Law matters, and laws about religion matter a lot. Both the European laws about religious toleration prior to the planting of English America and the laws about religious toleration enacted by the settlers who founded English American colonies for religious reasons employed law primarily as a means of social control. European monarchs wanted power, and they utilized laws about religion to help them acquire it and maintain it. The leaders of the English American colonies planted for religious reasons used law to effectuate their designs: to foster religious toleration in those colonies committed to that animating principle (Maryland, Rhode Island, and Pennsylvania); to try to create an ideal Bible commonwealth for the colonies dedicated to the idea that religion must be practiced as God had ordained (Connecticut and Massachusetts). In short, the settlers of English America were impacted by the European laws about religious toleration that preceded their voyages to the New World. The planters of religiously tolerant colonies tried to learn from what they regarded as Europe’s mistakes, while those who strove for religious purity rejected the prevailing European notion that divine sovereignty must occupy a decidedly secondary place to the sovereignty of the state.Download the article from SSRN at the link.
March 5, 2021
Gerber on The Intellectual History of European Laws About Religious Toleration Prior to the Planting of English America
March 4, 2021
In 2019 I started to work on a small volume on the popular TV franchise 'Game of Thrones' from a political theory perspective; convinced that the show’s plot means not only to expose oneself to the thrills of a sex- and violence-laden fantasy adventure. Watching ‘Game of Thrones’, I thought, requires to do more than simply love or hate the protagonists as they fail or succeed in fighting, scheming and plotting their way to the ‘Iron Throne’. It requires to make political judgments about the agents and their actions. Thus: why not use the characters of the show, the challenges they face, the institutions that determine their fate and the social and legal norms that govern their conduct as a background for an essay in political theory? Save for one chapter, alas, the book has never been written. This chapter (originally intended to be the sixth) focuses on the 'Night's Watch'.Download the article from SSRN at the link.
March 2, 2021
Newly Published: Alexander Lian: Stereoscopic Law: Oliver Wendell Holmes and Legal Education (Cambridge University Press, 2020) @CambridgeUP
Alexander Lian has published Stereoscopic Law: Oliver Wendell Holmes and Legal Education (Cambridge University Press, 2020). Here from the publisher's website is a description of the book's contents.
In this unique book, Alexander Lian, a practicing commercial litigator, advances the thesis that the most famous article in American jurisprudence, Oliver Wendell Holmes's “The Path of the Law,” presents Holmes's leading ideas on legal education. Through meticulous analysis, Lian explores Holmes's fundamental ideas on law and its study. He puts “The Path of the Law” within the trajectory of Holmes's jurisprudence, from earliest scholarship to The Common Law to the occasional pieces Holmes wrote or delivered after joining the U.S. Supreme Court. Lian takes a close look at the reactions “The Path of the Law” has evoked, both positive and negative, and restates the essay's core teachings for today's legal educators. Lian convincingly shows that Holmes's “theory of legal study” broke down artificial barriers between theory and practice. For contemporary legal educators, Stereoscopic Law reformulates Holmes's fundamental message that the law must been seen and taught three-dimensionally.
The book is available through Cambridge Core.
February 26, 2021
Call For Papers: FRANKENLAW: Critical Legal Conference 2021, University of Dundee, September 2-4 @thomgiddens
The Call For Papers for FRANKENLAW, the Critical Legal Conference 2021, University of Dundee, September 2-4, is now open. It will close on March 31, 2021.
Information and queries: email@example.com
I lived principally in the country as a girl, and passed a considerable time in Scotland. I made occasional visits to the more picturesque parts; but my habitual residence was on the blank and dreary northern shores of the Tay, near Dundee. Blank and dreary on retrospection I call them; they were not so to me then. They were the eyry of freedom, and the pleasant region where unheeded I could commune with the creatures of my fancy.Mary Shelley, preface to the 1831 edition of Frankenstein, or The Modern Prometheus
Dundee had an embryonic role in the creation of Mary Shelley’s novel Frankenstein. Approaching the northern fringes of the United Kingdom, Dundee’s ‘eyry of freedom’ helped shape the imaginary that would result in Shelley’s famous text, and the infamous and unnatural conglomeration that it unleashed upon the world. Shelley’s reconstituted monster, created by Dr Frankenstein in his experimentations with the fringes of life, has become a cultural icon from page to stage to screen, and beyond. In taking it as inspiration for the theme of the delayed Critical Legal Conference 2021, Frankenstein’s monster is reformulated as a rich and productive concept that encounters many of the multiple and profound tensions of modern law.
Frankenstein’s monster is typically characterised by the joining together of dead parts to constitute a reanimated whole, brought (back) to life by the power of modern science. As a conceptual figure, it thus becomes a notion of both unity and separation, of life and death, and of the power of reason to structure and animate otherwise individual and decaying parts. Rendered as a form of law—as a Frankenlaw—it conjures questions of detachment and community, of touching and separation, of independence and being bound, of unity and corporation, of the rational resolution of multiplicity—and of the modern social order: a divided whole, a community of atomistic modern subjects under a single, sovereign hierarchy.
Partaking in critical legal studies at Dundee, in the temporal shadow of Mary Shelley’s nascent imagination, it seems appropriate to let the theme of Frankenlaw permeate our reflections. To think with Frankenlaw is to encounter questions of corporate personhood, of the relationship between life and science, of bodies and their parts, of post-state or post-sovereign modes of power, of law as dead things (texts, buildings, victims) compiled and brought to life in different ways, of the possibility of unifying plurality, of community and modern subjecthood. It is an invitation and an opportunity to construct new concepts and modes of legal thought out of dead and useless ones, to animate our encounters with law in controversial and provocative ways, to seek to go beyond the boundaries of reason and modernity and see what we find.
Huddled around the thought of law, the dark of the uncritical creeping in, we shall make ghost stories of our own—we shall conjure for one another our own terrifying and inspiring visions … of Frankenlaw!
February 25, 2021
Call for Papers: International Roundtables for the Semiotics of Law--IRSL 2021. The roundtables are scheduled for June 17-18, 2021, online. Frank Fleerackers is the organizer, and the Leuven University Faculty of Law will host the event, which is in honor of Jan M. Broekman's 90th birthday.
Newly Published: Sal Nicolazzo, Vagrant Figures: Law, Literature, and the Origins of the Police (Yale University Press, 2021) @yalepress
In this innovative book demonstrating the important role of eighteenth-century literary treatments of policing and vagrancy, Nicolazzo offers a prehistory of police legitimacy in a period that predates the establishment of the modern police force. She argues that narrative, textual, and rhetorical practices shaped not only police and legal activity of the period, but also public conceptions of police power. Her extensive research delves into law and literature on both sides of the Atlantic, tracking the centrality of vagrancy in establishing police power as a form of sovereignty crucial to settler colonialism, slavery, and racial capitalism. The first book in several generations to address policing and vagrancy in the eighteenth century, and the first in the field to center race and empire in its account of literary vagrancy, Nicolazzo’s work is a significant contribution to the field of eighteenth-century literary and cultural studies.
February 24, 2021
Gould on Natural Law and the "Resistance": A Normative Approach to the Skywalker Narrative in "The Last Jedi"
The motion picture The Last Jedi involves important decisions and actions taken by the protagonist of the original Star Wars trilogy, Luke Skywalker. It will be argued that Luke’s narrative in The Last Jedi can be explored through analysing new natural law thought. In particular it draws on Robert P. George’s discussion of the good (human flourishing) to consider whether the opposition provided by Luke Skywalker can been seen as a successful form of opposition to restore public morality. The contrast between Skywalker’s morality and the behaviour of the First Order will be established. It will be argued that the Skywalker narrative symbolises public morality against the politics of the First Order. It will be analysed whether Luke’s sacrifice in The Last Jedi can provide legal restraint to a militant invading force. This will further be shown to be helpful to legal philosophy in negotiating the boundaries over natural rights. As such, it will be shown that key features of George’s natural law reasoning can be usefully applied to examine Luke’s actions, and this will shed light upon concepts such as liberty, sacrifice and fear. Legal idealism in the form of natural law will provide further insight into the jurisprudence that pervades Luke’s narrative arch to demonstrate the film’s wider relevance.
February 23, 2021
Canadian constitutional history, since France ceded Canada to the British Crown, can be divided into five broad stages: the beginning of the British colonial regime, the establishment of “responsible government,” the establishment of the federal system, independence, and finally federal-provincial relations and patriation of the Constitution. The Constitution of Canada is made of a number of components that include certain British Acts and decrees, certain federal and provincial laws, constitutional conventions, the common law and case law, and, to a lesser extent, certain secondary sources, such as legal commentaries and literature, and federal-provincial agreements. The purpose of this chapter is twofold. On the one hand, it is to conduct a very brief review of the major periods of Canadian constitutional history and, on the other, to present the various formal components of Canada’s Constitution.Download the chapter from SSRN at the link.
This chapter first considers the direction of the affirmative defense of legal insanity in the United States before John Hinckley was acquitted by reason of insanity in 1982 for attempting to assassinate President Reagan and others and the immediate aftermath of that acquittal. Since the middle of the 20th Century, the tale is one of the rise and fall of the American Law Institute’s Model Penal Code test for legal insanity. Then it turns to the constitutional decisions of the United States Supreme Court concerning the status of legal insanity. Finally, it addresses the substantive and procedural changes that have occurred in the insanity defense since the wave of legal changes following the Hinckley decision.Download the chapter from SSRN at the link.
February 22, 2021
Creepiness and the emotion of the creeps have been overlooked in the moral philosophy and moral psychology literatures. We argue that the creeps is a morally significant emotion in its own right, and not simply a type of fear, disgust, or anger (though it shares features with those emotions). Reflecting on cases, we defend a novel account of the creeps as felt in response to creepy people. According to our moral insensitivity account, the creeps is fitting just when its object is agential activity that is insensitive to basic moral considerations. When, only when, and insofar as someone is disposed to such insensitivity, they are a creep. Such insensitivity, especially in extreme forms, raises doubts about creeps’ moral agency. We distinguish multiple types of insensitivity, respond to concerns that feeling the creeps is itself objectionable, and conclude with a discussion of epistemic issues relating to the creeps.Download the article from SSRN at the link.
February 20, 2021
Schwabach on Bringing the News from Ghent to Axanar: Fan Works and Copyright After Deckmyn and Subsequent Developments @UARKLaw
Fan works offer a lens through which to view the complex future of copyright law. Recent years have seen an explosion in academic interest in fan works, for reasons including the ongoing crisis in copyright law, changes in the way we consume copyrighted content, and increasing interest in fandom itself. Scholarship on fan works has continued to explore the key questions of fair use, parody, and First Amendment protection that allow fan works to exist yet fail to clearly delineate the boundaries of the legal twilight zone in which they reside and thrive. It has also continued to address the intersection between fanfic and gender and what this says about the gendered nature of intellectual property law. Much has also been written about the future of copyright in general, and of fan works in particular, often looking at fan works from new perspectives, including law and economics and the closely related vexing problem, for content owners, of how to address possible infringement without alienating the fanbase. This article looks at recent developments relating to fanfic first by looking at the historical context and current state of fan works, and next by looking at story elements and the ways in which they are and are not protected by copyright. The article devotes special attention to the related issues of cultural appropriation and reinterpretation, looking at Own Voices stories and street murals as a means of reclaiming a right to cultural property appropriated by others. The article then looks at the shrinking space for online fan works, with a look at two fairly recent decisions dealing with works based on existing popular culture franchises. One, Paramount Pictures Corp. v. Axanar Productions, deals with true fan art (a Star Trek fan film), while the other, Deckmyn v. Vandersteen, deals with hate speech masquerading as fan art. Ultimately the article concludes that there is both good and bad news for fans in the current situation. The good news is that the formerly frustratingly nebulous legal status of fan works is increasingly coming to be understood by fan work creators, courts, and content owners. The bad news is that the balance of powers in copyright generally, is increasingly shifting to large content owners.Download the article from SSRN at the link.
February 15, 2021
Journal for the History of Knowledge Publishes Special Issue: "Histories of Bureaucratic Knowledge" @jhokjournal
The Journal for the History of Knowledge has published its Special Issue, "Histories of Bureaucratic Knowledge," edited by Sebastian Felten and Christine von Oertzen. Here is a link to the Special Issue.
Contributions: Sixiang Wang, Chosŏn’s Office of Interpreters: The Apt Response and the Knowledge Culture of Diplomacy John Sabapathy, Making Public Knowledge—Making Knowledge Public: The Territorial, Reparative, Heretical, and Canonization Inquiries of Gui Foucois (ca. 1200–1268) Susanne Friedrich, Caveat from the Archive: Pieter van Dam’s Beschryvinge van de Oostindische Compagnie and Crisis Management Harun Küçük, The Bureaucratic Sense of the Forthcoming in Seventeenth-Century Istanbul Sebastian Felten, Sustainable Gains: Dutch Investment and Bureaucratic Rationality in Eighteenth-Century Saxon Mines Maura Dykstra, A Crisis of Competence: Information, Corruption, and Knowledge about the Decline of the Qing State Kathryn M. Olesko, The Indaganda Survey of the Prussian Frontier: The Built World, Logistical Power, and Bureaucratic Knowledge in the Polish Partitions, 1772–1806 Anna Echterhölter, Shells and Order: Questionnaires on Indigenous Law in German New Guinea Theodore Porter, Revenge of the Humdrum: Bureaucracy as Profession and as a Site of Science.
The Journal for the History of Knowledge is an open access, peer-reviewed journal.
February 13, 2021
Tzanaki on The Interbeing of Law and Economics: Building Bridges, Not Walls--Interdisciplinary Scholarship and Dialectic Pedagogy @AnnaTzanaki
Some fifty years ago, Pink Floyd topped the music charts irreverently vocalizing the idea that education is just “Another Brick in the Wall.” Should this popular enchantment of hearts and minds cause alarm to professional teachers and higher education scholars? How much relevance does the progressive rock band’s verse have to the spirit of contemporary academy? A calmer, more composed reaction of educators would be one of constructive introspection over disciplinary and our own pedagogical practice. It is important to pause for a moment and ask what the enduring value, function and role of university education in the 21st century are. In the modern-day “knowledge society,” where the sources and means of learning abound, formal education is to be regarded as a tool of individual empowerment and “enlightenment” rather than some off-the-shelf commodity to be provided en masse. By this view, academic training is a building block in creating sustainable and inclusive societies and not merely a functional production machine of a future skilled workforce. With this mission clear, could it be said that legal education today is up to task? Could the discipline of law expand, learn and be enriched by other disciplines? In an equally irreverent manner, this article claims that connecting Law with Economics may recast the image of scholarly education as a cross-disciplinary bridge, instead of a brick wall, in the quest for finer quality and resilience in the curriculum and beyond.Download the essay from SSRN at the link.
During the "Age of Empire" (1800-1920), the concepts of "Liberty" and the "Rule of Law" were subject to various contested understandings or "visions". This chapter examines how these visions were reflected through different cultural outputs, ranging across literature, painting, music and cartoons.Download the essay from SSRN at the link.
February 12, 2021
McGlynn on Moving From Written Records To Bureaucratic Mind: Imagining a Criminal Record @ArsScripta
Via Simon Stern, Professor of Law, University of Toronto:
Margaret McGlynn, University of Western Ontario, has published From Written Record to Bureaucratic Mind: Imagining a Criminal Record, at 250 Past & Present 55-86 (2021). Here is the abstract.
In 1518 the chief justice of King’s Bench initiated an attempt to track successful claims of benefit of clergy on the assize circuits to ensure that laymen could make such claims only once, as mandated by a statute dating from 1490. By doing so he was the first to attempt to create a criminal record in England, where an individual felon’s crimes were recorded with the expectation that an earlier crime would have implications for the punishment of a subsequent one. Both this attempt and a later statutory attempt in 1543 were largely unsuccessful, however. They failed, not because of principled opposition or even inertia, but because the well-established bureaucratic structures of the early Tudor period struggled to keep up with the bureaucratic imagination of those who sought to reform or extend the reach of government. The failed attempt to construct a criminal record demonstrates that as the development of print changed information cultures, and the policies of the Tudors led to an intensification of governance, legal records remained profoundly limited by the intellectual and administrative structures within which they operated. Masters of the gathering of information, Tudor governors struggled to adapt old documents to new purposes or to manage information dynamically.
The right to trial in civil cases is enshrined in the United States Constitution and most state constitutions. Most people, laypersons and legal professionals alike, consider trials an essential component of American democracy. But real life civil trials are disappearing from the American legal landscape. Films, like books designed for consumption by the general public, are cultural documents that embody a society’s attitudes about and views of the law and the legal system. Courtroom films are the most easily recognizable and popular subset of films about law because they provide the stage for an examination of some aspect of a trial—juries, lawyers, litigants, laws or the legal process itself. Some legal commentators contend that legal films have the capacity to teach and encourage film audiences to think more critically about the legal system. But most trial films involve criminal cases. Thus this essay asks whether the distinction between criminal and civil films trials is important when determining the impact of the decline in real-life civil trials on American popular culture and courtroom films in particular.Download the article from SSRN at the link.
February 10, 2021
Newly Published: Peter Goodrich: Advanced Introduction To Law and Literature (Edward Elgar, 2021) @ElgarPublishing
Peter Goodrich presents a unique introduction to the concept of jurisliterature. Highlighting how lawyers have been extraordinarily productive of literary, artistic and political works, Goodrich explores the diversity and imagination of the law and literature tradition. Jurisliterature, he argues, is the source of legal invention and the sign of novelty in judgments.
February 9, 2021
Shakespeare has been quoted and invoked in numerous contexts, but, inexplicably, the insights his immortal words bring to tax law have been ignored. This short and lighthearted piece begins to fill that gap. Expanding on my remarks in accepting the 2009 Dana Latham Memorial Award from the Los Angeles County Bar Association Taxation Section, I discuss quotations from Shakespeare’s plays that illuminate important tax doctrines.Download the article from SSRN at the link.
Patent law promotes innovation by giving inventors 20-year-long exclusive rights to their inventions. To be patented, however, an invention must be “enabled,” meaning the inventor can actually describe it in enough detail to teach others how to make and use the invention at the time the patent is filed. When inventions are not enabled, like a perpetual motion machine or a time travel device, they are derided as “mere science fiction”—products of the human mind, or the daydreams of armchair coots, that are not suitable for the patent system. This Essay argues that, in fact, the literary genre of science fiction has its own unique—albeit far laxer—enablement requirement. Since the genre’s origins, fans have demanded that the inventions depicted in science fiction meet a minimum standard of scientific plausibility. Otherwise, the material is denigrated as lazy hand- waving or, worse, “mere fantasy.” Taking this insight further, the Essay argues that, just as patents positively affect the progress of science and technology by teaching others how to make and use real inventions, so too can science fiction, by stimulating scientists’ imagination about what sorts of technologies might one day be possible. Thus, like patents, science fiction can have real world impacts for the development of science and technology. Indeed, the Essay reveals that this trajectory—from science fiction to science reality—can be seen in the patent record itself, with several famous patents tracing their origins to works of science fiction.Download the article from SSRN at the link.
February 8, 2021
Who were Adam Smith’s lost loves, and how does the enigma of Smith’s love life inform his defense of personal and economic liberty? With a view toward systematizing the available evidence and extending the work of previous scholars, I will re-assemble all the admissible amorous evidence, subject such facts to critical scrutiny, and draw reasonable inferences from these sundry proofs. First, I will present four pieces of primary evidence regarding Adam Smith’s lost loves. Secondly, I will make several new conjectures and revisit several intriguing hypotheses concerning Doctor Smith’s sexuality and romantic attachments. Thirdly, I speculate about Smith’s adamant desire to have his private papers and correspondence destroyed upon his death and about the possibility of a lost travel diary from his Grand Tour of France, and lastly, I will consider two additional clues that may shed light on this amorous enigma. Specifically, I will revisit Adam Smith’s analysis of love and lust in The Theory of Moral Sentiments, and I will conclude this paper by exploring the geographical dimension of Adam Smith’s enigmatic love life: the strict ecclesiastical regulation of sex in the Scotland of Doctor Smith’s youth.Download the article from SSRN at the link.
Lash on The 1791 Amendments as the "Bill of Rights," Founding To Reconstruction (A Response To Revisionists) @URLawSchool
Unlike the “Declaration of Rights” annexed to many state constitutions, the ten amendments added to the federal Constitution in 1791 have no formal title at all. It is only by cultural tradition that Americans refer to these provisions as our national “Bill of Rights.” Until recently, most scholars assumed that this tradition could be traced back to the moment of ratification. Over the last decade or so, however, a number of scholars have challenged this assumption. These “Bill of Rights revisionists” claim that Americans did not commonly refer to the first ten amendments as “the bill of rights” until the twentieth century. Prior to that, most Americans either did not believe they had a national bill of rights or they would have more likely pointed to the Declaration of Independence as the country’s “bill of rights” than to the 1791 amendments. If the revisionists are right, then a substantial portion of constitutional historical scholarship is shot through with historical error, in particular scholarship supporting the incorporation of the Bill of Rights as part of the Fourteenth Amendment. This essay examines the historical record in order to determine whether the claims of the Bill of Rights revisionists are correct. It presents the results of an exhaustive investigation of political, legal and cultural references to the “bill of rights” from the time of the Founding to Reconstruction (and beyond). These references, most of which are presented here for the first time, suggest that the revisionist claims about the ten amendments are false. Long before the twentieth century, and decades before Reconstruction, Americans commonly referred to the first ten constitutional amendments as “the Bill of Rights.” Moreover, references to the 1791 amendments as the national bill of rights vastly outnumber historical references to the Declaration of Independence as a “bill of rights,” and indicate that nineteenth century Americans were not at all confused about the meaning and content of their national “Bill of Rights.” If any “revision” is in order, it is the need to (1) revisit and revise our understanding of the original theoretical role played by the Bill of Rights at the time of the Founding and (2) recognize the remarkably broad coalition of Americans who, by the time of Reconstruction and the Fourteenth Amendment, embraced an altogether different theory of the 1791 amendments.Download the article from SSRN at the link.
February 6, 2021
ICYMI: Peter Leman, Singing the Law: Oral Jurisprudence and the Crisis of Colonial Modernity in East African Literature (Liverpool University Press, 2020) @BYU @LivUniPress
Peter Leman, Department of English, Brigham Young University, has published Singing the Law: Oral Jurisprudence and the Crisis of Colonial Modernity in East African Literature (Liverpool University Press, 2020).
February 5, 2021
Volume 35 of the Journal of Law and Religion (December 2020) is now available. Here's a link to the table of contents.
Among the very interesting pieces: Cuilan Liu, "The Fall of a Chinese Buddhist Monk: Law and State Governance of Buddhism in Post-Imperial China," and a book review of Nathan C. Walker's "The First Amendment and State Bans on Teacher's Religious Garb (Routledge, 2020) by Ashley Rogers Berner.
ICYMI: Sherwin on Law's Enchantment: The Cinematic Jurisprudence of Krzysztof Kieslowski @RKSherwin @OxUniPress
Mythos begets nomos. In myth begins the normative universe in which we live. Law emerges to maintain that universe, and to foreclose others. Law polices the normative reality through the official stories that it tells, for these are the stories whose meanings are backed by the force of the state. But law's stories are often shaped and informed by popular narratives from the culture at large. This shared process of narrative production, adaptation, and critique attests to law's deep entanglement in the meaning-making function of culture.The full text is not available from SSRN.
January 29, 2021
Knowles on Learning the Law in 1830s Massachusetts: The Contrasting Experiences of Wendell Phillips and Lysander Spooner @KnowlesGardner
In the 1840s, Lysander Spooner and Wendell Phillips espoused opposing abolitionist interpretations of the United States Constitution. The former argued that the document did not sanction the enslavement of human beings, the latter denounced the text as a proslavery “covenant with death, and an agreement with hell.” This essay explores the effects of their contrasting legal educations on these theories. In the 1830s, Spooner worked as a legal apprentice under the tutelage of John Davis, Charles Allen, and Emory Washburn, three prominent lawyers (and politicians) working in Worcester, Massachusetts. By contrast, Phillips, consistent with his Boston Brahmin ancestry, attended the then-nascent Harvard Law School. The essay concludes that Spooner’s legal philosophy shows a far greater indebtedness to his legal education than does Phillips’s. This argument is defended by drawing on the voluminous correspondence and papers of both Phillips and Spooner, and the writings of their legal tutors and mentors.Download the article from SSRN at the link.
January 28, 2021
I loved reading Bernadette Meyler’s Theaters of Pardoning, largely because of the way she feasts at the well-laden table of 17th century British theater as she discerns themes of mercy by the powerful. It is also exactly the right time to revisit clemency’s trajectory through Western civilization, as we rebound from a practitioner, Donald Trump, who used it as an extension of his own ego. In the end, though, the book was a great meal that still left me hungry, in that it never really tried to connect clemency’s historical path to the very real challenges we face today.Download the essay from SSRN at the link.
January 27, 2021
Newly Published: Jacqueline D. Lipton, Law and Authors: A Legal Handbook For Authors (2020) @PittLaw
Jacqueline D. Lipton, University of Pittsburgh Law School, has published Law and Authors: A Legal Handbook For Authors (University of California Press, 2020). Here from the publisher's website is a description of the book's content.
Everything a writer needs to know about the law. This accessible, reader-friendly handbook will be an invaluable resource for authors, agents, and editors in navigating the legal landscape of the contemporary publishing industry. Drawing on a wealth of experience in legal scholarship and publishing, Jacqueline D. Lipton provides a useful legal guide for writers whatever their levels of expertise or categories of work (fiction, nonfiction, or academic). Through case studies and hypothetical examples, Law and Authors addresses issues of copyright law, including explanations of fair use and the public domain; trademark and branding concerns for those embarking on a publishing career; laws that impact the ways that authors might use social media and marketing promotions; and privacy and defamation questions that writers may face. Although the book focuses on American law, it highlights key areas where laws in other countries differ from those in the United States. Law and Authors will prepare every writer for the inevitable and the unexpected.
January 24, 2021
A plethora of attorneys on the Hallmark Mystery Movie mini-series Darrow & Darrow. Lawyer characters include Joanna Darrow (Wendie Malick), her daughter Claire (Kimberly Williams-Paisley), and in the fourth episode, their client Cassie Piper (Elysia Rotaru), an attorney accused of insider trading, and then murder.
There are, of course, also prosecutors and judges, and paralegals. It's a well-acted series; watch for the relationships and the romance.
Via Sam Brunson at Loyola Chicago Law, this piece by Leandra Lederman, Indiana University School of Law, about Superman and his tax problems. Published at The Surly Subgroup.
January 22, 2021
Newly Published: Painting Constitutional Law: Xavier Cortada's Images of Constitutional Rights, edited by M. C. Mirow and Howard W. Wasserman @BrillPublishing
In May It Please the Court, artist Xavier Cortada portrays ten significant decisions by the Supreme Court of the United States that originated from people, places, and events in Florida. These cases cover the rights of criminal defendants, the rights of free speech and free exercise of religion, and the powers of states. In Painting Constitutional Law, scholars of constitutional law analyse the paintings and cases, describing the law surrounding the cases and discussing how Cortada captures these foundational decisions, their people, and their events on canvas. This book explores new connections between contemporary art and constitutional law. Contributors are: Renée Ater, Mary Sue Backus, Kathleen A. Brady, Jenny E. Carroll, Erwin Chemerinsky, Xavier Cortada, Andrew Guthrie Ferguson, Leslie Kendrick, Corinna Barrett Lain, Paul Marcus, Linda C. McClain, M.C. Mirow, James E. Pfander, Laura S. Underkuffler, and Howard M. Wasserman.
New from Katharina Isabel Schmidt of Yale Law School and Princeton University: Theodor Sternberg and the Closet of Conceptualism at the blog History/Sexuality/Law. The piece explores the relationship between law and love through the eyes of German-Jewish jurist-turned-sexologist Theodor Sternberg.
January 21, 2021
InterLaw Guest Lecture, February 24, 2021, Features Katharina Pistor, Columbia Law School @KatharinaPistor @ThomGiddens @LawDundee @PrincetonUPress
January 18, 2021
Sharp on #Vulnerability--Expectations of Justice Through Accounts of Terror of Twitter @popgoesthelegal @OxfordCSLS
January 15, 2021
The goal of this Article is to introduce a comprehensive methodology for the analysis of visuals used for communication in legal works, by which I mean transactional and litigation documents, legal instruments, primary and secondary sources of law, and legal informational materials. The new methodology has the following steps drawn from visual rhetoric, visual literacy, and mise en scène studies: Immediate Visual Context, Analysis of Meaning, Taxonomy of Purpose and Function, Immediate Verbal Context, Visual Cultural Context, Mise en Scène and the Rhetorical Topic of Arrangement, Visual Rhetoric and the Ethical and Professional Propriety of the Work. My intent in this Article and the methodology it presents is to examine visual elements as visuals, not as a translation or alternative form of verbal communication. The approach of trying to translate visual works into verbal arguments or verbal elements of legal reasoning limits the scope and the effectiveness of the visual works, because communication through visuals employs a separate visual language, and not in a literal or verbal sense. The methodology proposed in this Article is a set of tools that can help verbally-oriented law-trained writers to become better readers, evaluators, and creators of visual communications in the law. Keywords: visual rhetoric, visual legal rhetoric, visual literacy, multimodal, multimodality, proactive, Proactive Law, visualization, Legal Design, visual context, verbal context, visual cultural context, visualization in contracts, cartoon contracts, comic book contracts, Mise en Scène, diagrammaticsDownload the article from SSRN at the link.
January 12, 2021
A human body grows and changes but remains the same body. The same is true of other organisms, even though some transform dramatically. Metamorphosis is a poetic and mythological conceit of identity, change, and continuity. It applies just as well to the law of contract and helps us understand the power of the contract law canon and the conventional understanding of the legal history of contract. The ideas probably hold true for private law generally, but the focus is on Anglo-American contract law with a foray into Scots private law. Three aspects of mythology and metamorphosis are highlighted. First, the conventional understanding of legal history shapes what the law is. In the story of legal development, we see an implicit notion of progress — with missteps and complications of plot, but with the conviction that eventually the law, like any myth, will work itself out in a way that is right — not necessarily a way that is good but instead a way that fits with society. And in any system based on case law, this conventional understanding of legal development shapes the law itself. Second, the force of this conventional understanding is scarcely lessened by demonstrable falsity. Classic books, lectures, and cases illustrate the idea that historical inaccuracy is an insignificant check on the power of myth. Finally, myths consist not only of explanatory plotlines; they also draw on characters and settings that reflect and inspire the society they serve. Legal myths are no different. Understanding legal mythology requires an attentive ear and a sharp eye for the characters, as well as the storytellers. The reasonable man is not the same as the reasonable person (or is he — a metamorphosis?), and in any case is not the same as the bonus paterfamilias or bon père de famille—the good father of the family, or good family man, the comparable figure of Roman and civil law. Setting matters as much: the heritage of kings and lords, and judges and Westminster Hall, makes for different offspring than that of Rome and Continental learning, of wise thinkers and treatise authors, of Parliament House and institutional writers. When law is understood as a humanistic and rhetorical discipline, the force of myth, in all its aspects, is only natural.Download the article from SSRN at the link.
January 9, 2021
Ricca on Perpetually Being Astride Eden's Boundaries: The Limits to the "Limits of Law" And the Semiotic Inconsistency of "Legal Enclosures" @AnneWag26082949
Legal systems can be metaphorically taken as semantic and pragmatic enclosures. The ancient world has given us at least three literary loci that display the self-disruptive significance of this kind of metaphor if assumed as a practical guideline in the attempt to steer human experience. The first such loci can be traced in biblical Eden; the second one in the Phaeacian garden described in Homer’s Odyssey; the third in the stories of the first and second mythical Athens included in Plato’s Timaeus and Republic. In all these tales, human beings ineluctably end up straying across the semantic-spatial borders which certain categories and rules have given them to encompass their experience. All these literary loci offer both a semio-cognitive and a constitutional lesson for lawyers and sovereigns. My intention is to exploit these lessons to show that the most relevant limit of legal systems, if taken as semantic and pragmatic enclosures, consists precisely in their inability to constitutively limit themselves and their semiotic borders. This inaptitude is due, in my view, to the semiotic ‘exceedance’ of the phrastic, or descriptive parts of legal rules even more than the semantic vagueness of the values underlying their legitimacy. Any attempt to define the semantic and spatial boundaries of human experience by means of verbal enunciations implies the use of categorical schemes to define the legitimate and/or forbidden behaviors. But categorical schemes, in turn, comprise boundaries that draw protean verges between the inside and the outside of each category. The categorical ‘inside’ compellingly tends to exceed its borders so as to protrude out toward what is outside the category. In turn, the ‘outside’ shows, more often than not, continuities with the axiological/teleological patterns underpinning the semantic boundaries of legal rules. Any attempt to limit the competence/extension of law, if taken in its semantic/spatial significance, would seem to unveil what law could or should be, but is not. Relying on the above literary loci, I will try to demonstrate that this apparently contradictory implication is inherent in the dialectic between equality/universality and difference/plurality that makes up categorization itself, and thereby the semiotic prerequisites to considering any legal rule.Download the article from SSRN at the link.
January 8, 2021
With this Article, I have completed a trilogy of studies on the jurisprudence of Thomas Aquinas. In “Thomas Aquinas: Definitions and Vocabulary in His Treatise on Law,” I conducted a careful examination of Thomas’ juristic language to conclude that Aquinas viewed law rather as a senior administrator might. In “Thomas Aquinas (1225-1274),” I reviewed the main lines of Aquinas’ constitutional thought. In this Article, I focus intensely on a narrow but compelling theme: Thomas’ thought on the legitimacy of tyrannicide. I conclude that Thomas justifies tyrannicide while trying at the same time to preserve good order. The touchstone of his analysis throughout is the common good. If the ruler breaks faith the common good, the ruler has thereby committed sedition and appropriate action might be taken by private citizens and public authorities.Download the article from SSRN at the link.
January 6, 2021
Anthony Trollope (1815-1882) resides in the pantheon of nineteenth century English literature. Overcoming a miserable childhood, he became an official with the post office and is credited with introducing the familiar red mailbox. While working full time in his postal position until 1867, he still managed to publish 47 novels, travel books, biographies, short stories, collections of essays, and articles on various topics. Trollope has been described as the novelist of the ordinary for his realistic description of English society. Law and legal issues flow through Trollope’s fiction. The legal system held a special importance to him as the skeleton upholding the social and political framework of the country. Over one hundred lawyers appear in his work and eleven of his novels feature trials or hearings. The law intrigued and exasperated him. Along with the lawyers and legal issues he depicts are ideas of the law and legal system that are part of elaborate philosophical and jurisprudential traditions, which he recognized. This article examines Trollope’s changing attitude toward lawyers. It describes the structure of the Bar in terms of class, status and reputation. Trollope believed the legal system should ensure justice, and those who labored in the law should be the vehicle of that pursuit. Justice for Trollope was the meting out of rewards and punishments as the consequence of a right or wrong decision. However, the law, as he depicted it, was often an impediment to this process, and lawyers were unreliable guides. Initially Trollope portrayed lawyers critically as caricatures as evinced by such names as Alwinde, O’Blather, Slow & Bidewhile, Haphazard, and Chaffanbrass. He was outraged that barristers (lawyers who appear in court) put loyalty to their clients ahead of the search for truth and justice. The adversary system was flawed as the enactment of laws in accord with the laws of nature assumes an inbuilt moral compass in humans that contains self-evident truths of right and wrong. Trollope felt there was no reason why a right-minded person could not intuitively recognize the truth, so criminal law’s adversary system was unnecessary. The legal system sought not the discovery of the truth but was more interested in aiding the guilty defendant to escape punishment. Another grievance was that cross examination in a trial submitted honest witnesses to torture and distracted them from testifying as to the truth. As he matured as a writer and achieved success, Trollope’s understanding and appreciation of the legal profession changed. He met and become friends with leaders of the Bar, and they influenced his descriptions of lawyers, who became realistic and often admirable human beings. Beyond the legal problems of its characters, Trollope’s later novels incorporated the social, political, and jurisprudential issues of the times and engaged the Victorian legal culture in a broader sense of history, traditions, continuity and change. Trollope’s attention to the faults of the adversary system had its source in principles of natural law, which posited that God-given universal axioms of right and wrong gave individual guidance or a map for reaching the right result in a legal controversy. Natural law principles were challenged during the Victorian era by positivist notions that law is what the statute books say, and legislators enact. These divisions lurk in the background of his later portraits of lawyers and the legal system. In his later period Trollope created a realistic characterization of the legal profession at the time that offered universal insights into human nature.Download the article from SSRN at the link.
January 5, 2021
This is a translation of ‘Der Mensch im Recht’, Gustav Radbruch's inaugural lecture at the University of Heidelberg in November 1926, translated with an Introduction by Valentin Jeutner. Radbruch addresses the way in which law's image of the human informs the operation and content of law.Download the translation of the lecture from SSRN at the link.
January 4, 2021
Putting yourself in other people’s shoes is a highly evolved cognitive capacity. And it can be argued that it is one of the important tasks of those who make decisions for others which are meant to be fair, including judges and arbitrators, and all manner of other adjudicators. Now, one of the social functions of literary fiction is precisely to allow the reader to experience the story, a situation, from the protagonists’ perspective, to help her see what the world looks like standing where they do. Historically, this played a significant role in advancing women’s rights and minorities’ rights and to end a range of inhumane treatments, including slavery: works of literature got the general public to understand what it really is like to be in the shoes of those who suffer from these discriminations, from those exactions. So why, then, not encourage international adjudicators to connect with literature, with literary works, and remember the ‘centrality of texts to the form and substance of a community’s moral and social life’ (West 1988, 131) – texts which of course are not only legal texts? Study how literary works are constructed, their rhetoric, and you will be a better advocate, a better judge; study what literary works have to say, the societal functions and figures and values and aesthetics that they experiment with, and you may be a better international adjudication scholar. This paper offers an introduction to this way of thinking.Download the article from SSRN at the link.
The Black ton exists. It is a social world with clearly defined norms and beliefs. Like Regency England, that social world relies almost singularly on heteronormative marriage for identity and gatekeeping. Children are groomed for marriage in ways that are modern but would not feel completely foreign to Bridgerton’s conflicted belle à la ton, Lady Daphne Bridgerton. There are cotillions and informal matchmakers and child-bearing expectations. The Black ton has its social institutions and its organizations: from Jabberwockys to Sigma Pi Phi. There are distinctions between “new money” and inherited status. And, befitting any ton worth its salt, there are parties. And, like any elite status group, the Black ton cultivates loyalties and inspires aspirational fantasies. I would go so far as to say that everything from reality television shows like the “Real Housewives of Atlanta” to hip-hop capitalist fantasies are about latent desires for what the Black ton represents. In fact, television producer Mona Scott-Young may be Shonda’s aspirational Black ton equivalent. Scott-Young produces the wildly successful “Love & Hip Hop” reality series. It is a show that melds the desire of the Black ton with the aesthetics of hip-hop culture. Every sub-culture just uses the tools they have to make their own version of the same fantasy: A girl of good parentage eventually marries a Duke or a platinum rapper because the Ton requires it to reproduce itself.
December 27, 2020
Newly Published: Emily Zobel Marshall, American Trickster: Trauma, Tradition, and Brer Rabbit (Rowman & Littlefield: 2020) @EmilyZMarshall @LeedsBeckett @RLPGBooks
Our fascination with the trickster figure, whose presence is global, stems from our desire to break free from the tightly regimented structures of our societies. Condemned to conform to laws and rules imposed by governments, communities, social groups and family bonds, we revel in the fantasy of the trickster whose energy and cunning knows no bounds and for whom nothing is sacred. One such trickster is Brer Rabbit, who was introduced to North America through the folktales of enslaved Africans. On the plantations, Brer Rabbit, like Anansi in the Caribbean, functioned as a resistance figure for the enslaved whose trickery was aimed at undermining and challenging the plantation regime. Yet as Brer Rabbit tales moved from the oral tradition to the printed page in the late nineteenth-century, the trickster was emptied of his potentially powerful symbolism by white American collectors, authors and folklorists in their attempt to create a nostalgic fantasy of the plantation past. American Trickster offers readers a unique insight into the cultural significance of the Brer Rabbit trickster figure, from his African roots and through to his influence on contemporary culture. Exploring the changing portrayals of the trickster figure through a wealth of cultural forms including folktales, advertising, fiction and films the book scrutinises the profound tensions between the perpetuation of damaging racial stereotypes and the need to keep African-American folk traditions alive. Emily Zobel Marshall argues that Brer Rabbit was eventually reclaimed by twentieth-century African-American novelists whose protagonists ‘trick’ their way out of limiting stereotypes, break down social and cultural boundaries and offer readers practical and psychological methods for challenging the traumatic legacies of slavery and racism.
December 26, 2020
Newly Published: Monsters, Law, Crime: Explorations in Gothic Criminology, edited by Caroline Joan Picart @fdu_press @RLPGBooks
Monsters, Law, Crime, an edited collection composed of essays written by prominent U.S. and international experts in Law, Criminology, Sociology, Anthropology, Communication and Film, constitutes a rigorous attempt to explore fertile interdisciplinary inquiries into “monsters” and “monster-talk,” and law and crime. This edited collection explores and updates contemporary discussions of the emergent and evolving frontiers of monster theory in relation to cutting-edge research on law and crime as extensions of a Gothic Criminology. This theoretical framework was initially developed by Caroline Joan “Kay” S. Picart, a Philosophy and Film professor turned Attorney and Law professor, and Cecil Greek, a Sociologist (Picart and Greek 2008). Picart and Greek proposed a Gothic Criminology to analyze the fertile synapses connecting the “real” and the “reel” in the flow of Gothic metaphors and narratives that abound around criminological phenomena that populate not only popular culture but also academic and public policy discourses. Picart's edited collection adapts the framework to focus predominantly on law and the social sciences.
More here at the website.
December 18, 2020
Pragmatism, Logic, and Law offers a view of legal pragmatism consistent with pragmatism writ large, tracing it from origins in late 19th century America to the present, covering various issues, legal cases, personalities, and relevant intellectual movements within and outside law. It addresses pragmatism’s relation to legal liberalism, legal positivism, natural law, critical legal studies (CLS), and post-Rorty “neopragmatism.” It views legal pragmatism as an exemplar of pragmatism’s general contribution to logical theory, which bears two connections to the western philosophical tradition: first, it extends Francis Bacon’s empiricism into contemporary aspects of scientific and legal experience, and second, it is an explicitly social reconstruction of logical induction. Both notions were articulated by John Dewey, and both emphasize the social or corporate element of human inquiry. Empiricism is informed by social as well as individual experience (which includes the problems of conflict and consensus). Rather than following the Aristotelian model of induction as immediate inference from particulars to generals, a model that assumes a consensual objective viewpoint, pragmatism explores the actual, and extended, process of corporate inference from particular experience to generalization, in law as in science. This includes the necessary process of resolving disagreement and finding similarity among relevant particulars.Download the introduction from SSRN at the link. The book is available from Lexington Press. Here is a link to the publisher's website.
December 17, 2020
This paper was delivered as a keynote talk at the 13th Annual Doctoral Forum on Legal Theory, 'Sirens + Silences: Law in Lockdown', co-hosted by Melbourne Law School and UNSW Law. Responding to the convenors' invitation to reflect on "a year marked by upheaval and stasis", it explores how legal scholars in various settings might plan a route out of the global COVID-19 pandemic that is not simply a return home. Five legal and political "songs" in broad circulation are identified – songs of salvation, separation, suspension, stagnation, and absurdity – and arguments made for resisting some of their appeals. Instead, the paper suggests, legal scholars might do well to look to the commonplace normativity of survival: the ceaseless static of making do and getting by. By planning and organizing around some of the ways that people have lived the pandemic, legal scholars might perhaps become attuned to possible ways of living lawfully without casting sectors of the population into surplus.Download the essay from SSRN at the link.
December 16, 2020
Leeming on Lawyers' Use of History, from Entick v. Carrington to Smethurst v. Commissioner of Police @SydneyLawSchool
Lawyers use history in different ways. This is partly because judges are directed to decide consistently with what has been decided before, such that continuity with the past is a matter of legal duty. But, as Maitland said, historical research serves the purpose of explaining and therefore lightening the pressure that the past exercises on the present, and the present upon the future. This article considers – including by reference to images of original documents – the multiplicity of ways in which lawyers use history, including the need for a contextual understanding of judgments, the deployment of expert evidence by legal historians, and the haphazard and imperfect reporting of judgments. It considers three quite different sources of Entick v Carrington, including one manuscript only recently published, and how that decision has been used to address modern disputes.Download the article from SSRN at the link.
December 14, 2020
This Article examines the history of a Vietnam War-era case: the court-martial of Dr. Howard B. Levy. The U.S. Army court-martialled Dr. Levy for refusing to teach medicine to Green Beret soldiers and for criticizing both the Green Berets and American involvement in Vietnam. Although the Supreme Court eventually upheld Levy's conviction in Parker v. Levy, its decision obscures the political content of Levy's court-martial and its relationship to the war. At the court-martial Levy sought to defend himself by showing that his disparaging remarks about the Green Berets, identifying them as "killers of peasants and murderers of women and children," were true and that his refusal to teach medicine to Green Beret soldiers was dictated by medical ethics, given the ways in which the soldiers would misuse their medical knowledge. Ultimately, Levy put the war itself on trial by arguing that had he trained the soldiers he would have abetted their war crimes. This Article seeks to recapture the history of the Levy case as a case about the Vietnam War. Yet the case was also about much more. The Article shows how imagery evoking beliefs about race and racial difference, war, frontier violence, and medicine and healing all came into play in the Levy case. It also explores the manner in which the court-martial became a forum in which the Vietnam War and aspects of U.S. Army policy and conduct were debated, and in which that debate was eventually suppressed. Ultimately, this Article begins the exploration of how American legal institutions coped with the crisis of political and moral legitimacy that they confronted in the late 1960s.Download the article from SSRN at the link.
This Article presents the findings of a content analysis of 86 family law casebooks published in the United States from 1960 to 2019. Its purpose is to critically assess the discipline of family law with the aim of informing our understandings of family law’s history and exposing its ideological foundations and consequences. Although legal thinkers have written several intellectual histories of family law, this is the first quantitative look at the field. The study finds that coverage of marriage and divorce in family law casebooks has decreased by almost half relative to other topics since the 1960s. In contrast, pages dedicated to child custody and child support have increased, more than doubling their relative share. At the same time, the boundaries of family law appear to remain quite stubborn. Notwithstanding sustained efforts by family law scholars and educators to restructure the field of family law so that it considers additional domains of law affecting families (such as tax, business, employment, health, immigration, and government benefits), the core of the academic field of family law has remained relatively static in the past 60 years. Marriage, divorce, child custody, and child support continue to dominate the topics presented in family law casebooks, representing 55% to 75% of their content since the 1960s.Download the article from SSRN at the link.
December 9, 2020
Serban and Ciobanu on Law, History, and Justice in Romania: New Directions in Law and Society Research
This special issue of the Journal of Romanian Studies examines law as a social institution and the ways in which it intersects with the larger social, historical, political and economic world. The articles included here mostly explore the intersections between law, history, and justice, reject positivist and doctrinal analyses of law, and focus on “living law” and the complex interactions between law and social issues, including how law is created, interpreted and implemented, and how individuals and organizations live, shape and evade it in everyday interactions within and outside of the state. We bring together scholars from several disciplines in humanities and social sciences, including anthropology, comparative literature, history, political science, socio-legal studies, and sociology. Regardless of their academic field, the contributors engage in interdisciplinary studies of “law in action” located in various historical settings and different types of political regimes.Download the article from SSRN at the link.