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

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

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

Download the essay from SSRN at the link.

Mendenhall on Jeffrey Rosen's Depiction of Louis Brandeis as the Jeffersonian Jurist @allenmendenhall

Allen Mendenhall, Faulkner University School of Law, is publishing The Jeffersonian Jurist? a Reconsideration of Justice Louis Brandeis and the Libertarian Legal Tradition in the United States in volume 9 of the Elon Law Review (2017). Here is the abstract.

This article explores Jeffrey Rosen’s depiction of Justice Brandeis as a “Jeffersonian prophet,” “the leader of a Jeffersonian tradition,” and “the Jewish Jefferson” to examine the meaning of the term “libertarian” in the context of American constitutional jurisprudence. It argues that Rosen unsettles the characterization of Brandeis as non-libertarian or anti-libertarian and, consequently, destabilizes the very meaning of “libertarianism” as that term is used by self-described libertarians in current scholarship about American constitutionalism. Whether Brandeis was a pure or true libertarian does not concern me. What interests me is the way in which scholars have invoked Brandeis to delimit the nature of libertarian jurisprudence in the American constitutional context. Brandeis simultaneously illuminates and problematizes the designation “libertarian.” His formative influence on American constitutional law elicits dogged attempts to categorize or classify him. He continues to attract admirers and provoke antagonists, both of whom express firm opinions about his association with libertarianism. At stake in the debate over Brandeis’s association with libertarianism is the meaning and import of “libertarian” jurisprudence in our constitutional tradition. Disturbing any consensus regarding the term “libertarian” in the context of American constitutional jurisprudence is significant because it necessitates two questions: what, exactly, is “libertarian” jurisprudence, and who decides? Answers to these questions may disrupt the momentum that self-identified libertarian legal scholars have enjoyed over the last decade and underscore claims to libertarianism that are at odds with that consensus.

Download the article from SSRN at the link.

Matthew Crow's New Book on Thomas Jefferson, Legal History, and the Art of Recollection

Matthew Crow, Hobart and William Smith Colleges, is publishing Thomas Jefferson, Legal History, and the Art of Recollection (Cambridge University Press, 2017). Here is a description of the book's contents from the publisher's website.

In this innovative book, historian Matthew Crow unpacks the legal and political thought of Thomas Jefferson as a tool for thinking about constitutional transformation, settler colonialism, and race and civic identity in the era of the American Revolution. Thomas Jefferson's practices of reading, writing, and collecting legal history grew out of broader histories of early modern empire and political thought. As a result of the peculiar ways in which he theorized and experienced the imperial crisis and revolutionary constitutionalism, Jefferson came to understand a republican constitution as requiring a textual, material culture of law shared by citizens with the cultivated capacity to participate in such a culture. At the center of the story in Thomas Jefferson, Legal History, and the Art of Recollection, Crow concludes, we find legal history as a mode of organizing and governing collective memory, and as a way of instituting a particular form of legal subjectivity.

Sheds new light on Jefferson's thinking through original archival research and situates Jefferson's intellectual practice in a variety of contexts such as legal history and colonialism

Focuses on a single figure while showing the historical and theoretical relationships between legal, political, and historical thought in the early modern Atlantic world and the founding of the United States

Expands our understanding of the history and politics of historical thought by putting Jefferson's use of history in dialogue with the present

Jefferson's Constitution

Gerald Leonard, Boston University School of Law, is publishing Jefferson's Constitutions in Constitutions and the Classics: Patterns of Constitutional Thought from John Fortescue to Jeremy Bentham (D. J. Galligan, ed., Oxford University Press, 2014). Here is the abstract.

Between 1787 and 1840, the Constitution gained a far more democratic meaning than it had had at the Founding, and Thomas Jefferson was a key figure in the process of democratization. But, while more democratic in inclination than many of the Framers, he fell far short of the radically democratic constitutionalism of his most important acolytes, Martin Van Buren and Andrew Jackson. This chapter of Constitutions and the Classics explains that Jefferson was actually much less attached to democracy and more to law as the heart of the republican Constitution. Compared to the 1830s founders of the nation’s democratic Constitution, Jefferson retained much of the elitist, law-oriented, antiparty, slavery-protective (though not pro-slavery) convictions of most of the Framers. He broke somewhat from most of the Framers, however, in taking a radical states’-rights view of the Constitution akin to that of the opponents of the Constitution. In practice, his constitutional politics as Republican leader in the 1790s and president in the 1800s built an important bridge to the democratic Constitution of his successors, even if he never fully embraced that development. And his firm defense of states’ rights, especially in connection with slavery, undermined his occasional endorsement of a very limited antislavery authority in the federal government. The ascendancy of the Jacksonian Democratic party would entrench essentially Jeffersonian constitutional principles of states’ rights and slavery protection but would substitute democratic will for reason and law at the foundation of the Constitution.

Download the essay from SSRN at the link. 

Was Thomas Jefferson the Father of Sally Hemings' Children?

It's back. The "it" is the debate over Thomas Jefferson's relationship with Sally Hemings and whether he fathered her children. At the Chronicle of Higher Education's blog Innovations, Peter Wood discusses a new publication, The Jefferson-Hemings Controversy: Report of the Scholars Commission, and its conclusions. The thirteen scholars involved have scoured the evidence, and, after one year of study, twelve conclude that "honorable people can and do disagree" about whether Mr. Jefferson fathered Ms. Hemings' children. "The allegation is by no means proven." The twelve scholarly jurors deliver their verdict: from skepticsm about Mr. Jefferson's paternity to "almost certainly" that he was not the father.

One scholar contributed a minority report. His assessment? "More likely than not."

The Jefferson-Hemings Controversy is available from Carolina Academic Press. Here from CAP's website is the abstract describing the book.

In 2000, the newly formed Thomas Jefferson Heritage Society asked a group of more than a dozen senior scholars from across the country to carefully examine all of the evidence for and against the allegations that Thomas Jefferson fathered one or more children by Sally Hemings, one of his slaves, and to issue a public report. In April 2001, after a year of study, the Scholars Commission issued the most detailed report to date on the issue.

With but a single mild dissent, the views of the distinguished panel ranged from "serious skepticism" to a conviction that the allegation was "almost certainly false." This volume, edited by Scholars Commission Chairman Robert F. Turner, includes the "Final Report"—essentially a summary of arguments and conclusions—as it was released to the press on April 12, 2001. However, several of the statements of individual views—which collectively total several hundred carefully footnoted pages and constitute the bulk of the book—have been updated and expanded to reflect new insights or evidence since the report was initially released.

(Full disclosure: I have published several titles with CAP as a contributor and/or editor).

More about Thomas Jefferson and Sally Hemings at these sites:

Thomas Jefferson: Monticello

Jefferson's Blood (PBS) 

Thomas Jefferson and Slavery

Aaron Schwabach, Thomas Jefferson School of Law, has published Thomas Jefferson, Slavery, and Slaves, in volume 33 of the Thomas Jefferson Law Review (2010). Here is the abstract.

Thomas Jefferson was a controversial and divisive figure during his own lifetime, and has not grown less so with time. Perhaps no other person had a greater impact on the shaping of the American legal system than Jefferson. And perhaps no other person so completely embodied the contradictions and hypocrisies of the early American approach to questions of slavery and race: as Frederick Douglass put it, "the contradiction in the Constitution." Arguments may and do rage about Jefferson's religious faith or lack thereof, and on his views on federalism and states' rights or on the balance between government and individual liberty. Yet nothing about Jefferson elicits as immediate and emotional a response as his peculiarly complex relationship to the institution of slavery, and consequently to race.

The three sections of this article provide a preliminary exploration of Jefferson's views on slavery and race, and his relationships with slavery and slaves. The first attempts to describe Jefferson's relationship to the institution of slavery, both as a slave owner and as a political figure; as much as possible, it presents Jefferson's views on slavery and on race in his own words. This section also sets forth some of the notable features of the law of slavery in Jefferson's time, and attempts to measure Jefferson's impact on slavery.



The second section discusses the case of Howell v. Netherland, one of the two cases argued by Thomas Jefferson preserved in the law reports of colonial Virginia (compiled by Jefferson himself). Samuel Howell, an indentured servant, brought an action against his master for freedom; Jefferson represented him, unsuccessfully, before a judge (George Wythe, Jefferson's former law professor) who was far less ambivalent than Jefferson in his personal opposition to slavery.



The third section discusses the relationship, or what is known and what is believed and disbelieved about it, between Thomas Jefferson and Sally Hemings. Hemings, a slave, was the half-sister of Jefferson's wife, and he was and is widely believed to have been the father of her children. The lives of Jefferson, Hemings, and their children and other family members are historically interesting. Our latter-day reactions to ongoing discoveries about them are at least as interesting for what they say about us and the degree to which, as a nation, we have succeeded or failed in coming to terms with the divide that defined Jefferson and his times.

Download the article from SSRN at the link.