrote that “as all the ages of the world have not produced a greater statesman and philosopher united than Cicero, his authority should have great weight.” This Article considers the Founding generation’s intellectual debt to Marcus Tullius Cicero, the classical Roman statesman-philosopher, and what it tells us about how the Founders approached law and constitutionalism. There are ongoing scholarly efforts to recover the general law tradition and classical lawyering of the eighteenth century, but as of yet, no account has been given of Cicero’s prominent role in that era. This Article gives that account. This Article first examines Cicero’s legal thought and how it shaped notions of natural law and the law of nations (or general law) in the seventeenth and eighteenth centuries. Grotius, Pufendorf, Coke, Vattel, Blackstone, Lord Mansfield, James Wilson, Joseph Story, and others grounded their work in Cicero’s writings on law. As a case study, this Article shows how Cicero contributed to the formation of American judicial review. Cicero’s interpretive principles dealing with hierarchies of law were adopted by Federalist No. 78, Alexander Hamilton’s prominent defense of judicial review. This Article then considers Cicero’s work on republicanism and constitutionalism. The Founding generation’s concepts of popular sovereignty, mixed government, checks and balances, and the rule of law can be traced back to Cicero, who was the primary expositor of the classical republican tradition. Finally, this Article evaluates Cicero’s influence on eighteenth-century notions of the ideal executive. As a constitutional theorist, Cicero laid the conceptual groundwork for Hamilton’s unitary energetic executive. And by his historical example as consul of Rome, Cicero inspired Hamilton’s efforts in the Washington administration to put down the Whiskey Rebellion of 1794, an early historical precedent on insurrection and the domestic use of military force. Cicero influenced the Founders’ work in numerous ways. To the extent their law is ours today, his relevance endures.

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.

Legal Imaginaries Across the Asia-Pacific: Vernacular Law and Literatures: September 5, 2024: Draft Program

Legal Imaginaries across the Asia-Pacific: Vernacular laws and literatures: September 5, 2024, at the ANU College of Law.

Download the program here. 

Here is a description of the event.

The Asia-Pacific is our region – important, volatile and diverse. Although there are many shared similarities in law and culture – including not least the history and legacy of colonialism – there are also telling differences. In recent years the law and literature movement has articulated the relevance of a study of culture in understanding law, and of the power of literary and other creative practices to more deeply engage with the legal history of particular places, to critique their legacy, and to imagine new futures. Postcolonialism, Afro-Futurism, Legal Imaginaries and Prefigurative Law are names that articulate this trend.

Particularly when questions of the relationship between law and history on the one hand, and law’s capacity to respond to the crises of the 21st century on the other, are urgent, linking law and literature in these ways is a powerful and creative tool for legal education and reform. It offers the potential to enrich the work of students of law, scholars, legal experts, and the wider public.

Yet until recently, the interdisciplinary approach of law and literature remains largely wedded to a traditional Western literary canon. But there are new trends offering enormous promise for enriching the plurality and specificity of law and literature, including work on Hong Kong, Singapore, India; not to mention a variety of scholars engaging with indigenous narrative and legal traditions in Australia, and on the west coast of the American continent.

The workshop is part of steps to build a new network that targets a specific geographic constellation and identifies, through the language of ‘the imaginary’ and ‘vernacular’, a specific set of theoretical resources. ‘Laws and literatures’ both frames the endeavour in relation to an established field and pluralises it in significant ways.

The workshop would be of interest to academics and students, particularly those in literature, law and the humanities, legal theory, and postcolonial studies. 

It will feature new work from prominent and emerging scholars working in law and literature from right across the region -- from Australia, Aoteoroa, the Pacific and Mexico to Hong Kong, Singapore, and Indonesia – showcasing remarkable new directions with a common geographic and theoretical orientation.