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.

Kessler on The Origins of "The Rule of Law"

Jeremy Kessler, Columbia Law School, is publishing The Origins of "The Rule of Law" in volume 87 of Law & Contemporary Problems (2025). Here is the abstract.

This Article offers a novel account of the origins of “the rule of law” in the English-speaking world. The phrase itself likely entered the language as a literal translation of the Latin regula juris. Prior to the early seventeenth century, however, the phrase appears to have been used exclusively to refer to the specific legal rule or maxim most relevant to the resolution of a particular kind of dispute. The more general and abstract use of the phrase – to refer to an ideal of political morality or an ideal type of governance – first appeared in the public record around 1610. It did so in the context of English common lawyers’ criticism of royal economic regulation limiting commodity production and circulation. The ideal type of governance that these common lawyers had in mind was the rule of common-law rules. They believed that the “chief subject or object” of these rules was the freedom of Englishmen to dispose of their possessions and professional skills as they wished, and to profit thereby. The earliest advocates of “the rule of law” thus found themselves in the vanguard of a cross-class project that sought to privilege the equal liberty of commodity exchangers over other long-recognized political, religious, and economic entitlements. Consequently, the original rule of law – the rule of common-law rules – came with a set of libertarian and egalitarian expectations, in addition to expectations of publicity, clarity, regularity, and so on. When A.V. Dicey popularized “the rule of law” in the late nineteenth century, he claimed to be restating age-old English common sense. While this claim exaggerated the continuity and coherence of English legal history, Dicey’s conception of the rule of law did indeed track the original, early-seventeenth-century conception in significant respects, including its libertarianism, its market-oriented egalitarianism, and its commitment to the supremacy of the common law. For both Dicey and his early modern precursors, the key to the equal liberty of English subjects was the centrality of common law courts to the settlement of disputes, whether between private parties, or between private parties and public officials. Contemporaneous critics of Dicey’s conception thus rightly understood him to be defending a legal worldview that dated to the early days of competitive capitalism. Yet the appeal of that worldview persists. In the middle of the twentieth century, Anglophone legal philosophers did craft an alternative: a more austere and generalizable conception of the rule of law, one freed from the libertarian, egalitarian, and common-law sensibilities of Dicey and his precursors. While an intellectual coup, this minimalist conception has proven unsatisfying not only to legal practitioners but also to a growing number of legal theorists, including some of the minimalist conception’s erstwhile defenders. For these critics, Jeremy Waldron foremost among them, the minimalist conception fails to capture common-sense understandings of both law and the rule of law. But why does the contemporary common sense to which Waldron appeals so closely echo the concerns of common lawyers in 1610? This Article argues that the answer lies in the limited yet significant socio-economic context shared by early modern common lawyers, late nineteenth century jurists, and contemporary legal theorists. That shared context is the dominance of commodity exchange, which has characterized capitalist societies since their emergence in sixteenth and seventeenth century Europe. The common lawyers who first used the phrase “the rule of law” to denote an ideal of political morality were responding to a profound and lasting social and economic transformation. That transformation – the penetration of commodity exchange into ever more domains of social life – gave rise to demands for the rule of law four hundred years ago, and continues to shape discourse about the rule of law today.

Download the article from SSRN at the link. 

Stipanowich on Malice Toward None; Charity For All: Lincoln's Vision of Reconciliation For All Americans @PeppLaw

Thomas Stipanowich, Pepperdine University School of Law, has published Malice Toward None; Charity for All: Lincoln’s Vision of Reconciliation for All Americans as Pepperdine University Legal Studies Research Paper No. 2024/19. Here is the abstract.

The towering rhetoric of Lincoln’s second inaugural address, delivered in the final months of our country’s bloodiest conflict, framed a vision of the future focused on mutual healing and understanding. However, the achievement of Lincoln’s vision was complicated by the centuries-old common heritage that had divided the nation: Black slavery. Due in large part to Lincoln’s leadership, millions of enslaved Black Americans were now free, and Lincoln’s vision of reconciliation included them all. The premise of this article is that in the course of piloting the ship of state through treacherous waters, Lincoln balanced and juggled a trio of priorities--restoration of the Union, limiting Black slavery, and reconciling his fellow Americans—priorities that, depending on the circumstances, might be mutually reinforcing or in tension. Although Lincoln had long believed that slavery was a great moral wrong, it was not until the second year of his presidency that he decided that in order to restore the integrity of the Union he had to proclaim the emancipation of slaves in the Southern Confederacy—a decision driven by moral as well as pragmatic considerations, and paralleled by his own spiritual journey. The Emancipation Proclamation transformed the character of the Civil War, altering the playing field and dramatically raising the stakes for the slaveholding interests and causing many in the South to see Lincoln as the symbol of an oppressive North, a tyrant who by freeing Black slaves was effectively enslaving Southern whites. Yet throughout the war, paradoxically, Lincoln harbored hopes of promoting reconciliation. For Lincoln, this ultimately meant acknowledging the truth that slavery was the tragic joint inheritance of Americans North and South and that justice demanded its abolition whatever the cost; with this goal accomplished, the way could be open for all Americans to extend mercy to one another and live in peace. Lincoln understood that these goals might not be achieved in his lifetime, but strove mightily nonetheless. The same challenge remains for us today.

Download the essay from SSRN at the link.

Forthcoming from Cambridge University Press: Rhetorical Traditions & Contemporary Law (Brian N. Larson & Elizabeth C. Britt, eds., 2025) @CambridgeUP

Rhetorical Traditions & Contemporary Law (Brian N. Larson & Elizabeth C. Britt, eds., Cambridge University Press, 2025) (Forthcoming). Here is the abstract.

Rhetoric—the arts of practical discourse that we broadly define as the use of symbols to influence belief and action—has something to say about contemporary legal theory and practice. Law and rhetoric in the West were born together nearly 2500 years ago in the Mediterranean. American law has eschewed its rhetorical roots since the late nineteenth century. Denying law’s rhetorical nature helps to construct an impartial façade, shoring up law’s legitimacy. Admitting the rhetorical nature of law would be to admit its partiality, or the point of view inevitably inscribed with every textual choice. At the same time, rhetorical theorists have turned their attention to many subjects other than law. Though many rhetorical scholars today still study legal rhetoric, much of their focus is on high-profile court cases and Supreme Court opinions. This volume’s contributors believe it is time for an expanded conversation between law and rhetoric, placing a broader variety of legal texts in conversation with a broader variety of rhetorical traditions than is typically available. Each essay here makes a connection between one or more significant texts on rhetoric and contemporary legal texts.

Pfeiffer and Hu on Deconstructing Code Words @ASUCollegeOfLaw @uarizonalaw @law_soc

Deirdre Pfeiffer, Arizona State College of Law, and Xiaoqian Hu, University of Arizona College of Law, are publishing Deconstructing Racial Code Words in volume 58 of Law & Society (2024). Here is the abstract.

Racism has become more covert in post-civil rights America. Yet, measures to combat it are hindered by inadequate general knowledge on what “colorblind” race talk says and does and what makes it effective. We deepen understanding of covert racism by investigating one type of discourse—racial code words, which are 1) indirect signifiers of racial or ethnic groups that contain 2) at least one positive or negative value judgment and 3) contextually implied or salient meanings. Through a thematic analysis of 734 racial code words from 97 scholarly texts, we develop an interpretive framework that explains their tropes, linguistic mechanisms, and unique roles in perpetuating racism, drawing from race, linguistic, and cultural studies. Racial code words promote tropes of White people’s respectability and privilege and Racial/Ethnic Minorities’ pathology and inferiority in efficient, adaptable, plausibly deniable, and almost always racially stratifying ways, often through euphemism, metonymy, and othering. They construct a “colorblind” discursivity and propel both “epistemic racism” (racism in knowledge) and systemic racism (racism in action). We further strengthen applications of Critical Race Theory in sociolegal studies of race by presenting a “racial meaning decoding tool” to assist legal and societal measures to detect coded racism.

Download the article from SSRN at the link.

Stanchi on The Rhetoric of Rape Through the Lens of Commonwealth v. Berkowitz @BoydLawUNLV

Kathryn Stanchi, University of Nevada, Law Vegas, School of Law, is publishing The Rhetoric of Rape Through the Lens of Commonwealth v. Berkowitz in the International Journal for the Semiotics of Law. Here is the abstract.

United States law and culture have yet to find a constructive and fair way to talk about rape, especially in “non-paradigmatic” rape cases like acquaintance or date rape. Particularly on college campuses, acquaintance rape is an ongoing, severe problem. Leading legal minds disagree sharply on how to address it. In part, this polarizing debate stems from our collective inability to free our language of the myths and stock stories that plague the subject of rape. No court case better exemplifies the problem than the notorious decision of the Pennsylvania Supreme Court in Commonwealth v. Berkowitz, one of the most widely taught rape cases in the United States. In his empirical study of attitudes on rape, Professor Dan Kahan used the Berkowitz facts in part because they are such an iconic representation of some of the more difficult and troubling issues surrounding acquaintance rape. In that study, Kahan concluded that whether people perceive a story as describing “rape” depends primarily on cultural cognition, meaning the cultural group to which the reader of the story belongs. The text and substance of the law’s definition of rape mattered little. Kahan concluded that if we wish to change outcomes in rape cases, the cultural understandings of rape, more than the law, must change. This essay takes Kahan’s conclusion that cultural understanding is the primary driver of rape outcomes and asks the question: from where does that cultural understanding come? In no small part, this essay argues, those cultural beliefs come from the law, particularly from legal narratives. The facts of judicial opinions reflect the judges’ cultural understanding of rape and then that cultural understanding becomes what rape is (and isn’t). That image of rape then powerfully influences cultural understanding within and outside of law. It is a recursive process by which legal narratives create and reinforce cultural understanding which then itself creates and reinforces legal narratives and so on in an endless loop. In this way, law is neither irrelevant nor innocent in the outcome of rape cases. It is just exerting its influence, often imperceptibly, through rhetoric.

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Williams on Making a Mother: The Supreme Court and the Constitutive Rhetoric of Motherhood @BYULaw

Lucy Williams, Brigham Young University Law School, is publishing Making a Mother: The Supreme Court and the Constitutive Rhetoric of Motherhood in volume 102 of the North Carolina Law Review. Here is the abstract.

Many scholars study Supreme Court decisions, but few are attentive to the rhetoric the Court uses to articulate its holdings. This omission is perplexing: The Court’s rhetoric literally becomes law, but scholars typically fixate on the substance, rather than the rhetoric, of its communications. In this paper, I argue that legal scholars should take more seriously the Court’s role as a rhetorical actor. To illustrate this, I analyze the rhetorical effects of the language the Court uses to describe women and mothers in three contexts: gender discrimination, immigration, and abortion. I begin describing the “inherited language” of motherhood—that is, the narratives, themes, and connotations that are traditionally associated with the idea of motherhood. I then use close readings and discourse analysis of landmark decisions in each substantive area to consider whether and how the Supreme Court engages with that inherited language. My analysis reveals that the Court’s relationship with the inherited language of motherhood varies across contexts. In cases dealing with gender discrimination, the Court anxiously distances itself from traditional narratives about motherhood. In immigration cases, it both embraces and rejects the inherited language. And in abortion cases, its approach has shifted: Initially, the Court strongly disavowed inherited narratives, but in its most recent abortion case, Dobbs v. Jackson Women’s Health Organization, it says very little about mothers at all. My analysis also reveals that the Court’s attitude toward the inherited language of motherhood is often correlated with the substantive legal outcome in a case: In decisions that are more protective of women and their rights, the Court generally rejects the inherited language, but in decisions that are less protective of women’s legal rights, it relies on inherited narratives more frequently. These findings illustrate why legal scholars should be more attentive to the Supreme Court’s rhetoric. The correlation between the Court’s language and substantive outcomes suggests that in some cases, the Court’s rhetorical decisions might influence or even determine its legal analysis. If that is true, then scholars who are interested in case outcomes should study the Court’s language. But the Court’s rhetoric does not just shape case outcomes; it also alters the way we understand, engage with, and view one another. When the Court uncritically invokes traditional narratives and about women and mothers, it may—for better or for worse—perpetuate and reconstitute a world where those outdated assumptions govern. When it actively distances itself from traditional narratives, as it does in gender discrimination cases and early abortion cases, it creates legal and rhetorical space for women to enact various modes of motherhood and womanhood. And when the Court ignores the inherited language of motherhood, it frames legal debates as if women’s interests are not at stake and conceal and, in doing so, obscures women’s perspectives, needs, and lived experiences. Scholars interested in the ways law shapes relationships and facilitates identity formation should pay attention to these constitutive effects.

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.

CFP: Judicial Rhetoric: A Symposium

CFP: Judicial Rhetoric: A Symposium

April 5, 2024

University of Virginia School of Law

In collaboration with Case Western Reserve University

Judicial writing is a genre in flux. While court opinions remain both potent and controversial, many judges explicitly write for lay audiences or to entertain specialists. The resulting documents are quoted by the press, invoked at confirmation hearings, and memed in social media. Judges have been praised or blamed for cracking jokes, sharing hoary vignettes, and reciting song lyrics. Commentators might be forgiven for missing an older approach to judicial writing, one marked by a more technical, even tedious style.

We believe that literary and legal inquiries intersect in the judicial opinion and its rhetoric. Different methodologies are relevant to this joint inquiry, ranging from qualitative historical research to statistical modeling to literary scholarship.

We invite paper proposals for a one-day conference on the topic of law and rhetoric, broadly understood. Consider an illustrative set of questions:

• How do legal decisions incorporate or interact with poetic and narrative genres?
• How do literary genres represent legal argumentation and reasoning?
• What are the effects of new media and technology on legal practice?
• What is the role of the text, the author, and the audience in legal discourse?
• How can judges use rhetoric responsibly, or ethically?
• How does contemporary work on race, gender, sexuality, and ability bring together law and literature?
• How is rhetoric developed, situated, and used in specific institutional contexts (the academy, the court)?

A keynote address will be delivered by Judge Stephanos Bibas of the United States Court of Appeals for the Third Circuit. Judge Bibas was previously a professor of law and criminology at the University of Pennsylvania Carey Law School.

Papers may represent work at any stage of development but should be no more than 5,000 words or 10-12 minutes in length. (A paper may be a digest or portion of a longer work.) A second symposium, with its own call for papers, will be held at Case Western Reserve University in 2025.

By September 15, 2023, please send a short bio of 50-100 words and abstract of 250 words to Richard Re (rre@law.virginia.edu), Walt Hunter (weh38@case.edu), and Martha Schaffer (mws94@case.edu). Accepted papers will be due and circulated among participants in mid-March. Questions are also welcome.

Laguardia on Pain That Only She Must Bear: On the Invisibility of Women in Judicial Abortion Debate @montclairstateu

Francesca Laguardia, Montclair State University, has published Pain That Only She Must Bear: On the Invisibility of Women in Judicial Abortion Rhetoric at 9 Journal of Law and the Biosciences 1 (January/June 2022).

The graphic and bodily facts of a legal question of rights are relevant to the courts, particularly in questions that directly implicate physical bodies and pain, such as right to die cases, or what level of search may be allowable and when. However, in the case of abortion, or more specifically the bodily ramifications of pregnancy and childbirth, this detail is conspicuously absent. This article, relying on a content analysis of over 220 legal opinions on abortion rights, documents this absence of rhetoric. Particularly in the context of other discussions of pain and physical health risks in these very same cases, the complete absence of an acknowledgement of the bodily ramifications of pregnancy and childbirth appears purposeful, if perhaps not conscious. Reviewing prior literature on abortion rights and abortion rhetoric, it is likely that this lack of language both reflects and reinforces an assumption of women’s roles as mothers, a general reluctance to acknowledge the totality of the sacrifices women make in giving birth, and the refusal to acknowledge women’s individual interests as whole persons.

Download the article from SSRN at the link.

Heppner on Rooted: Metaphors and Judicial Philosophy in Artis v. District of Columbia @RLHeppner @IndLRev

Richard L. Heppner, Jr., Duquesne University School of Law, is publishing Rooted: Metaphors and Judicial Philosophy in Artis v. District of Columbia in volume 56 of the Indiana Law Review. Here is the abstract.

This article examines how the metaphors in judicial opinions reveal judicial theories of lawmaking and judicial philosophies, through a close reading of Justice Ginsburg’s majority opinion and Justice Gorsuch’s dissenting opinion in the Artis v. District of Columbia, 138 S. Ct. 594 (2018). Artis was about what the phrase “shall be tolled” means in the federal supplemental jurisdiction statute, 28 U.S.C. §1367. Does a state-law claim’s statute of limitations pause or continue to run while the claim is in federal court? In holding that Congress used “stop the clock” tolling, an “off-the-shelf” legal device that pauses statute of limitations, Ginsburg’s majority opinion uses conventional, mechanistic metaphors to hold that. Gorsuch’s dissent uses more elaborate, agrarian metaphors to argue that Congress used a stricter “grace period” version of tolling because “[w]hen Congress replants the roots of preexisting law in the federal code, this Court assumes it brings with it the surrounding soil.” This article shows that Ginsburg’s mechanistic metaphors describe lawmaking like engineering and bespeak a mode of judicial interpretation based on purpose and precedent—while Gorsuch’s agrarian metaphors hark back to a pastoral conception of lawmaking and interpretation “rooted” in a mythical common-law history and tradition. It then compares Ginsburg’s more understated use of conventional metaphors to Gorsuch’s more performative metaphorical technique, arguing that their different rhetorical strategies reflect both their visions of lawmaking and their own interpretive philosophies. And it closes by showing how close attention to the metaphors they use can reveal the flaws in each approach.

Download the article from SSRN at the link.

Costello on Courtroom Dialogues and Feminist Legal Theory in Irish Literature

R. A. Costello, Dublin City University, School of Law and Government, has published Courtroom Dialogues and Feminist Legal Theory in Irish literature at 20 Irish Studies Review 370 (2020). Here is the abstract.

This article examines the use of courtroom dialogues in two of the leading works of Irish language literature, and how they acted, at the time of their writing, as a mechanism which permitted both author and audience to question societal attitudes to female agency and sexuality – and how they continue to facilitate such critical reflection contemporaneously. Specifically, the piece examines the use of courtroom dialogues in Cúirt an Mheán Oíche by Brian Merriman (CMO) written around 17802 and in An Triail by Máiréad Ní Ghráda (AT) originally performed in 1965 and published in 1978. Both pieces, written nearly two centuries apart, use courtroom dialogues, and the formal mechanisms of testimony and cross-examination to articulate and critique the social subordination of women portrayed in the texts, and to question the restraints on female agency and sexuality imposed by the societies in which their characters exist. Through the works’ use of judicial settings and dialogues both texts articulate a feminist theory of law which aligns with Catherine McKinnon’s dominance theory.

N.B. SSRN indicates the article is not available for download but the author indicates it is available open access. The website shows the content might be available for purchase or through institutional subscription.

McMahon on The Origins of Modern International Law: A Vocabulary for Justifying White Supremacist Colonialism

Thomas McMahon has published The Origins of Modern International Law: A Vocabulary for Justifying White Supremacist Colonialism. Here is the abstract.

What is "modern" international law? This paper reviews the history of the development of modern international law, usually intended to mean the break between the leadership of role of the Roman Catholic popes into an international law decided by states without reference to the popes. In other words, papal bulls of discovery, enslavement and other topics stopped having influence. "Modern" international law was especially important to ensure that countries such as England, France, the Netherlands, Belgium, Germany and Italy could compete to steal the lands and resources of the rest of the world for themselves. In other words, modern international law was invented to give a legal vocabulary and justification for white supremacist colonialism without ever using the words "white supremacy."

Download the paper from SSRN at the link.

Kimble on Scouring Dictionaries: Their Overuse and Misuse in the Courts @ProfJoeKimble @WMUcooleylaw

Joseph Kimble, WMU-Cooley Law School, has published Scouring Dictionaries: Their Overuse and Misuse in the Courts at 41 Dictionaries: Journal of the Dictionary Society of North America 249 (2021). Here is the abstract.

Under the influence of textualism, courts have increasing turned to general dictionaries when interpreting the meaning of contested terms. This resort to dictionaries is suspect for two main reasons: as practiced, it’s arbitrary and unsystematic; and it’s linguistically questionable for determining meaning in a legal context. This article looks primarily at the first point—the courts’ arbitrariness when picking which definition they choose to apply. Using three cases from the Michigan Supreme Court, the article argues that the Court majority cherry-picked a definition that did not seem to fit with an English speaker’s common understanding of the term in context and that ran counter to common sense, practical considerations, or the statute’s purpose.

Download the essay from SSRN at the link.

Waldron on Terrorism, Words, and Asymmetric Warfare @JeremyWaldron @nyulaw

Jeremy Waldron, NYU School of Law, has published Terrorism, Words, and Asymmetric Warfare as NYU School of Law, Public Law Research Paper No. 21-52. Here is the abstract.

Classic examples of terrorism involve murderous attacks on innocent civilians. But what about attacks on military forces, such as the USS Cole attack or the 1983 Marine Barracks attack or, for that matter, the 9/11 attack on the Pentagon? It is tempting to say that calling these attacks "terrorism" represents a cynical extension of the term for political purposes. In this paper, however, I argue that calling such attacks instances of terrorism can be justified by lines of thought that engage with multiple ways in which the fate of military personnel can affect the terrorization and insecurity of civilians. The paper explores five such lines of thought. The idea is not to preclude the view that the extension of the use of "terrorism" is cynical. It often is. But that is not the only possible explanation.

Download the article from SSRN at the link.

Romero on How Judges "Ruin" Victims at Sentencing @MaybellRomero @TulaneLaw @GeorgetownLJ

Maybell Romero, Tulane University Law School, is publishing 'Ruined' in the Georgetown Law Journal. Here is the abstract.

Judges play a critical role in one of the most important states of a criminal case’s adjudication—sentencing. While there have been substantial limitations placed on the discretion judges can exercise in devising punishments, there are little to none on what judges say at such hearings when articulating their rationales for the sentences they impose on convicted defendants. This Article examines the language judges use when sentencing defendants convicted rape, sexual assault, and sexual abuse that describes victims of those crimes and the harms they have sustained, especially language that describes victims as “ruined,” “broken,” or “destroyed.” The use of such language, while apparently meant to be empathetic, only serves to uphold misogynistic understandings of rape and sexual assault and actively harms victims. Judges trying to justify harsh sentences for defendants convicted of sex crimes also engage in shaming and exploitation of victims when saying that defendants have left victims “ruined” at sentencing. In this Article I use traditional scholarly methods of reviewing and analyzing cases and legal doctrine to show why the use of such language is harmful to victims and flouts the purposes of criminal punishment. However, I also engage in autoethnographic methods, relying on my own experiences of rape and sexual assault, as well as prosecuting such cases. This Article also considers how other fields such as medicine and public health have approached destigmatizing other historically stigmatized conditions like substance use and mental illness, arguing that judges should take similar steps to destigmatize being a victim of rape and sexual assault by more carefully considering their language use at sentencing. I conclude by reflecting on the use of personal narrative in legal scholarship and in the classroom and argue that it can be a powerful tool that scholars should more openly embrace.

Download the article from SSRN at the link.

van Domselaar on "Plain" Legal Language by Courts" Mere Clarity, an Expression of Civic Friendship or a Masquerade of Violence? @AdamLawSchool

Iris van Domselaar, Amsterdam Law School, has published ‘Plain’Legal Language by Courts: Mere Clarity, An Expression of Civic Friendship or a Masquerade of Violence? in The Theory and Practice of Legislation (2022). Here is the abstract.

In the Netherlands over the last decade, a range of initiatives have been launched by individual courts, mostly on their own initiative, to make court rulings more comprehensible to average citizens. At the outset, at least from the ‘internal point of view’ of legal practitioners, it might seem striking that these initiatives predominantly address the comprehensibility of legal language as an exclusively linguistic matter, independent of any jurisprudential stance as to what ‘doing law’ should consist of in this context. However, this linguistically-oriented approach is far from eccentric: it dovetails nicely with the dominant approach adopted by the plain legal language movement to make the law more comprehensible to citizens. Against the background of a language as activity view, this article analyses and evaluates the use of comprehensible legal language by courts. To do this, an integrative legal–ethical approach is employed, according to which the content and style of court rulings are inextricably linked. More specifically, the Aristotelian concept of civic friendship is introduced as having potential explanatory force for the practice of plain legal language use by Dutch courts. With reference to actual court rulings, it is argued that this concept allows us to conceive of a ‘plain’ court ruling as a potential expression of a civic-friendly attitude by the judge. In addition, the main dilemmas that civic-friendly judges will be likely to face when writing a comprehensible court ruling are identified. Finally, and on a more critical note, a fundamental concern is raised regarding the practice of plain legal language use by Dutch courts.

Download the essay from SSRN at the link.

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.

 

Abrams on References to Children's Stories and Fairy Tales in Judicial Opinions and Written Advocacy @mobarnews

Douglas E. Abrams, University of Missouri School of Law, has published References to Children's Stories and Fairy Tales in Judicial Opinions and Written Advocacy at 76 Journal of the Missouri Bar 212 (Sept.-Oct. 2020). Here is the abstract.

Professor Abrams authors a column, Writing it Right, in the Journal of the Missouri Bar. In a variety of contexts, the column stresses the fundamentals of quality legal writing — conciseness, precision, simplicity, and clarity.

Download the essay from SSRN at the link.

Wexler on #MeToo and Law Talk @lesley_wexler

Lesley Wexler, University of Illinois College of Law, is publishing #MeToo and Law Talk in volume 29 of the University of Chicago Law Forum (2019). Here is the abstract.

How Americans talk when they talk about #MeToo is often deeply rooted in the law—even in non-legal settings, participants in the #Me-Too conversation often deploy legal definitions of victims and perpetrators, reference legal standards of proof and the role of legal forums, draw explicit or implicit comparisons to legal punishments, and derive meaning from legal metaphors and legal myths. In this essay, I identify and assess the deployment of such law talk to help understand both how legal rhetoric may facilitate the national #MeToo conversation and related legal reforms, but may also simultaneously limit and obscure some of the #MeToo’s more transformative possibilities. Such critical engagement seeks to open space for selective pushback, including initial thoughts on the possibilities of reclaiming colloquial law talk to better match the interests at stake in non-legal settings as well as bringing to the forefront the therapeutic, informative, and structural issues law talk might crowd out.

Download the article from SSRN at the link.