Leclair on L'évolution constitutionnelle de 1760 à 1867: progression pour les uns (Canadiens français) et regression pour les autres (peoples autochtones)

Jean Leclair, University of Montreal Faculty of Law, has published L'évolution constitutionnelle de 1760 à 1867: progression pour les uns (Canadiens français) et régression pour les autres (peuples autochtones) [Constitutional evolution from 1760 to 1867: progress for some (French Canadians) and regression for others (Aboriginal peoples)] as a University of Montreal Faculty of Law Research Paper. Here is the abstract.

French abstract: Ce texte vise à présenter à un large public, et non uniquement aux experts, un récit de l’évolution constitutionnelle du Canada, et plus précisément du Québec, avant l’avènement de la fédération canadienne. Le sort des peuples autochtones dans le territoire qui deviendra le Québec est également abordé.

 

English abstract: This manuscript aims to provide a broad audience, not just experts, with an account of the constitutional evolution of Canada, and more specifically Quebec, before the advent of the Canadian federation in 1867. The fate of the aboriginal peoples in the territory that was to become Quebec is also addressed.

Download the paper from SSRN at the link.

Stanley-Ryan on Ka mua, ka Muri: He Whakaputanga, Concealed Indigenous Histories, and the Making of International Law @ashstanleyryan

Ash Stanley-Ryan, Graduate Institute of International and Development Studies (IHEID); Victoria University of Wellington; Te Herenga Waka - Faculty of Law, is publishing Ka mua, ka Muri: He Whakaputanga, Concealed Indigenous Histories, and the Making of International Law in Law & History. Here is the abstract.

This article examines how our understanding of international law is harmed by the systematic erasure of indigenous experiences and histories. He Whakaputanga o te Rangatiratanga o Nu Tireni is used as a case study. The article first considers several methodological considerations for legal historians. A theoretical approach is constructed which centres Māori voices and Te Reo Māori, and accepts that history is both political and contingent. In the next section, two parallel histories are detailed: pākehā stories of he whakaputanga as act to secure Imperial interests; and Māori recollections of he whakaputanga as an affirmation of independence, in response to an ever-more-intrusive world. The two histories are then considered through the lenses of jurisdictional encounter and international legal reproduction. These lenses show how history and law have undertaken a demarcating exercise, concealing Māori histories and removing he whakaputanga from legal relevance. This process has harmed international law, because it legitimises imperialism and hides law’s contingent nature. The article closes by recalling Moana Jackson’s call for ‘honesty about the misremembered stories and the foresight to see where different stories might lead’. NB: typos, including the use of the term "te re rangatira" rather than "te rangatiratanga", are not corrected in this preprint.

Download the article from SSRN at the link.

Sprigman on The Jeffersonian Model of U.S. Cultural Property Law @CJSprigman @nyulaw

Christopher Jon Sprigman, NYU School of Law; NYU Engelberg Center on Innovation Law & Policy, is publishing The Jeffersonian Model of U.S. Cultural Property Law Forthcoming 2024, in Tutela & Restauro (the annual journal of the Soprintendenza archeologia belle arti e paesaggio per la città metropolitana di Firenze e le province di Pistoia e Prato). Here is the abstract.

This article, the published version of a closing keynote talk given at a conference on Italian cultural heritage and cultural property law held in 2022 at the University of Florence, describes the loosely-constituted, largely uncodified "Jeffersonian" model of cultural heritage law that operates in the U.S. The Jeffersonian model understands cultural heritage not primarily as a thing to be protected, but as a thing to be used. This model is concerned primarily with the interests of the living – specifically, our collective interest in producing today’s culture, drawing on the past but also reworking it in ways that may preserve or may destabilize the past. This model is largely indifferent to and perhaps in practice even hostile to cultural particularism and to the stability of any particular culture. The role of IP rights, in this model, is not to preserve old culture. It is to encourage people to make new culture. The differences between the Jeffersonian model and the more protectionist cultural heritage and cultural property models that hold sway in Italy and across Europe grow out of deep differences in how different cultures understand what leads to human flourishing. The European model situates individuals within a particular culture; it is based on the notion that some well-defined group identity is central to an individual’s flourishing. On the other hand, the Jeffersonian model is both more cosmopolitan and more present-focused. The logic of these models rests on differing beliefs about the relative importance of individual autonomy versus group identity, and about the virtues of more rapid cultural change versus relative cultural stability.

Download the essay from SSRN at the link.

Bruyas and Perrin on What's Law Got to Do With It? Language and Gender Equality in Law

Pierrick Bruyas, University of Strasbourg, and Caroline Perrin, Utrecht University, have published What's Law Got to Do with it? Language and Gender Equality in Law. Here is the abstract.

Certain languages require speakers to grammatically acknowledge and indicate gender, while others do not impose such requirements. Recent research indicates that this linguistic distinction correlates with gender-based variations in economic outcomes. This study delves into the connection between gender marking in language and gender equality in law. Utilising the ‘Women, Business and the Law’ database, our findings reveal a positive association between the degree of gender marking in language and the legal rights granted to women. Our results remain robust under various sensitivity tests.

Dowload the article from SSRN at the link.

Cultures of Legality in Weimar Germany, University of Lucerne (Imagining Justice: Law, Politics and Justice in Weimar Germany: SNSF Project)

From Laura Peterson, University of Lucerne:

We’re pleased to announce the next three talks in our online seminar series on Cultures of Legality in Weimar Germany:

 

Wednesday 30 October, 10am-11am (Switzerland) Javier Samper Vendrell (Pennsylvania), A Film for Children? Autonomy and Vulnerability in Emil and the Detectives (1931)

 

Wednesday 6 November, 10am-11am (Switzerland) Lucy Byford (Bremen), From Imperial Sanctum to Cradle of Democracy: Site and Semantics in Dada Interventions at the Berlin Cathedral and the National Assembly in Weimar (1918-1919)

 

Wednesday 20 November, 9am-10am (Switzerland) Nicole Schraner (Lucerne), Visual Representations of the 1924 Hitler-Ludendorff Trial in the Context of Law and Media NB.

 

Please note start times refer to Swiss local time: Time Zone Converter. The sessions are open to all and we warmly invite you to join us.

Bandes on The Sense of an Ending @BandesSusan @DePaulLaw

Susan A. Bandes, DePaul University College of Law, has published The Sense of an Ending at 73 DePaul Law Review 751 (2024).

One of the delights of shows like HBO's Succession is the virtual communal watch party they create, replete with competing interpretations and passionate predictions about plot development. These conversations reveal some enduring truths about the power of narrative expectations, one of which is the tremendous importance we place on the delivery of a satisfying ending. As the influential literary scholar Frank Kermode argued, “we cannot be denied an end, but it must be the right kind of ending.” One of the fascinating aspects of Succession was the uncertainty about what kind of ending would be satisfying. This uncertainty seems closely tied to the difficulty in pinning down the genre to which Succession belonged. This Essay will first examine the notion of a satisfying ending as it applies to Succession. It will argue that although Succession’s ending was, in some ways, letter-perfect, it was not—and could not be—emotionally satisfying. The emotionally impoverished ending was fitting, but dispiriting, and probably unavoidable given the particular generic traditions upon which Succession drew. The Essay will then pose the question: What lessons can the notion of narrative closure—the need for a satisfying ending—convey about legal proceedings? We have grown accustomed to thinking about law as storytelling, but what insights can narrative theory impart about how law stories ought to end? In legal terms, to determine what constitutes a legally satisfying end point, we first must determine what the proceeding is meant to accomplish. Legal finality may not track literary closure or psychological “closure;” and it is important to distinguish the dictates of the legal system from the impulses that drive finality and closure in other contexts. I will illustrate this point with examples from death penalty jurisprudence, in which the question of an ending is unavoidable and takes several forms: finality of judgment, the notion of “closure” for bereaved family members, and the loss of life.

Download the essay from SSRN at the link.

Peterson on The Fourteenth Amendment and the Venus Noire @UChicagoLaw @WMLawReview

Farah Peterson, University of Chicago Law School, has published The Fourteenth Amendment and the Vénus Noire at 66 William & Mary Law Review 191 (2024). Here is the abstract.

This Essay reflects on art to make two points. It first argues that originalism is not a promising path for progressive causes. It then argues that as the Constitution is amended, the meaning of the entire document is altered, and earlier text should be interpreted in light of what has changed.

Download the essay from SSRN at the link.

Brown, Epstein, and Gulati on The Constraining Efect of "History and Tradition": A Test

Rebecca L. Brown, USC School of Law, Lee Epstein, University of Southern California, and Mitu Gulati, University of Virginia School of Law, have published The Constraining Effect of "History and Tradition": A Test as Virginia Public Law and Legal Theory Research Paper No. 2024-63, Virginia Law and Economics Research Paper No. 2024-28, and USC Law Legal Studies Paper No. 24-33. Here is the abstract.

The U.S. Supreme Court’s embrace of originalism, and particularly the “history and tradition” method of interpreting constitutional text, is often justified by its defenders as constraining judges from making up the law to match their preferences. Two Second Amendment cases (Heller in 2008 and Bruen in 2022), where the Court switched methodologies, provide a vehicle to test the debated question. Analyzing data from federal court decisions on gun rights spanning 2000 to 2023, we find that the switch from a means-ends to a history-tradition methodology corresponds with an increase in judicial discretion. Personal factors like partisan identity, gender, race and careerist considerations shape judicial behavior in the post-Bruen era in ways they did not under the prior regime. The results challenge the notion that a historical approach provides a neutral constraint on judicial discretion.

Download the article from SSRN at the link.

Call For Contributions, Cambridge Handbook on Law, History, and the Visual @CambridgeUP

From Steven Howe, Desmond Manderson, and Laura Peterson: Call For Contributions for the Cambridge Handbook on Law, History, and the Visual:

The Cambridge Handbook on Law, History and the Visual aims to collate cutting-edge scholarship on key topics in a vibrant and growing space of academic inquiry. We are seeking original contributions that explore the myriad ways in which we experience law visually – and the visual lawfully – in and across diOerent times and places in history. Gathering the expertise of scholars working within and between diOerent disciplines, the collection aspires to reflect the current state-of-the-art, to prompt new agendas, and to provide an up-to-date point of reference for students, researchers and teachers alike. We are soliciting proposals for essays of approximately 5,000-8,000 words, from established and emerging scholars, on any topic that fits within the scope of the volume (see below). The Handbook will be published in English, but we seek to provide a broad geographical coverage. We particularly welcome contributions from the Global South. Please note that manuscripts must be original and not be published elsewhere. All submissions will be peer-reviewed. If accepted, the deadline for full essays will likely be June 2026. Please submit proposals (title, abstract of approx. 250 words, biography of approx. 150 words) to Laura Petersen: laura.petersen@unilu.ch by Tuesday 10 December 2024. Please also indicate which theme or themes listed below you consider most relevant for your contribution. Scope of the Volume In the interests of focusing the Handbook coherently, we have identified the following lead themes: 1. Methods: creating the field of visual legal history We invite contributors to reflect on what it means to do scholarship on and in law using visual objects from the past. How might the study of images cultivate new routes into legal history? What stakes are involved when we think law with images in (and beyond) their time and place? 2. Standpoints: scholarly encounters with law and the visual We urge contributors to think directly about standpoint and the limitations and possibilities of undertaking scholarship in this field, including who is part of the encounter, who is not in the picture, and where, when and what is the address of the image? 3. Sources: mediums, archives, materialities We encourage critical engagement with the sources and institutional repositories of historical enquiry, and invite contributions that consider carefully the medium, materiality and provenance of specific images, including the role of potential ‘counterarchives’. 4. Times: from the epochal to the everyday We ask for analysis which considers explicitly how a chosen image(s) sits within time and changes or stays static throughout a particular time/legal period. We encourage diversity in thinking about the scale, period, background and futurity of specific images and their relations with law. 5. Places: place-making and visual jurisdictions We encourage analysis that focuses on a particular site, place, border-land, or country, and for contributors to investigate the strata of relations between the natural or built environment, legality, authority and visual objects. 6. Cross-sections: shifting legal and visual cultures We invite contributions that consider the traOic of images at specific sites and moments, and which locate these flows within visual legal histories. Such inquiries may connect legal images with historical shifts in visuality, or link visual objects with shifts in legal regimes or theories.

The deaadline for the call for contributions is December 10, 2024.

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

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 storia della cultura giuridica 205 (2023).

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.

Steel on Political Threads in Legal Tapestry: A Computational Analysis of Executive Branch Legal Interpretation, 1934-2022 @reillysteel @ColumbiaLaw @Princeton @PennJCL

Reilly Steel, Columbia Law School; Princeton University, is publishing Political Threads in Legal Tapestry: A Computational Analysis of Executive Branch Legal Interpretation, 1934–2022 in the University of Pennsvylvania Journal of Constitutional Law. Here is the abstract.

How does the push and pull between law and politics shape the work of executive branch lawyers charged with providing "neutral" interpretations of the law? To shed light on this longstanding question, this Article undertakes the first large-scale computational analysis of legal interpretation in the executive branch of the United States federal government. Leveraging a novel dataset comprised of the texts of 12,879 pages of opinions issued by the Office of Legal Counsel (OLC), an elite unit of the Department of Justice (DOJ) that provides authoritative legal opinions to top executive branch officials, I use machine learning methods to explore markers of partisanship and ideology in these high-profile executive branch decisions. Several important findings emerge from this analysis. Broadly, I detect a significant partisan gap in the language used by the OLC. Yet this gap appears to have experienced limited growth in recent years, suggesting some degree of disconnect between the OLC and the broader, increasingly polarized political environment. Focusing on more fine-grained distinctions in the use of specific words and phrases, I find that Democrats and Republicans have differed along a number of salient dimensions, including the types of legal arguments invoked, substantive policy-related language, and institutional issues involving the separation of powers. One of the sharpest distinctions relates to executive power, with Republicans being more likely to adopt language associated with expansive presidential authority. I also find evidence that Republicans have more closely associated executive power with various markers of authoritarianism, such as language related to violence, the armed forces, and nationalism. But neither party appears to have consistently associated executive power with markers of democracy more than the other, complicating this picture. These findings have important implications for law and politics. To start, the existence of significant partisan differences in the OLC's language use casts doubt on the prospect that high-ranking executive branch lawyers will act as "neutral expositors" when rendering legal opinions. At the same time, the apparent disconnect from broader trends in polarization arguably offers some sliver of hope for those who would prefer neutrality. Another issue that has attracted both scholarly and popular attention relates to the role of executive branch lawyers in safeguarding against—or alternatively facilitating—democratic backsliding. My results highlight the risks of relying on executive branch lawyers to uphold constitutional guardrails against presidential overreach, especially amidst attempts by certain political actors to increase politicization within the DOJ. Such concerns underscore the potential importance of other institutions in preserving democratic norms.

Download the article from SSRN at the link.

Lloyd on Recasting Canons of Construction Into "Canonical" Queries: Canons and Queries of Meaning, Spirit, Letter, and Text @LloydEsq @WFULawSchool

Harold Anthony Lloyd, Wake Forest University School of Law, has published Recasting Canons of Construction Into “Canonical” Queries: Canons and Queries Of Meaning, Spirit, Letter, and Text. Here is the abstract.

This article builds upon my two prior articles addressing deficiencies in the canons of construction and the need to convert such canons to “canonical” queries. Focusing on canons, presumptions, and queries of speaker meaning, spirit, letter, and text, this article explores: General Queries of Speaker Meaning, Ordinary-Meaning Queries, Consistent Usage Queries, Signifier Drift Queries, Sense Fixation Queries, Reference Fixation Queries, General/Specific Queries, Prospectivity/Retroactivity Queries, and Purpose or “Spirit” Queries. In addressing such queries, this article: (1) continues to recast “canons of construction” into an expanding list of common or “canonical” queries and related tools; (2) addresses necessary steps of distinguishing interpretation (addressing linguistic meaning) from construction (addressing legal meaning); (3) explores the importance of querying speaker meaning including legislative intent; (4) debunks claims that legislative intent is a problematic concept; (5) addresses the necessary step of exploring all available evidence (including legislative history) when performing interpretation and construction; and (6) addresses essential linguistic and semiotic frameworks for such “canonical” queries and related tools. In addressing these essential linguistic and semiotic frameworks, this article also: (7) explores why queried text is a semiotic co-relation of signifier(s) and signified(s); (8) debunks illusory conflicts between text, letter, and spirit of the law; (9) calls out needs to define the meaning of “meaning” presupposed by theories of interpretation and their semantic queries; (10) explores the necessarily experiential and thus temporal nature of such meaning; (11) addresses how meaning’s experiential and thus temporal nature undermines strict fixation theses without also undermining meaning otherwise anchored by concepts or conceptions acknowledged to be temporal; (12) otherwise highlights the essential role of time and experience in legal hermeneutics and semantic queries; and (13) underscores hermeneutics’ essential role not only in rule of law but also in the genesis of lifeworlds so ruled. Any plausible textualism must be consistent with all the above. In that vein, this article is written with hopes of adding its explorations (along with those of my two prior canons to queries articles) to a planned book countering Scalia and Garner’s Reading Law: The Interpretation of Legal Texts. I am happy to share the most current outline of this planned work upon request.

Download the article from SSRN at the link.

Stern on From Clapham to Salina: Locating the Reasonable Man @ArsScripta @LawLitJournal

Simon Stern, University of Toronto Law, has published From Clapham to Salina: Locating the Reasonable Man at 36 Law & Literature 391 (2024). Here is the abstract.

“The man on the Clapham omnibus” is an often cited but poorly understood name for the standard of reasonable care in tort. It originated in a 1903 decision in which this formula was used not to articulate a legal standard but to describe an average person whose views have no legal significance. This figure finds a cousin in another personification, as “the man who takes the magazines at home, and in the evening pushes the lawn-mower in his shirt sleeves.” Both formulations have complex histories that help to underscore their inaptness as descriptors for the standard they are used to represent. These two examples also help to show, more generally, why a personified standard (“the reasonable person”) tends to introduce problems that do not arise with a more abstract one (“reasonableness,” “reasonable care”). Many critics have shown that the “reasonableness” standard is susceptible to problems of bias and framing. Personifying the standard invites the inappropriate use of individuated figures with particular features (e.g., a bus rider from a London suburb) that only worsen these problems. This article traces the history of these two standards, tries to explain how they moved from descriptive to normative use, and then turns to problems with personified standards more generally, showing how some superficially appealing reasons for using a personified standard prove to be unpersuasive.

The full text is available by subscription.

Davies on Casey Meets the Court @horacefuller @GB2d

Ross E. Davies, George Mason University Antonin Scalia Law School; The Green Bag, has published Casey Meets the Court at 27 Green Bag 2d 169 (2024). Here is the abstract.

Ernest Lawrence Thayer, creator of “Casey at the Bat,” produced three versions of his poetical gift to baseball fans. The Supreme Court of the United States, creator of the “baseball antitrust exception,” produced three versions of its doctrinal gift to baseball owners. In Volume VIII of its series of Re-readings booklets, the Green Bag republished all three of Thayer’s versions of Casey, and compared the arc of their literary development to the judicial arc of development of the Court’s baseball antitrust exception. There was something missing, however, from this parallel treatment of Casey and the Court: the two arcs intersected in the end, via Justice Harry Blackmun. This is their story.

Download the article from SSRN at the link.

Phelan on The Promise of Judicial Biography for the Study of the European Court of Justice @tcddublin

William Phelan, Trinity College, Dublin, has published The Promise of Judicial Biography for the Study of the European Court of Justice. Here is the abstract.

This chapter sets out the promise of judicial biography for research on European Union law, with a particular emphasis on historical research on the birth and early development of the European legal order. It demonstrates that there has been little engagement with the biography of the judges of the Court of Justice in previous scholarship, whether in law, social science, or history. It argues that explanations for behaviour of the Court of Justice often rely on implicit assumptions about the personalities and goals of the judges who make up the Court’s decision-makers. It demonstrates how drawing on the materials of judicial biography can improve our understanding of the texts of the Court’s famous judgments, of the politics of appointments and removals from the Court, and of the Court’s relationship with national constitutional courts. It concludes with a detailed agenda for future research, including explicit testing of legal, social science, and historical claims about the Court’s behaviour against available materials relating to judicial biography, as well as an intensification of data gathering on the lives, activities, and legal commitments of its early judges.

Download the essay from SSRN at the link.

Moving Online Symposium: Call For Proposals: Symposium, January 30, 2025, Coventry University, UK @covcampus

Symposium Announcement and Call for Proposals

Moving Online Symposium: Call for proposals 

Ontology and Ownership of Internet Dance

Symposium 30th January 2025 

Coventry University, UK 

 

Full details here: https://movingonline.coventry.domains/symposium/

Deadline for abstracts 13^th October 2024

 

It will be free to attend and a limited number of bursaries will be available to support travel and participation by freelance artists. More information is available here: https://movingonline.coventry.domains/symposium-bursaries/

 

 

In recent years, there has been increased attention paid to the ownership of dance. There has been important work done in the area of dance and copyright1 as well as the examination of the way ownership is managed via social norms through the ‘commons’2 and as a form of ‘gift’.3 The increased circulation of dance online through archives, video platforms and social media sites has led to multiple debates about the copying and re-embodiment of dances,4 reigniting important conversations about appropriation, acknowledgment and credit.5 

 

At the same time, there has been a flourishing of work on dance and performance ontology. For example, long-standing debates about the ephemerality of dance and performance have been reframed through discussions about the ‘post-ephemeral’6and materiality.7 There have also been new perspectives offered on questions about the nature of dances and the way in which they exist.8,9 

 

In this symposium, we are interested in exploring how these two areas intersect in the context of online dance and performance. The event builds on and shares the findings from Moving Online: Ontology and Ownership of Internet Dance https://movingonline.coventry.domains  (funded by the Arts and Humanities Research Council [grant number AH/W01002X/1]). We invite proposals that explore the ownership and/or ontology of dance or performance on the internet. We welcome consideration of dance and performance in all of their forms, genres and online contexts. Suggested themes include, but are not limited to: 

 

• Ownership disputes and resolutions 
• Acknowledgment and credit 
• Non-legal forms of ownership 
• Appropriation, copying and/or commodification 
• Copyright, licensing and/or NFTs 
• Materiality, (post) ephemerality and/or ontology 
• Dance challenges, reworking or reenactment 
• Remediation 
• Ownership, economics and online circulation 

 

Proposals should be for 20, 60 or 90 minute sessions and might include: academic papers, curated discussions and/or online performances or screenings. Please submit the following by 13 October 2024 via this link: https://movingonline.coventry.domains/symposium/

 

• 300 word abstract 
• 100 word bio for each contributor 
• Any technical requirements (please note that there will be limited technical support available) 
• Any dietary requirements 
• Any access requirements 

 

We welcome alternative formats for submission. Please contact Hetty Blades to arrange this: hetty.blades@coventry.ac.uk

 

The event is supported by the Arts and Humanities Research Council via Moving Online (grant number AH/W01002X/1).

 

Timeline: 

• Deadline for Abstracts: 13 October 2024 
• Notification of outcome: 1 November 2024 
• Bursary application deadline: 28 October 2024 

performances or screenings. Please submit the following by 13 October 2024 via this link: https://movingonline.coventry.domains/symposium/

 

• 300 word abstract 
• 100 word bio for each contributor 
• Any technical requirements (please note that there will be limited technical support available) 
• Any dietary requirements 
• Any access requirements 

 

We welcome alternative formats for submission. Please contact Hetty Blades to arrange this: hetty.blades@coventry.ac.uk

 

The event is supported by the Arts and Humanities Research Council via Moving Online (grant number AH/W01002X/1).

 

Timeline: 

• Deadline for Abstracts: 13 October 2024 
• Notification of outcome: 1 November 2024 
• Bursary application deadline: 28 October 2024
• Bursary application outcome: 11 November 2024
• Symposium: 30 January 2025 

   

  Follow the project on X: @MovingOnlineCU and/or Instagram: @movingonlinecu 

   

  Please contact Hetty Blades with any questions: hetty.blades@coventry.ac.uk  

  For the notes and references please see: https://movingonline.coventry.domains/notes-and-references/

Hershkoff and Littlestone-Luria on The Louisiana Constitution and the Courts of Westminster: Standing and the Civil Law Heritage @lalawreview @nyulaw @ALittleStone

Helen Hershkoff and Adam Littlestone-Luria, both of New York University School of Law, are publishing The Louisiana Constitution and the Courts of Westminster: Standing and the Civil Law Heritage in volume 85 of the Louisiana Law Review (2025). Here is the abstract.

A substantial majority of the Roberts Court now purports to rest constitutional jurisprudence on a legal “history and tradition” divined from the nation’s common law heritage. Leaving aside the question whether this approach should carry dispositive weight in interpreting the federal Constitution, this Article raises a different but unacknowledged concern: The Court’s brand of originalism relies on a cramped notion of the nation’s “usable past.” Its myopic focus on our common law heritage erases other critical threads in the relevant legal legacy. In particular, the Article focuses on the civil law heritage of the Louisiana Constitution. As a first step, we interrogate whether the Louisiana court should automatically interpret its state standing requirement in lock step with the federal. We argue that the Supreme Court’s recent move to limit the kinds of legal harms that count as a basis for Article III standing in terms of common law analogues may cause serious distortion if it is mimicked by Louisiana’s courts. Since the civil tradition and civil codes play such an integral role as the source and definition of private rights and interests, a singular focus on common law analogs may warp the proper “history and tradition” that is relevant to Louisiana law. In conclusion, the article steps beyond the Louisiana context, arguing that the analysis carries wider implications. Assuming that history and tradition must, or at least may, play a role in legal analysis, lawmakers and judges in each state should recognize the potential inherent in their own distinctive legal legacies. As a final step, we argue that the Supreme Court’s brand of originalism obscures the deep pluralism that marks the nation’s history and tradition—a multiplicity which standing doctrine should respect and even celebrate.

Download the article from SSRN at the link.

Law and Society Association, Graduate Student & Early Career Workshop Call For Applications @law_soc

From the Law and Society Association (LSA): Call for Applications, Graduate Student and Early Career Workshop

The Law and Society Association (LSA) is pleased to announce the call for applications for the Graduate Student & Early Career Workshop. The workshop will convene on Wednesday, May 21, 2025, immediately preceding the Law and Society Association Annual Meeting in Chicago, Illinois, USA.

We welcome applications from students in graduate/doctoral programs in the social sciences, humanities, and law, as well as early career scholars who received their highest degree after May 1, 2021, including post-doctoral fellows, adjunct faculty, and pre-tenure faculty. Preference will be given to doctoral candidates and early career faculty. Especially where career breaks exist due to family obligations, eligibility will be assessed on a case-by-case basis. Equity, diversity, and inclusion as well as representation of the Global South are priorities for the workshop.

The workshop will take place May 21, 2025, at the Hyatt Regency, Chicago, IL, USA.

Applications are due November 6, 2024.

More information is available here.

Upcoming CLE Event at DePaul College of Law: Arts Law Colloquium: Art and Its Image: Perspective From Copyright, Trademark, and Cultural Property Law, October 9, 2024 @DePaulLaw

 Upcoming event: CLE - Arts Law Colloquium: Art and its Image: Perspectives from Copyright, Trademark, and Cultural Property Law, October 9, 2024, at Depaul College of Law:

Join CAMCHL and CIPLIT for “Arts Law Colloquium: Art and its Image: Perspectives from Copyright, Trademark, and Cultural Property Law” with Dr. Felicia Caponigri, Visiting Scholar, Chicago-Kent College of Law; Guest Scholar, IMT School for Advanced Studies Lucca. This event will be hybrid, both in person and online. Lunch will be provided for in-person guests. 1.0 hour CLE available for IL attendees.

More information available here.

Capers on Afrofuturism and the Law: A Manifesto @BennettCapers @FordhamLawNYC @GeorgetownLaw

I. Bennett Capers, Fordham University School of Law, is publishing Afrofuturism and the Law: A Manifesto in volume 112 of the Georgetown Law Journal (2024). Here is the abstract.

Afrofuturism seems to be everywhere these days. In music, film, dance, literature. And in this special symposium issue of the Georgetown Law Journal, “Afrofuturism and the Law.” This prompts a foundational question. What is “Afrofuturism and the Law”? More specifically, as a practice, as a discipline, and a legal movement, what should Afrofuturism and the Law be. Indeed, given Afrofuturism’s seeming staying power, and its incursion into law, is it time for a manifesto to set parameters? Hence, this proposed manifesto. To be sure, I am troubled by the word manifesto, especially given its connection to the word manifest, which conjures the journey of my ancestors, captured and sold into slavery, becoming cargo, part of a ship’s manifest. But perhaps I can use the latter term to think of the inventory or cargo for another journey. A journey into the future. Perhaps on Parliament Funkadelic’s Mothership. Or Octavia Butler’s Earthseed ship. Or Sun Ra’s jazz spaceship. And maybe that’s the connection between manifest and manifesto. It’s not just the things we should carry. It’s also the things we should hold true. So, a manifesto then.

Download the article from SSRN at the link.

Craddock on Civic Friendship in the Postmodern Polis: Law as Mediator in Shakespeare's Merchant of Venice @joshjcraddock @Harvard_Law

Joshua J. Craddock, Harvard University Law School, James Wilson Institute for Natural Rights and the American Founding, is publishing Civic Friendship in the Postmodern Polis: Law as Mediator in Shakespeare's Merchant of Venice in the Texas A&M Journal of Law & Civil Governance. Here is the abstract.

In Merchant of Venice, Shakespeare explores whether commercial republicanism can alone sustain civic virtue. Putting Shakespeare into conversation with pillars of American political thought, Merchant of Venice seems to support John Adams’ contention that a republican constitution is “made only for a moral and religious people” and “is wholly inadequate to the government of any other.” Economic liberty as an end unto itself cannot form the basis of a coherent political order and must ultimately erode public-spiritedness. By examining the character of the Venetian regime and the irreconcilable differences between its citizens regarding the nature of the Good, the attentive reader can identify barriers to civic friendship and evaluate whether law can serve as a mediating influence against what Publius calls “faction” in The Federalist. Shakespeare suggests that law’s mediating influence on faction is at best tenuous and follows the Aristotelean belief that civic friendship depends in large part on substantial agreement about first principles. These themes find their echoes in American political thought and remain deeply relevant to the legal and political challenges facing re-publican self-government today.

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Vaale and Borge on The Intended Pariahs: Norway's Legal Settlement with Passive Nasjonal Samling Members after 1945 @Vaale1975

Lars-Erik Vaale, USN School of Business, Department of Business, History and Social Sciences, and Baard Herman Borge, University of Tromsø - The Arctic University of Norway - School of Business and Economics, have published The Intended Pariahs: Norway's Legal Settlement with Passive Nasjonal Samling Members after 1945 as Max Planck Institute for Legal History and Legal Theory Research Paper Series No. 2024-09. Here is the abstract.

In the wake of World War II, all previously German-occupied countries in Western Europe carried out legal settlements with those citizens suspected of treasonous collaboration with the occupier. Of these, Norway's treason trials were the most extensive, having as their basis a lower threshold for criminalisation than other countries. According to two legal decrees adopted by the Norwegian Government-in-Exile in 1942 and 1944 espectively, joining or remaining a member of Vidkun Quisling's (1887–1945) collaborationist party Nasjonal Samling (National Unity, NS) after the German invasion 9 April 1940 was punishable as treason. The purpose was to impose a collective punishment on all members, including those who were completely passive. From the outset, however, it was unclear how the decrees related to the Norwegian Penal Code of 1902. The main question was whether party membership alone could automatically lead to punishment when the Penal Code requires a careful assessment of the defendant's criminal intent. During the post-war trials of some 30 000 passive NS-members, this legal ambiguity led to considerable variation in the assessment of their guilt. In most cases, however, suspects were punished for treason based on a summary assessment of intent, even though this practice did not fulfil the requirements of the Penal Code. The end result was the most comprehensive legal reckoning ever carried out against a defeated authoritarian regime.

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Katz on All Roads Leading to the White House: Building Our Presidential Regime of Statutes in Early Modern America (1868-1921) @WashULaw @ascoseriakatz @WUSTL

Andrea Scoseria Katz, Washington University in St. Louis School of Law, has published All Roads Lead to the White House: Building Our Presidential Regime of Statutes in Early Modern America (1868-1921). Here is the abstract.

At the very moment that the Roberts Court places the Chevron doctrine within its sights, it is worth remembering that behind Chevron's rule of judicial deference toward agency discretion lies an institutional settlement that has structured American governance for approximately one hundred and thirty years. Its roots lie in the period from 1868-1921, and its defining values are presidential lawmaking, administrative expertise, and interbranch problem-solving. This Article proposes to tell its story. A century and a half ago, America was just healing from its Civil War wounds when a host of new problems descended: financial crisis, unemployment, the rise of monopolies, political corruption, and waves of urban migration and immigration. Something had to be done, and so the nation revamped its hundred-year-old institutions to make them quicker, responsive, and more powerful. American government became modern. It became, in sum, a presidential democracy. This process began with executives, as early Gilded Age governors and presidents wielded the veto and the bully pulpit to build reputations as popular heroes. Soon, Congress followed with a host of statutes that gave the President unprecedented new authority: to, among other things, set aside lands for conservation; prescribe tariffs and railroad shipping rates; break up monopolies; and set down national priorities in the federal budget. They built an executive able to set policy on its own-a modern president, in other words. Crucially, the Supreme Court gave this regime its blessing in a series of cases upholding the constitutionality of these interbranch compromises. This presidential regime of statutes brought Congress, the President and powerful independent agencies closer together in a negotiated policymaking process involving multiple stakeholders. By trading formal separations and congressional primacy for interbranch cooperation, it proved a success in freeing up government power to solve the nation's problems, especially during two world wars and the Great Depression. Beginning in the late '70s and recently accelerating under the tenure of Chief Justice John Roberts, a formalist Supreme Court has turned on this settlement, rolling back statutory arrangements that gave Congress a role in overseeing administration or that mandated agency independence. The present assault on Chevron is typical. However, separation-of-powers formalism raises several dangers. Not only does it threaten to leave the government without power to meet new challenges and crises, it also risks weakening Congress further, freezing in place the President's powerful agencies with no countervailing mode of legislative oversight or administrative counterweight. Behind modern American government lies a "regime of statutes," a finely wrought settlement designed not only to release power, but also to contain it. We upset this balance at our peril.

Download the article from SSRN at the link.