Simonson and Ahmed on Legal Satire in an Age of Political Repression

Jocelyn Simonson, Brooklyn Law School, and Zohra Ahmed, Boston University School of Law, are publishing Legal Satire in an Age of Political Repression in volume 74 of the Buffalo Law Review. Here is the abstract.

Central to the political repression of left social movements is the use of the criminal law to target movement work. One of the blueprints for the Trump Administration's current campaign of collective criminalization is a RICO conspiracy case brought by the Georgia Attorney General against 61 organizers and activists in the movement to Stop Cop City in Atlanta in 2023. In this Article, we tell the story of a creative tactic through which the movement to Stop Cop City resisted the conspiracy and RICO charges against them, charges which were dismissed in December 2025. In doing so, this Article also recounts a longer history stretching back to the first Red Scare of how left social movements have devised creative, strategic, and galvanizing ways to combat repressive criminalization. This Article’s analysis centers on the “People’s RICO,” a 2023 parody crafted by lawyers, organizers, and artists in response to the real RICO prosecution brought by the state that same month. In the short film, the People’s RICO issues its own RICO indictment, condemning a counter-conspiracy between state and private actors. This Article presents a reading of the People’s RICO that connects it to the history of social movements responding to conspiracy prosecutions with their own accusations of counter-conspiracies on the part of those in power. The Article reads the People’s RICO parody on three levels: satire, structural analysis, and legal imaginary. First, the film ridicules the genre of theatrical law enforcement press conferences to expose it for what it really is: the state silencing its opponents. Second, the People’s RICO uses the legal concepts of conspiracy and RICO to identify and indict the law and political economy of the carceral state, found within the tangle of public and private actors advancing their plans for a police training facility for their collective material enrichment. Third, the film imagines another world in which a group of lawyers representing the “People,” can reclaim legal forms and political power to condemn state and corporate actors that have deployed their prosecutorial power for political gain. But that hope for accountability is partial and qualified. The conspiracy and counter-conspiracy accusations between the State’s RICO and the People’s RICO help underscore contemporary anti-carceral movements’ ambivalent relationship to the legal form, and the legal form’s imperfect fit for a nuanced abolitionist praxis. Taken all together, the innovative approach of the People’s RICO should provide inspiration to movement actors, lawyers, and their allies in figuring out how to respond creatively to politically motivated prosecutions: by using the law without capitulating to its narrow horizons.

Bilder on Hater of Kings: Catharine Macaulay's Constitutional Regicide and the Declaration of Independence

Mary Sarah Bilder, Boston College Law School, has published Hater of Kings: Catharine Macaulay’s Constitutional Regicide and the Declaration of Independence as Boston College Law School Legal Studies Research Paper No. 654.

The American Revolution was a constitutional regicide. At first glance it does not much resemble a regicide. Charles I had been executed in 1649. George III went on to live nearly half a century beyond 1776. But read the Declaration of Independence carefully and notice how large the king looms. The “present King of Great Britain” aimed to establish “an absolute Tyranny.” The eighteen usurpations each began with He, the king. The king embodied two particular political typologies: Prince and Tyrant. As such, he was “unfit to be the ruler of a free people.” This constitutional justification for regicide had been developed by British historian Catharine Macaulay in the fourth volume of her History of England. Macaulay’s history from James I to the execution of Charles I provided a historical model, theoretical explanation, and blueprint for would-be patriots. Because of Macaulay, on the far side of the Atlantic, American revolutionaries renounced their allegiance to the king–and to any king–without the complications and consequences of executing one.

Download the article from SSRN at the link.

Rubin and Elinson on Anatomy of Judicial Backlash: Southern Leaders, Massive Resistance, and the Supreme Court, 1954-1958 @LSI_Journal @NIU_Law @UChicagoPoliSci

ICYMI: Ruth Bloch Rubin, University of Chicago, and Gregory Elinson, Northern Illinois University College of Law, have published Anatomy of Judicial Backlash: Southern Leaders, Massive Resistance, and the Supreme Court, 1954–1958 at 43 Law & Soc. Inquiry 944 (2018). Here is the abstract.

Exploiting a range of archival materials, we argue that state-level variation in judicial backlash to Brown was as much the result of strategic choices by southern political elites as it was the ingrained prejudices of the region’s white voters. Presenting case studies of massive resistance in Mississippi, Louisiana, Virginia, and Arkansas, we show that elite agency profoundly shaped the patchwork development of grassroots resistance to integration across the South. These findings challenge the prevailing view that backlash to Brown signaled the unequivocal triumph of racial conservatives. Rather, we argue that the region’s response offered individual members of the southern elite significant autonomy to direct massive resistance in their home states. We also argue that southern lawmakers were responsible for the South’s embrace of popular constitutionalism post-Brown, and thus that it may not have been “popular” at all. We conclude that studies of judicial backlash would do well to reevaluate the assumption that backlash is necessarily a grassroots phenomenon.

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.

Rappaport on The American Creed and the Constitutional Order @uclaw_sf

Aaron J. Rappaport, UC Law, San Francisco, has published The American Creed and the Constitutional Order. Here is the abstract.

Liberal democracy faces an existential threat in the United State today. Political polarization and the rise of far-right extremism both raise questions about the institutional structure’s continuing viability. For the first time in recent memory, Americans are questioning whether the nation might ultimately become undemocratic, illiberal, or both. This essay explores a neglected cause of this political crisis and, more importantly, offers a possible long-term path forward. The underlying roots of the nation’s political crisis lie in the institutional structure of liberal democracy itself. That core structure inevitably generates deep anxieties and grievances, concerns that are intensified by two additional factors –the promulgation of illiberal ideologies, which validate the sense of grievance, and the use of modern propaganda techniques, which spread ideologically-infused messages widely and effectively. Grievances, ideologies and propaganda combine to generate a cycle of radicalization that drives citizens towards extremism. The only real solution to this problem is, perhaps counterintuitively, an ideological one. Only a compelling ideology of liberal democracy can ameliorate the sense of grievance, counter the illiberal ideologies, and inoculate the public against propaganda. The endeavor to identify such an ideology inevitably leads to the American Creed, the core ideals that were thought to underlie the American experiment. But as this essay argues, the American Creed as conventionally understood is too vague and conflicted to offer a solid foundation upon which to build America’s complex institutional structure. This paper concludes by articulating a set of requirements that a compelling ideology must possess. The effort serves as a preliminary step towards the articulation of a new and more compelling American Creed.

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 @PennJCL @reillysteel @Princeton

Reilly Steel, Princeton University, is publishing Political Threads in Legal Tapestry: A Computational Analysis of Executive Branch Legal Interpretation, 1934–2022 in the University of Pennsylvania 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.

Bottasso, Cerruti, Conti, and Santagata on Sailing Through History: The Legacy of Medieval Sea Trade on Migrant Perception and Extreme Right Voting @UniGenova

Anna Bottasso, Gianluca Cerruti, Maurizio Conti, and Marta Santagata, all of the University of Genoa, have publishing Sailing Through History: The Legacy of Medieval Sea Trade on Migrant Perception and Extreme Right Voting as IZA Discussion Paper No. 16996. Here is the abstract.

In this study we evaluate the role that Mediterranean Medieval trade with Africa and the Middle-East still plays today in Italian politics by shaping the attitudes towards migrants of individuals that live close to Medieval ports. Trade connections between Medieval ports and Muslim Africa and Middle East might have indeed favoured the emergence of cultural traits that helped the interaction with foreigners from different cultures, ethnicity and religion a few centuries before with respect to other areas of the country. We use a representative survey of young individuals (aged 20-35) to show that, conditionally on a rich set of geographic, historic, economic and individual controls, people living close to a Medieval port are less likely to think that migrants make Italy an unsafe place as well as to report right-wing voting attitudes. Moreover, we also find, in those areas, a lower probability of xenophobic attacks during the spike of refugees from Siria of 2015. Interestingly, right-wing parties started to attract less votes near Medieval ports only when immigration had become a very salient issue. Similarly, we find a lower probability of Jewish deportations close to Medieval ports during the Nazi occupation, the only period in Italian contemporary history when a minority group was explicitly targeted by the government. This in turn suggests that some deep-rooted cultural traits, although not observed and not clearly at work in society, can become visible when the right historical and political circumstances take place.

Download the article from SSRN at the link.

Jewel on Time As a Flat Circle: Lessons From Past and Present Conspiracy Theories @ljewel @UTKLaw

Lucy A. Jewel, University of Tennessee College of Law, is publishing Time is a Flat Circle: Lessons from Past and Present Conspiracy Theories in volume 3 of the LSU Journal for Social Justice & Policy (2023). Here is the abstract.

This essay analyzes how conspiracy theories were viewed in the 1990s, particularly in the context of the then-existing debate over racial differences in perception, and how they are dealt with today, where prevalent conspiracy theory adherents are White and conservative (QAnon, Pizzagate, and widespread voter fraud) in the 2020 election). In the 1990s, conflict over conspiracy theories was part of a larger culture war involving critical race theory, conspiracy thinking, truth, reason, and post-modern theory. These cultural flashpoints are obviously still with us today. But now, high-profile persons holding false, unreasonable beliefs often hail from the right and are assailed by those on the left. This pattern is visible in congresswoman Marjorie Taylor Greene, who has supported tenets of the QAnon conspiracy theory1 as well as House Republicans who have expressed skepticism and hostility for Covid-19 vaccine efforts.2 This essay begins by looking at two prominent sources from the 1990s––Regina Austin’s Beyond Black Demons & White Devils: Anti-Black Conspiracy Theorizing and the Black Public Sphere3 and Jeffrey Rosen’s The Bloods and the Crits: O.J. Simpson, Critical Race Theory, the Law, and the Triumph of Color in America, which engages in part with Austin’s ideas about conspiracy theories.4 It then contextualizes these two pieces within the raging conflict over Critical Race Theory that was occurring in law schools at the time. Next, the essay discusses trends that have emerged since the 1990s that shed light on the topic. How have things changed and how have they just remained the same? Critical Race Theory remains a tremendous flash point, but the dynamics are different now. There is a greater consensus (as first articulated by critical race theorists) that people do arrive at perceptions differently, based on differing social realities, especially race. On the other hand, there is still strong opposition to the view that race and racism continue to plague U.S. society, which has resulted in recent legislation that restricts the teaching of Critical Race Theory in public education settings. The paper’s next sections discuss post-modernism, critical race theory, and the emergence of conservative post-modernism. How has post-modern and neoliberal culture, refracted into social media forms, revamped how we engaged with “the truth.” After our forty-fifth President won and held office, we live in a world where a post-modern aphorism “truth is not truth” emanates from public figures on the right.5 Because this study raises two important foundational items––conspiracy theories and post-modern modes of thought––this essay delineates an intellectual history that includes post-modernism, neoliberalism, the rise of “conservative post-modernism,” and relevant social-science literature on conspiracy theories. In conclusion, the essay identifies common threads and lessons from the intellectual history. Ultimately, there is some overlap in these folk thought forms, whether they come from the right or the left. If we look at the underlying subtext within conspiracy theories, there are bridges that can be built, particularly in rethinking how we level scapegoating and shame as a form of social control, how people might legitimately feel marginalized, and how unchecked elitism sows seeds of resentment and mistrust.

Download the essay from SSRN at the link.

Newly Published: Pierre Schlag, Twilight of the American State (University of Michigan Press, 2023) @ColoLaw @UofMPress

Pierre Schlag, University of Colorado Law, has published Twilight of the American State (University of Michigan Press, 2023). Here from the publisher's website, is a description of the book's contents.

The sudden emergence of the Trump nation surprised nearly everyone, including journalists, pundits, political consultants, and academics. When Trump won in 2016, his ascendancy was widely viewed as a fluke. Yet time showed it was instead the rise of a movement—angry, militant, revanchist, and unabashedly authoritarian.

How did this happen? Twilight of the American State offers a sweeping exploration of how law and legal institutions helped prepare the grounds for this rebellious movement. The controversial argument is that, viewed as a legal matter, the American state is not just a liberal democracy, as most Americans believe. Rather, the American state is composed of an uneasy and unstable combination of different versions of the state—liberal democratic, administered, neoliberal, and dissociative. Each of these versions arose through its own law and legal institutions. Each emerged at different times historically. Each was prompted by deficits in the prior versions. Each has survived displacement by succeeding versions. All remain active in the contemporary moment—creating the political-legal dysfunction America confronts today.

Pierre Schlag maps out a big picture view of the tribulations of the American state. The book abjures conventional academic frameworks, sets aside prescriptions for quick fixes, dispenses with lamentations about polarization, and bypasses historical celebrations of the American Spirit.

 

UM Press has made the book available for reading online or downloading here. Excellent!

 

Call For Papers: Feeling Democracy: A Conference On Politics and Emotions

Call for Papers – Feeling Democracy: A Conference on Politics and Emotions

The Institute for Research on Women (IRW) at Rutgers University invites paper proposals for Feeling Democracy: A Conference on Politics and Emotions to be held on April 17, 2020.
In January 2017, when millions of women here and abroad took the streets chanting “Show me what democracy looks like! This is what democracy looks like!” they channeled mass anger at the incoming president’s misogyny and racism into worldwide protests. From social media flame wars to fiery political speeches, emotion shapes political rhetoric and action. Politicized emotions can galvanize participation and inspire democratic renewal, such as in Martin Luther King Jr.’s “I Have a Dream” speech in 1963. But emotional appeals can also undermine democratic stability, as demonstrated by the global rise of authoritarian populism.  

Emotions and affect have emerged as a rich field of inquiry in the social sciences and humanities. How can feminism help us make sense of the complex relationship between emotions and democracy? To what extent are solidarities around gender, race, and sexuality catalysts of a passionate democratic politics? Is the expression of emotion in democratic politics only acceptable when it is voiced by certain types of people or communities? We seek to explore these and other related questions in an interdisciplinary conference and welcome national and international perspectives related to our theme. The most compelling papers from the conference will be collected in an edited volume of IRW’s new Feminist Bookshelf series, published by Rutgers University Press.

Submission Guidelines
To submit proposals for individual papers or group sessions, please send the following information to irw@sas.rutgers.edu:

• Name
• Affiliation (please note that independent scholars and activists are welcome to present)
• Mailing address
• Office and cell phone numbers
• Email address
• Equipment needs
• Biography (50 words)
• Title of Presentation
• Abstract (250-300 words)

Deadline for submissions is November 15, 2019. 

Macey on the Central Role of Political Myth in Corporate Law @JonathanMacey @YaleLawSch

Jonathan R. Macey, Yale Law School, has published The Central Role of Political Myth in Corporate Law. Here is the abstract.

This Article shows that a variety of fundamental rules of corporate law are based on a set of myths. The Article explains that these myths play an important role in attracting public acceptance and support for what otherwise would be unpopular and controversial regulations. Thus, one can view the role played by myth in corporate law in a particular context as having either positive or negative social effects depending on one’s opinion of the social value of the underlying legal rule that being buttressed and affirmed by the myth. Four political and sociological myths that continue to play important roles in law are examined. These are: (1) the myth that corporations are owned by their shareholders and represent ownership interests in businesses rather than mere financial claims on the cash flows of those businesses, coupled with certain political (voting) rights that protect those claims; (2) the “shareholder value myth,” that corporate officers and directors are legally required to maximize firm value; (3) that subsidiary companies are independent from and not subject to the control of their parent companies and must remain so in order for the parent company to avoid liability for the contract and tort debts of the subsidiary under various alter ego and piercing the corporate veil theories of corporate law; and (4) the legal regulation of insider trading is justified because of the necessity of creating a “level playing field” among participants in financial markets. Reasonable people can disagree about whether the role played by these myths is normatively positive or negative in each of these contexts.

Download the article from SSRN at the link.

Call For Papers, Political Theology Theology Network Conference, NYC, October 17-19, 2019

Political Theology Network Conference

Columbia University & Union Theological Seminary

New York City

October 17-19, 2019

***Call for Papers Deadline Approaching: June 1
***Funding Available
***Keynote Speakers: Michelle Alexander, Gil Anidjar, Silvia Federici, Lap Yan Kung, Intisar Rabb, Najeeba Syeed

We invite proposals of 200-300 words for projects exploring political theology, broadly understood as an interdisciplinary conversation about intersections of religious and political ideas and practices. Under the sign of “political theology” political theorists have reflected on analogies between political and theological sovereignty, theologians have reflected on the role of memory and hope in political engagement, and cultural theorists have performed ideology critique. We are looking for projects that may draw on but also challenge and transform such classic conversations about political theology. We embrace the vibrant scholarly and activist work being done under the sign of political theology around the world, particularly in contexts of domination. African, Arab, Asian, and Latinx political theological traditions interrogate discourses around “sacred” and “profane” bodies. Indigenous activists organize to dismantle the anthropocentricism and “civilizing mission” of settler states. Scholars of secularism explore the relationship between caste, political culture, and everyday life in India. Black Muslim intellectuals theorize the power of popular protest and the religious nature of #BlackLivesMatter. Anti-colonial theologians from across the globe discuss abolition, anarchy, statelessness, and “higher laws.” Still others invite us to imagine “the end of the world.” We aim to bring together scholars, activists, and artists working with ethnographic, theoretical, theological, legal, historical, literary, and cultural studies methods motivated by a concern for justice. We are particularly interested in proposals that speak to the following themes:

• economies
• ecologies
• legalities
• embodiments
• gender and sexualities
• racializations
• citizenship, migration, place and displacement
• colonialisms (including settler colonialism and relations between settlers and Indigenous peoples)
• critical disability studies
• technologies and artificial intelligence
• fictions and poetics
• public scholarship and creative pedagogies
• religious nationalisms and religious pluralities

Proposals that address these themes from diverse global and religious perspectives are especially welcome. We invite five different presentation formats:

1. Paper presentation or pre-arranged papers panel (we anticipate allotting 90 minutes for each panel)
2. Poster
3. Dialogue or roundtable around a single theme (roundtables that include a combination of academics,
   activists, and representatives of the community are strongly encouraged)
4. Activist workshop (e.g. teach-in, facilitated conversation, skills-building session, etc.)
5. Performative piece (e.g. poem, spoken word, music, drama, dance, film, digital media, creative fiction readings, etc.) (Please submit either a general description of the piece or the performative work itself. Please
   also indicate any preferences for room and A/V setup.

This conference, hosted by Union Theological Seminary and Columbia University, is also funded by grants from the Henry Luce Foundation and Emory University’s Center for the Study of Law and Religion. It hosts a professional network connecting scholars of political theology across varying fields and traditions, and we are eager for proposals to advance conversations about what political theology could look like both in and outside the academy.
Submit proposals to Winfield Goodwin, PTN Conference Coordinator, at ptn19.proposals@gmail.com

Proposals Due June 1, 2019.

A limited amount of funding will be available to offset conference travel costs. Note: this funding is not available to tenured or tenure-track faculty (or equivalent). If you would like to be considered for funding, please indicate that with your submission.

Manners on Congress and the Problem of Legislative Discretion, 1790-1870 (Dissertation)

Jane Manners, New York Historical Society, has published Congress and the Problem of Legislative Discretion, 1790-1870 (Dissertation, Princeton University, 2018). Here is the abstract.

Histories of the nineteenth-century United States often describe a stark divide between law and politics, with law as the agent of the propertied few and politics as the weapon of the masses. As representatives of America’s growing electorate fought to reapportion wealth, these accounts go, lawyers and judges waged a counteroffensive through the courts, using the rule of law to strike down statutes and stave off redistributive change. This dissertation challenges that narrative by examining the legislative logic of Congress during the first century of its existence: a logic, it argues, that increasingly relied on notions that we typically associate with private law, such as precedent, principle, and doctrines of vested rights. Members of Congress turned to these concepts not for the reasons that modern-day political scientists attribute to legislative actors, such as electoral considerations and political pressure (or at least, not only for such reasons), but rather out of a deeply-rooted anxiety about the exercise of their own power and an uncertainty as to what, in America’s decades-old experiment in representative democracy made legislation legitimate. Focusing on two case studies – one examining Congress’s response to the Great New York Fire of 1835 and the other investigating the legislative theory of the radical Republican senator Charles Sumner – this dissertation uses techniques and sources typically identified with the law side of the law/politics divide to make a novel claim: that Congress’s increasing reliance on the ideas and practices of ‘private’ law led its members gradually to limit their own discretion, constricting their ability to legislate for the public good in the process.

Download the dissertation from SSRN at the link.

Acevedo on Witch-Hunts and Crime Panics in America

John Felipe Acevedo, University of Alabama School of Law, has published Witch-Hunts and Crime Panics in America. Here is the abstract.

The term witch-hunt has been tossed around by media commentators, policy experts, and even presidents for years — Nixon, Clinton, and Trump each in turn. Accusations of a witch-hunt are used to signal perceived bias, procedural unfairness, and paranoia. This Article argues that drawing simplistic connections between witchcraft trials and unfairness in the criminal justice system severely hampers our understanding of both historical and contemporary events. It obscures the fact that the term witch-hunt is popularly used to describe two very different types of prosecutions that reflect distinct social and legal problems and demand distinct solutions. On the one hand, witch-hunts target individuals based on their beliefs and are exemplified by the two Red Scares of the early and mid-twentieth century and the persecution of the Quakers in seventeenth century Massachusetts Bay. These are fundamentally distinct from crime panics, which target activity that was already classified as criminal but do so in a way that reveals deep procedural deficiencies in the criminal justice system. Crime panics are exemplified by the Salem witchcraft trials and the “Satanic Panic” of the 1980s and 1990s. In contrast, the ongoing special investigation by Robert Mueller is neither a witch-hunt nor a crime panic. By bringing ongoing criminal law issues into conversation with legal history scholarship on early American witch-hunts, this article clarifies our understanding of the relationship between politics and large-scale criminal investigations, and highlights areas for future reform.

Download the article from SSRN at the link.

Bezemek on The Alien and the State

Christopher Bezemek, University of Graz, Faculty of Law, Institute of Law and Political Science, is publishihng Stranger in a Strange Land: The Alien and the State in the Indonesian Journal of International & Comparative Law (2018). Here is the abstract.

The relationship of the stranger and the political community has traditionally been at the very core of various theoretical, historical and mythical accounts; in defining membership, in answering who is to be included, accepted and (thus) protected, in safeguarding a group’s position and its coherence. The essay argues that many of these accounts still prove to be of great value in a legal and political perspective: None of the questions raised today when it comes to the phenomenon of migration and inclusion are particulary new; rather they have been addressed frequently in sociology and political philosophy over the last centuries. We would be well-advised to rely on a broader perspective, on the teachings of history, and the insights of political philosophy when facing the intellectual and political challenges of our time.

Download the article from SSRN at the link.

Wilson on the Legal Foundations of White Supremacy @Erika_K_Wilson

Erika K. Wilson, University of North Carolina, Chapel Hill, College of Law, has published The Legal Foundations of White Supremacy, 11 DePaul Journal for Social Justice 1 (2018). From the introduction:

The election of former President Barack Obama, the country’s first African-American president, temporarily changed the discourse around race in America. Despite America’s sordid racial history, President Obama’s election was hailed as evidence that race was no longer a salient factor in meting out opportunities—that the country was finally “post-racial.” Indeed, some even went so far as to suggest that his election signified “the gradual erosion of ‘whiteness’ as the touchstone of what it means to be American.” Recent events have upended this “post-racial” narrative. In the wake of the racially charged election of Donald J. Trump and the violent white supremacist rally in Charlottesville, Virginia, race generally and white supremacy specifically are again taking center stage. For many, the reemergence of the kind of overt manifestations of white supremacy that were unveiled in Charlottesville was particularly jarring. It forced many people to grapple with the reality that white supremacy, a phenomenon that many believed had been relegated to a historical footnote, still exists and is stronger than ever. Yet those such as myself who examine race critically have long been aware that the fissures caused by race generally and white supremacy specifically, never went anywhere, notwithstanding the election of the country’s first self-identified African-American president. Race generally and white supremacy specifically are embedded into the framework of most American social institutions. As a result, now more than ever, it is imperative that we critically examine all forms and manifestations of white supremacy. This paper focuses on a very important part of white supremacy — the legal foundations of white supremacy. The central thesis of this paper is that American law has historically played a vital role in constructing white supremacy. While America has eliminated overt race-conscious laws that favor whites, the law continues to play a critical role in maintaining white supremacy today. Unless and until we commit to understanding the history of the law in constructing white supremacy and the ways in which modern iterations of law continue to perpetuate white supremacy, white supremacy will remain an enduring feature of American society.

Download the article via the link given.

The Watergate Grand Jury Report Is Now Available

The Watergate Grand Jury report is now available. It has been under seal for nearly 45 years. Here's a link to the material.

A short bibliography about the Watergate scandal.


Books

John Dean, Blind Ambition: The White House Years (1976).

Elizabeth Drew, Washington Journal: Reporting Watergate and Richard Nixon's Downfall (2015).

Stanley Kutler, The Wars of Watergate: The Last Crisis of Richard Nixon (1990).

Bob Woodward and Carl Bernstein, All the President's Men  (1974). The first book about the Watergate break-in by the reporters who broke the story about the cover-up. Made into a 1976 film that starred Robert Redford and Dustin Hoffman.

Bob Woodward and Carl Bernstein, The Secret Man: The Story of Watergate's Deep Throat (2005).


Films and Television

Dick Cavett's Watergate (2014).

Frost/Nixon: The Original Watergate Interviews (1977).

Our Nixon (2013).

Websites

Watergate at 40 (Washington Post)

Watergate.info

Butler and Crawley on Forms of Authority Beyond the Neoliberal State @GriffLawSchool @kscrawling @LawAndCritique

Chris Butler and Karen Crawley, both of Griffith University Law School, have published Forms of Authority Beyond the Neoliberal State: Sovereignty, Politics, and Aeathetics, in Law and Critique (2018). Here is the abstract.

Critical legal scholarship has recently turned to consider the form, mode and role of law in neoliberal governance. A central theme guiding much of this literature is the importance of understanding neoliberalism as not only a political or economic phenomenon, but also an inherently juridical one. This article builds on these con-ceptualisations of neoliberalism in turning to explore the wider historical, cultural and sociological contexts which inform the production of neoliberal authority. The papers in this collection were first presented at the symposium ‘Forms of authority beyond the neoliberal state’, held at the Griffith Law School in December 2017. They consider the role of the corporation, the site of the university, the politics of debt, the genre of prestige television, and the archic sources of state violence, in order to imagine forms of authority which lie beyond neoliberalism as an ideology and a set of practices, and the ensemble of institutions which constitute the neo-liberal state. The contributions draw on social theory, philosophy, cultural studies, legal geography and political theology in exploring new possibilities for cultivating judgement through and beyond the sovereign, political and aesthetic terrains of neo-liberal governance.

Orbach and Huang on Con Men and Their Enablers

Barak Orbach, University of Arizona, and Lindsey Huang, Perkins Coie, LLP, are publishing Con Men and Their Enablers: The Anatomy of Confidence Games in Social Research: An International Quarterly (forthcoming). Here is the abstract.

President Trump’s philosophy for life, business, and politics prescribes the use of “leverage,” “truthful hyperbole,” and “play[ing] to people’s fantasies” to advance zero-sum deals. Many people believe that this philosophy made Trump a successful businessman and the greatest dealmaker in history. Many others believe that, by following this philosophy, Mr. Trump has proven that, with the aid of fixers and other enablers, a con man might escape the rule of law for decades, successfully use confidence schemes in a presidential campaign, and continue using confidence schemes in the Oval Office. We examine why people often disagree about what profit-seeking actions constitute unethical confidence games and about how the legal system should address cons. Con schemes have characteristics of both trade and fraud. Like trade, cons are voluntary exchanges, and, like fraud, cons are voluntary exchanges induced by misleading representations. Fundamentally, cons further voluntary exchanges that are not mutually beneficial. They benefit con men at the expense of their victims. We study the anatomy of confidence games and legal strategies that may reduce the social costs of cons. We argue that the present understanding of cons, as reflected through our legal system, political debates, and the literature, is impaired and that the prevalence of cons warrants greater attention of lawmakers, courts, and scholars.

Download the article from SSRN at the link.

Manderson on From Aestheticizing Politics To Politicizing Art @ANU_Law

Desmond Manderson, ANU College of Law; ANU College of Arts and Social Science; McGill University Faculty of Law, is publishing Here and Now: From Aestheticizing Politics to Politicizing Art in Sensing the Nation's Law: Historical Inquiries into the Aesthetics of Democratic Legitimacy (Mark Antaki, Stefan Huygenbaert, Angela Condello and Sarah Marusek, eds., Springer, 2018) (forthcoming). Here is the abstract.

The nation is not a national construction. It is mediated through representations and particularly through representations with a sensory component. Images therefore are primary means through which a collection identity is established. They serve to constitute myths of belonging; to distinguish friend from enemy, as Schmitt put it. They tell stories; they create models and examples that frame our social existence. But they also generate the icons and symbols whose repetition and familiarity - flags, monuments, even colour combinations - etch habits of feeling and mental associations deep into our psyche.

Download the essay from SSRN at the link.