Rabb on Metacanons: Comparative Textualism @intisarrabb @Harvard_Law

Intisar A. Rabb, Harvard Law School, has published Metacanons: Comparative Textualism as Harvard Public Law Working Paper No. 22-24. Here is the abstract.

This Paper uncovers a striking feature of statutory interpretation that joins the rise of “new new new” textualism on today’s Supreme Court and elsewhere. It reveals the increasing sway of the now infamous canons of construction across two very different legal systems: American law and Islamic law. These two systems of law share many of the same legal canons despite the radically different institutional structures, origins, and commitments of each system historically and today. They are perhaps maximally different. Probing each system individually then juxtaposing the two reveals shared, ‘meta’ features of legal canons between them. To be sure, such comparison may seem improbable, difficult, or meaningless at first blush. But after overcoming hurdles of the improbable, it becomes clear that the existence, continued use, and recent resurgence of legal canons in both systems suggest that the common features of their shared canons—metacanons—play out in almost every interpretation. This Article explores the nexus between the two. The idea of metacanons, beyond showing the value of comparison, helps delineate how and why the current U.S. Supreme Court must choose between using legal canons to bolster rule-of-law coherence or to mediate democratic values. My basic argument is twofold. First, I argue that courts demonstrably have abandoned the notion of court-congress dialogue in applications of legal canons today in ways that resonate closely with the differing structures of Islamic law Muslim jurists in older systems of Islamic law had initially adopted a similar notion but recognized as fictive long ago. Second, I argue that the facts of similar legal canons in disparate legal systems, both lacking in institutional dialogue, meaningfully informs the raging debates about both the means and the ends of statutory interpretation. These facts call for resolution and new approaches to the judicial use of legal canons, with an eye on metacanonical inquiries. In the end, I argue that our era of declining (or fictitious) institutional dialogue between Courts and Congress mean that legal canons in today’s Supreme Court are once again interpretive tools solely for judicial interpreters, who now face a choice. Judges who have dispensed with the myth of dialogue should seek more coherent use of canons to bolster rule-of-law values. Identifying the universal features of metacanons can aid that path. Or, judges should re-open the channels of dialogue and deploy the canons to mediate the ongoing cases and controversies about changing values in light of constitutional norms and congressional preferences. This is a path that Islamic law judges did not (and could not) pursue. But thrown into relief by metacanons, this path offers a unique prospect for advancing American democracy.

Download the article from SSRN at the link.

Mortenson and Gabley on Delegation at the Founding: A Response to the Critics @jdmortenson @nicholas_bagley @ColumLRev

Julian Davis Mortenson and Nicholas Bagley, both of the University of Michigan Law School, are publishing Delegation at the Founding: A Response to the Critics in the Columbia Law Review. Here is the abstract.

This essay responds to the wide range of commentary on "Delegation at the Founding," which is available at http://ssrn.com/abstract=3512154. The critics’ arguments deserve thoughtful consideration and a careful response. We’re happy to supply both. As a matter of eighteenth-century legal and political theory, “rulemaking” could not be neatly described as either legislative or executive based on analysis of its scope, subject, or substantive effect. To the contrary: depending on the relationships you chose to emphasize, a given act could properly be classified as both legislative (from the perspective of the immediate actor) and also executive (from the perspective of the authorizing principal) at the same time. As a formalist matter, the separation of powers objection is thus evanescent—subject to trivial reframing. In making rules pursuant to congressional instruction, administrative agencies are simultaneously exercising both legislative power (by promulgating authoritative legal commands) and also executive power (by implementing Congress’s authoritative instructions). This is *not* a functionalist argument; it is an insistent demand to take formalism seriously: the same government action was understood as both executive and legislative—and always was. As a matter of eighteenth-century governance practice, late eighteenth-century Anglo-American law was awash in legislative delegations. Nor did the adoption of the Constitution mark a change in that practice: its text does not specify new limits on delegation; no one in the ratification process suggested it might be read to do so; and vesting clauses in state constitutions with identically tripartite structures (and explicit separation-of-powers clauses) were understood to permit broad delegations. Early practice, in fact, suggests the Founders harbored no such belief. The First Congress passed dozens of laws delegating wide discretion to the President, to cabinet secretaries, to federal judges, to territorial governors, and to tax officials. No meaningful nondelegation objection was raised to any of these laws—and this at a time when legislators were inventing dubious constitutional arguments at the drop of a hat. The originalist argument for nondelegation doctrine fails on its own terms.

Download the essay from SSRN at the link.

Meyer on Connecticut's Anti-Originalist Constitutions and Its Independent Courts

Linda Ross Meyer, Quinnipiac University School of Law, is publishing Connecticut's Anti-Originalist Constitutions and its Independent Courts in volume 40 of the Quinnipiac Law Review (2022). Here is the abstract.

In recent years, the United States Supreme Court has taken up originalist interpretive approaches to the U.S. Constitution. The Court has become convinced (wrongly, in my view) that a traditional common law-style interpretation of constitutional rights undermines the Court’s authority by overstepping its role, usurping the prerogatives of the democratic branches, and stifling legal development by the states. Instead of reasoning from case to case, treating like cases alike in the usual evolutionary way of the common law, a majority of the members of the Court has insisted that constitutional rights should be frozen by English common law practices or treatises extant during the colonial period, and/or framers’ intentions and/or public understandings of constitutional language in 1789 or 1791 or 1868-70. These various and varying originalist approaches are often justified as providing more certainty in constitutional adjudication. Critics claim, however, that these new “originalisms” have the effect of halting the evolution of constitutional rights at the federal level, eroding stare decisis, and calling into question the continuing validity of some rights and constitutional doctrines that had been generated through prior common law development -- like rights of privacy, qualified immunity, privileges and immunities clause interpretation, retroactivity rules, state action requirements, and sovereign immunity doctrines -- while potentially changing the nature of other constitutional rights to a balance set at an earlier time -- like rights of religious exercise, rights of free speech, and criminal procedural rights. Somewhat ironically, as the originalist reformation takes hold, rights at the federal level are becoming ever more unpredictable and unstable, as the Supreme Court revisits and reevaluates many of its prior decisions in light of the latest originalist theory, or the latest historical scholarship on the colonial or founding period. States, of course, must follow the constitutional decisions of the U.S. Supreme Court, but only as to federal constitutional baselines. State constitutions are free to give their citizens more rights than the federal constitution does, and indeed, a more restrained style of interpreting federal constitutional law is often promoted because of its merit in allowing states more constitutional room to develop their own state constitutional and statutory law. In order to provide a firmer foundation of support for a non-originalist approach to state constitutional adjudication in Connecticut, and to explain why the Connecticut courts should not borrow originalist approaches from federal constitutional cases, as some jurists have argued, this paper makes four assertions: 1) As a matter of Connecticut state constitutional history, it makes no sense to assume as a default rule that the Connecticut Constitution should track the U.S. Supreme Court’s interpretation of the U.S. Constitution (except, of course, where the U.S. Constitution preempts state law). 2) As a matter of Connecticut state constitutional history, it makes no sense to assume that a right not present in the state’s colonial period is not sufficiently deeply rooted in Connecticut history to be protected by Connecticut constitutional law. In other words, colonial or pre-colonial originalism was not the original constitutional methodology in Connecticut. Hence, the failure of a litigant to demonstrate an exactly similar colonial or pre-1818 practice, should not doom a state constitutional argument. 3) As a matter of Connecticut state constitutional history, pre-1818 English common law should also not function as a state constitutional default rule, because Connecticut judges never followed English common law as mandatory authority. 4) Finally, as a matter of Connecticut state constitutional history, Connecticut’s constitutional rights provisions should not be interpreted as merely “codifying” rather than “announcing” constitutional rights, because both the 1818 and 1965 Constitutions were explicitly forward-looking, not backward-looking. In short, a close look at Connecticut constitutional history reveals that the Connecticut Constitution should not be interpreted through an originalist lens, and certainly not through an originalist lens that preferences the colonial or English common law period in the manner of recent U.S. Supreme Court approaches. Instead, the Connecticut courts should reclaim their own essential and historical role as interpreters of Connecticut constitutional and common law on grounds of principle, and on the traditional, common-law-style judicial approach of treating like cases alike. This article provides: 1) an overview of Connecticut constitutional development, demonstrating the future-orientation of Connecticut’s 1818 and 1965 Constitutions, 2) an analysis of the way in which the “historical” aspects of Connecticut constitutional analysis have been interpreted, and misinterpreted, by the Connecticut courts, 3) a suggestion that one of the most unique features of Connecticut’s legal development is a tradition of legal independence from historical authority that encouraged locally-informed, common-law-style interpretive practices by its courts, since Connecticut never “received” the English common law and did not adopt the federal Bill of Rights until well after the “founding” period, 4) suggests that the Constitutions of 1818 and 1965 offer more appropriate temporal points of reference for Connecticut constitutional interpretation than the pre-1818 era, even were the Connecticut courts to take an originalist approach, in part because of the more broadly representative group of framers who were involved (which in 1965 included white women, black men, and many groups traditionally excluded from government, like Catholics, Irish, Italians, Jews, and Poles) and 5) counsels generally against using originalist approaches to state constitutional interpretation as unworkable and uncertain, unfair to litigants without special access to historical sources, and contrary to the common law approach instantiated in core legal principles of reasoned and principled argument, equal treatment, and stare decisis.

Download the article from SSRN at the link.

Newly Published: Cultural Histories of Law, Media and Emotion: Public Justice (Katie Barclay and Amy Milka, eds., Routledge, 2022) @routledgepublishing @KatieEBarclay @AmyMilka

 Just published:

Cultural Histories of Law, Media and Emotion: Public Justice (Katie Barclay and Amy Milka, eds., Routledge Publishing, 2022). Here from the publisher's website is a description of the book's contents.

Cultural Histories of Law, Media and Emotion: Public Justice explores how the legal history of long-eighteenth-century Britain has been transformed by the cultural turn, and especially the associated history of emotion. Seeking to reflect on the state of the field, 13 essays by leading and emerging scholars bring cutting-edge research to bear on the intersections between law, print culture and emotion in Britain across the eighteenth and nineteenth centuries. Divided into three sections, this collection explores the ‘public’ as a site of legal sensibility; it demonstrates how the rhetoric of emotion constructed the law in legal practice and in society and culture; and it highlights how approaches from cultural and emotions history have recentred the individual, the biography and the group to explain long-running legal-historical problems. Across this volume, authors evidence how engagements between cultural and legal history have revitalised our understanding of law’s role in eighteenth-century culture and society, not least deepening our understanding of justice as produced with and through the public. This volume is the ideal resource for upper-level undergraduates, postgraduates and scholars interested in the history of emotions as well as the legal history of Britain from the late seventeenth to the nineteenth century.

Call For Applications: Post-Doctoral Research Positions in Legal History, University College Cork @LawUCC

From Dr. Patrick O' Callaghan, School of Law, University College Cork.

Job Vacancies: Two Post-Doctoral Researchers in Legal History Applications are invited for two Post-Doctoral Researcher/Senior Post-Doctoral Researcher posts based at the School of Law, University College Cork, Ireland for a period of 30 months (2.5 years). 

The researchers will collaborate on the Law and the Inner Self (LAWINSEL) Project, funded by the Irish Research Council. 

The project seeks to better understand the evolution and nature of the idea of the “inner self” in the liberal tradition by viewing it through the prism of legal change from the Middle Ages through to the digital transformations of the 21st century. A core focus of the research will be legal change in the field of personality rights. The researchers will conduct a specific programme of research under the supervision and direction of Dr Patrick O’Callaghan, Principal Investigator (PI) of the project. The ideal candidates will hold a PhD in legal history or a PhD with a substantial legal-historical component. They will have a publication record commensurate with their career stage. 

For one of the posts, an ability to read medieval Latin is desirable. For the other post, an ability to read German legal texts is desirable. A familiarity with the field of personality rights and proficiency in other major European languages are also desirable. Both candidates will have excellent communication, organisation and interpersonal skills. Further details can be found at this link. 

Call For Abstracts: LSU Law Journal for Social Justice and Policy @LSULawCenter @KenLevy2020

                                                                 Call For Papers

 

LSU Law Journal for Social Justice and Policy

November 11, 2022

Virtual

 

The LSU Law Journal for Social Justice and Policy is pleased to announce its Call for Papers for our upcoming symposium on the Industrial Prison Complex System. The Symposium will take place in a virtual format on November 11, 2022. 

 

Submissions can include but are not limited to the following topics:

·      Capital Punishment

·      The Business of Private Prisons

·      Hard Labor as Punishment

·      Implications of the 8^th Amendment

·      Federal v. State v. Private Prisons

·      The implications of the current prison system

·      Restitution for Innocent individuals imprisoned

·      Sentencing Guidelines and the impact on prisons

·      Alternatives to Prison for non-violent offenders

·      Economic Impacts of the Current Prison System

·      Two-Year Anniversary of George Floyd: Where are we at now?

·      Decriminalizing Marijuana

·      Privatization of Probation

·      No Cash Bail v. Cash Bail

 

LJSJP seeks to elevate underrepresented voices in legal academia and to confront pressing social justice issues of the day. Academics at all levels and in all disciplines (not just law) are encouraged to apply.

 

To apply, please submit an abstract of approximately 350-750 words through this form by August 29, 2022.

 

 

 

Choi on Computational Corpus Linguistics

Jonathan H. Choi, University of Minnesota Law School, has published Computational Corpus Linguistics. Here is the abstract.

Scholars and judges increasingly interpret legal text by studying word use in real-world documents, a method known as “corpus linguistics.” But the traditional approach to corpus linguistics encounters several problems. It focuses on word frequencies at the expense of subtler linguistic cues and presents no clear dividing line between correct and incorrect textual meanings. It also requires a variety of subjective and opaque judgment calls, allowing motivated interpreters to cherry-pick the method that supports their favored meanings. This Article proposes a new, computational approach to corpus linguistics. It uses machine learning and natural language processing to algorithmically evaluate word meaning. By measuring the semantic similarity between words, we can answer questions of legal interpretation—for example, by testing whether “judge” is similar to “representative,” and therefore whether judicial elections are governed by the Voting Rights Act. Computational approaches produce quantitative estimates of similarity that reflect the intuitive semantic relationships between words. This Article extracts qualitative implications from these quantitative estimates by benchmarking against a known scale of word similarity, based on H.L.A. Hart’s famous “vehicles in the park” hypothetical. Applying computational corpus linguistics, this Article finds that semantic questions in real-world legal cases rarely give clear answers. Borrowing Hart’s analogy, most cases are closer to asking whether a bicycle is a vehicle than whether a car is a vehicle. Moreover, estimates of similarity vary substantially between corpora, even large and reputable ones. This suggests that the choice of corpus matters more than previously recognized and that traditional corpus linguists must consult multiple corpora to decrease the risk of cherry-picking. These empirical findings have important implications for ongoing doctrinal debates outside of corpus linguistics, suggesting that text is less clear and objective than many textualists believe. The Article develops these implications with discussion on the nature of linguistic meaning in legal interpretation. Ultimately, the Article offers new insights both to theorists considering the role of legal text and to empiricists seeking to understand how text is used in the real world.

Download the article from SSRN at the link.

Dhondt on Bringing the Divided Powers of Europe Nearer One Another: The Congress of Soissons, 1728-1730 @HerakleitosMD @VUB_CORE @GRILI_Ugent

Frederik Dhondt, Research Group CORED (Contextual Research in Law); Legal History Institute/Gustave Rolin Jaequemyns Institute of International Law (GRILI), has published Bringing the divided Powers of Europe nearer one another: The Congress of Soissons, 1728-1730 at 2022 Nuova Antologia Militare III 535-642. Here is the abstract.

This contribution reconstructs the Congress of Soissons (1728-1730), a consequence of the Parisian Preliminaries (31 May 1727), an agreement that prevented the eruption of a general war in Europe between the League of Hanover (France, Britain-Hanover, Dutch Republic) and the League of Vienna (Emperor, Spain, Brandenburg-Prussia). The ‘sleeping’ congress did not generate a final peace agreement. Soissons was a congress of peacekeeping (Burkhardt), and in part contributed to the European culture of peace engineering (Ghervas). Besides the central commercial claims that opposed the Maritime Powers to Spain, the delegations reflected on geopolitical questions from the East Indies to Scandinavia, the Baltic and the Mediterranean. They were solicited by multiple actors of the European Society of Princes (Bély), down to the level of private individuals, who hoped for diplomatic intercession. France’s position as equidistant director of various bilateral and collective talks becomes clear through the itineraries of the delegates between Soissons, Fontainebleau, Compiègne and Versailles. The sociability of the congress is not purely curial or Parisian, but also includes life on the countryside. French archives highlight the material and logistical challenges of turning a regional hub as Soissons into an international one. The Hop Archives, which contain a synthesis of the daily reports of the Dutch delegation, and the British diplomatic archives (State Papers Foreign) are complemented by the press and the letters of George Lyttelton, who spent several months in Soissons on his Grand Tour. Not only this public circulation of news on the congress, but also the material culture of the print resources consulted by the diplomats allow to identify this eighteenth-century meeting place within the broader European republic of books, news and letters.

Download the volume from SSRN at the link. 

Rawlings on The Highwayman's Case: William Wreathocke--Lawyer, Robber, Spy and "Founder of the Present State of Perjury" @QMSchoolofLaw

Philip Rawlings, Queen Mary University of London, has publishing The Highwayman's Case: William Wreathocke - Lawyer, Robber, Spy and 'Founder of the Present State of Perjury'. Here is the abstract.

Of the six lawyers named as participating in The Highwayman's Case, only Wreathocke has left a significant impression, and the case was not the only unusual event in his life, nor the most important. Contemporary sources represent him as standing at the head of a formidable gang of robbers operating in London in the 1730s, and as developing a strategy by which perjured witnesses would provide alibis for any gang members brought to trial. His life contains many of the features that shaped criminal justice in the early eighteenth century, such as the panic over organised crime in London and the idea that lawyers were corrupting the justice system. A decade after The Highwayman's Case, Wreathocke was convicted of highway robbery and transported to the North American colonies for life. At this time, the allegations about perjured witnesses emerged. By the 1740s, he had returned from North America and was living in France and the Low Countries, where he worked as a merchant. When the Jacobite rebellion broke out in 1745, he saw an opportunity to provide information to the British government on the rebels' activities. Although he does not seem to have realised his objective of obtaining a formal pardon for the robbery, he eventually returned to England, where he rebuilt his fortune and died in 1764.

Download the article from SSRN at the link.

Call For Expressions of Interest: Digital Vulnerability in European Private Law (DiVE)

 

 

CALL FOR INTEREST

 

 

 

 

Digital Vulnerability in European Private Law

(DiVE)

 

 

 

In recent years, vulnerability has emerged in legal discourse, in dialogue with other disciplines, as a useful concept to capture the fluid and multilayered nature of the human condition and to question the adequacy of some foundational legal and policy norms. Yet, despite the potential of the notion of vulnerability as a key tool to overcome the limits of legal formalism and paternalism and to foster substantive equality, the legal status and effects of the notion under domestic and European laws are is still quite unclear. In particular, the notion of people’s vulnerability has only seldom been applied to the specific forms of exposure to harm that might arise from interaction with digital technologies. In our current and pervasively digitalized world, we believe it is increasingly important to analyze how digital technologies impact preexisting forms of vulnerability or create new ones, and to understand how the law can prevent or address unequal experiences of technology.

This is what we plan to do with our project ‘Digital Vulnerability in European Private Law’ (DiVE), financed by the Italian Ministry of University and Research from June 2022 to May 2025. The project aims to investigate the notion of digital vulnerability by exploring how this notion stands vis-à-vis traditional paradigms of protection of weaker parties (such as rules on incapacity, consumer protection, data protection, anti-discrimination, equality before the law) and to what extent it might properly capture risks and harms stemming from digital technologies.

Throughout the project, three international conferences will be organized.

·      A first conference will be held in April/May 2023 in Ferrara, to inquiry the very boundaries of the notion of digital vulnerability.

·      A second conference will be held in April 2024 in Rome, to examine how digital vulnerability matters in access to, identity construction and protection of health in the digital sphere.

·      A third conference will be held in March 2025 in Trieste, to scrutinize the impact of digital vulnerability on contractual and tortious remedies.

 

 

 

We are particularly interested in identifying the factual conditions in which digital technology – from the web to social media, from platforms to Artificial Intelligence and Distributed Ledger Technologies – might prove disruptive and challenging for people, and in assessing under what conditions, how and to what extent the notion of digital vulnerability might be translated into claims for special legal protection.

The conferences will be held in person and in English. A few speakers will be invited; the majority of contributors will be selected through calls for papers. In line with the scope of each conference, proposals might explore how digital technologies exacerbate pre-existing vulnerabilities or create new ones, and how the notion of digital vulnerability could be translated in legal terms. Our main field of the research is domestic and European private law, but proposals can come from a variety of disciplines (including political science, sociology, linguistics, philosophy, economics) and can be theoretical or empirical, descriptive or prescriptive, quantitative or qualitative, mono-jurisdictional, comparative or pan-European, or combine methods of analysis. Contributions dealing with areas other than Europe might be accepted as well, on a case-by-case basis.

Proposals for contribution will be evaluated by the project’s scientific committee, which is currently under construction. Besides members of the DiVE team, confirmed members of the Scientific Committee currently include Danielle K. Citron (University of Virginia), Hans-Wolfgang Micklitz (European University Institute), Frank Pasquale (Brooklyn Law School), Teresa Rodríguez de las Heras Ballell (University Carlos III of Madrid), Giovanni Sartor (European University Institute), Reiner Schulze (University of Münster), Gunther Teubner (Frankfurt University), Yingqin Zheng (University of London). The organizers of each conference will bear the cost of accommodation and meals for the participants whose proposals have been accepted. Selected conference papers will be published following successful peer review.

Each conference will be preceded by an autonomous call for papers; the call for papers for the Ferrara conference in May 2023 will be distributed soon.

Please feel free to share and spread the word about this call for interest. The project will soon have its own website, but for the time being, should you have any doubt or question or suggestion, please feel free to contact the Project Officer Giacomo Capuzzo at digital.vulnerability@gmail.com.

 

The DiVE Team

 

Claudia Amodio

(Ferrara University)

Amalia Diurni

(Rome Tor Vergata University),

 

 

 

 

 

Camilla Crea

(Sannio University)

Marta Infantino

(Trieste University)

Loredana Tullio

(Molise University)

 

 

Alberto de Franceschi

(Ferrara University)

Luca Perriello

(Marche Polytechnic University)

Archer on How Racism Persists In Its Power @DeborahNArcher @nyulaw @michlawreview

Deborah N. Archer, New York University School of Law, is publishing How Racism Persists in its Power in volume 120 of the Michigan Law Review (2022). Here is the abstract.

The current moment is not unprecedented. Every generation has experienced the rage, urgency, anger, and exhaustion that drive demands for change. Every generation has collectively and publicly grieved racialized brutality and the loss of Black lives. Every generation has been viscerally reminded of racism’s grinding pain and the systems designed to contain, isolate, and crush Black people, physically and psychologically. Every generation is reminded that our systems are still founded on the white-supremacist belief that Black people have “no rights or privileges” beyond those that white people “choose to grant them.” As this country is forced to confront, once again, the truth of who we are and how we got here, James Baldwin’s searing examination of the architecture and consequences of racism, The Fire Next Time, offers a framework for understanding how racism persists in its power. In many ways, Baldwin’s essays were prophetic, diagnosing the ways racism would continue to manifest, day after day, year after year, and generation after generation. It is a lens that connects the injustices of the past to those of today. The Fire Next Time can offer truth and comfort to those of us seeking to understand the cycles of resistance and retrenchment that allow racial inequality to not only persist but thrive.

Download the article from SSRN at the link.

Sheley and Rosen on The Purloined Debtor: Edgar Allan Poe's Bankruptcy in Law and Letters @zvisrosen @erin_sheley

Erin L. Sheley, California Western School of Law, and Zvi S. Rosen, Southern Illinois University School of Law, are publishing The Purloined Debtor: Edgar Allan Poe's Bankruptcy in Law and Letters in the Yale Journal of Law and the Humanities. Here is the abstract.

This Article represents the first interdisciplinary case study of the Poe bankruptcy as an inflection point in the legal and cultural history of debt. It shows both how the pitfalls of a short, debtor-focused chapter in bankruptcy history gave rise to the system of today, and how Poe’s indebtedness and bankruptcy helped shape the American Gothic literary forms he made famous. Part One compares bankruptcy law in Poe’s time to that of today, also explaining how bankruptcy came to be and why it was revolutionary. Part Two presents a brief life of Poe and collects evidence of the literal and intellectual impact of the law on his life and thought. Turning to his literary work, it argues that Poe’s fixation on the relationship between debt, degeneration, and official naming reflects the impact of the burgeoning bankruptcy system on individual identity in a Gothic framework. Part Three explores Poe’s bankruptcy case from a technical legal perspective, both in the context of the law at the time and hindsight, showing that there were serious conflicts of interest in the case. We conclude by arguing that Poe’s case, read alongside his literary output, reveals both legal and narrative contradictions at the heart of bankruptcy, which the 1841 Act did a poor job of resolving. On the one hand, bankruptcy reframes the identity of the debtor, who becomes the object of a quasi-confessional process. On the other, bankruptcy restores some degree of material agency to the debtor as a subject, often at the expense of creditors.

Download the article from SSRN at the link.

Golia on The Critique of Digital Constitutionalism @AJrGolia @MPILheidelberg

Angelo Golia, Max Planck Institute for Comparative Public Law and International Law, has published The Critique of Digital Constitutionalism as Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2022-13. Here is the abstract.

This article analyses the critical potential of digital constitutionalism using the instruments provided by societal constitutionalism. The central argument is that, in order to address the challenges posed by new technologies, digital constitutionalism should embrace a more explicitly critical discourse, questioning several assumptions of liberal, state-centred constitutional theory. Digital constitutionalism could then be framed as a theory for the digital age and as an opportunity for a reckoning with the inner contradictions of modern constitutional theory. This article has three goals. First, linking different discourses within digital constitutionalism while highlighting its own critical potential. Second, offering some preliminary proposals based on such reflection. Third, bringing digital constitutionalism closer to the broader galaxy of global constitutionalism. After the introduction, section II offers an overview of societal constitutionalism, highlighting the elements of critique toward liberal, state-centred constitutionalism. Section III reconciles societal constitutionalism and digital constitutionalism, focusing on the latter’s definition and three functionally differentiated systems: politics, economy, law. For each of them, it highlights analytical and normative gains and points at proposals to be further developed. Section IV concludes.

 

 

Download the article from SSRN at the link.

Swanson on The Tulsa Race Massacre of 1921: A Lesson in the Law of Trespass @KaraWSwanson @ConnLRev

Kara W. Swanson, Northeastern University School of Law, is publishing The Tulsa Race Massacre of 1921: A Lesson in the Law of Trespass in the Connecticut Law Review. Here is the abstract.

In my remarks today, I am focusing on this symposium’s subtitle: “What’s Law Got to Do with It?” In one sense, the answer to that question is easy. Since 1921, Black Tulsans have been looking to law and lawyers to address harms suffered during the Tulsa Race Massacre, largely unsuccessfully. This starting panel, though, is not about redress, as important as that topic is, but rather about the startling lack of recognition of the Massacre, that is, the seemingly impossible feat of forgetting the racially motivated wholesale destruction of a community. I want to focus on one space of non-recognition, law schools, and particularly, on the property law classroom. US lawyers learn what property is and how the law defines, shapes, and protects it without any knowledge of the Tulsa Race Massacre. Without knowledge of the Massacre, lawyers are ill-equipped to answer “what’s law got to do with it?” We cannot use law to change injustices that we cannot see. The costs of such ignorance on the part of lawyers reach beyond the bounds of Tulsa and “its search for justice,” however, as important as those localized discussions are. To explore these deeper costs, I have rewritten our starting question to ask: what might we learn if property law was taught with knowledge of the Tulsa Race Massacre? My short answer is that we all, as lawyers, would learn about race and property in ways that would not only better equip us to engage in the crucial on-going tasks of reevaluation, reparations, and redress with respect to Tulsa, but also to understand how property works in each community in the United States. The events in Tulsa on May 31 and June 1, 1921 offer new insights into how, as Professor Cheryl I. Harris demonstrated, “rights in property are contingent on, intertwined with, and conflated with race.” As my long answer, I invite you to follow me on a thought experiment into a lesson that is included early in most property courses, a lesson on the law of trespass. By adding the Tulsa Race Massacre to this lesson, we consider Black Americans as successful property owners, a role in which they seldom appear in a property course. I consider how, once students have learned the definition and purpose of trespass doctrine, often considered foundational to the very meaning of property, we could then review the lesson with attention to the events of the Massacre, asking who committed trespass against whose property and what the legal consequences were. The revised lesson encourages us as lawyers to be attentive to our roles in defining and enforcing property rights in racialized ways. By recognizing the conflation of property rights and race in US law, a truth grounded in history, we gain the power not just to address history – as important as that task is – but also to avoid repeating it, that is, to make a different future by disrupting historic relationships that have tied property and power to racial identity.

Download the article from SSRN at the link.

Risinger on The Welles of Belleville: A Black New Jersey Family of Substance in the Nineteenth and Twentieth Centuries

D. Michael Risinger, Seton Hall University School of Law, has published The Wellses of Belleville: A Black New Jersey Family of Substance in the Nineteenth and Twentieth Centuries. Here is the abstract.

The Wells family that is the subject of this article was a free Black family originating in Lancaster County, Pennsylvania in the early 19th Century.. This article follows the Wells family saga over the course of nearly a century and a half, including involvement in the bold act of resistance to the fugitive Slave act of 1850 which occurred in Christiana (Lancaster County) Pennsylvania in 1851, service in the U.S. Colored Troops in the Civil War, family separation and lost children in the period after the war, a surprising reunification after 20 years, an extended family exodus to Newark, New Jersey in the early 1880s, a further exodus as an extended family to Belleville, New Jersey, Newark’s neighbor to the north, in the late 1880s, and a variety of fraternal business and religious activities in New Jersey over 50 years, including the establishment of the first Black church in Belleville in 1886, It is the story of a Black family that persevered and found a way to flourish in the face of the social conditions it encountered over the course of a century and more.

Download the article from SSRN at the link.

Katz on Mary Lou Graves, Nolen Breedlove, and the Nineteenth Amendment @UMichLaw

Ellen D. Katz, University of Michigan Law School, is publishing Mary Lou Graves, Nolen Breedlove, and the Nineteenth Amendment in volume 20 of the Georgetown Journal of Law & Public Policy. Here is the abstract.

This close examination of two cases is part of a larger ongoing project to provide a distinct account of the Nineteenth Amendment. In 1921, the Alabama Supreme Court held the Nineteenth Amendment required that any poll tax be imposed equally on men and women. Sixteen years later, the Supreme Court disagreed. Juxtaposing these two cases, and telling their story in rich context, captures my larger claim that – contrary to the general understanding in the scholarly literature – the Nineteenth Amendment was deliberately crafted as a highly circumscribed measure that would eliminate only the exclusively male franchise while serving steadfastly to preserve and promote social hierarchies more generally, specifically those based on race and gender.

Download the article from SSRN at the link.

Ross on The Foundations of Criminal Law Epistemology @ErgoEditors

Lewis Ross, London School of Economics & Political Science (LSE), is publishing The Foundations of Criminal Law Epistemology in ERGO. Here is the abstract.

Legal epistemology has been an area of great philosophical growth since the turn of the century. But recently, a number of philosophers have argued the entire project is misguided, claiming that it relies on an illicit transposition of the norms of individual epistemology to the legal arena. This paper uses these objections as a foil to consider the foundations of legal epistemology, particularly as it applies to the criminal law. The aim is to clarify the fundamental commitments of legal epistemology and suggest a way to vindicate it.

Download the article from SSRN at the link.

Zietlow on Freedom Seekers: The Transgressive Constitutionalism of Fugitives From Slavery @ProfessorRZ @utoledolaw @NotreDameLRev

Rebecca E. Zietlow, University of Toledo College of Law, is publishing Freedom Seekers: The Transgressive Constitutionalism of Fugitives From Slavery in volume 97 of the Notre Dame Law Review (2022). Here is the abstract.

In the years leading up to the Civil War, fugitives from slavery ("freedom seekers") put their lives on the line to improve their own status and that of their families in their quest for freedom. Freedom seekers were constitutional actors who made constitutional claims with their actions when they transgressed borders from slave states to free spaces, and across Civil War battle lines to volunteer for the Union army. By transgressing these borders, fugitives from slavery triggered constitutional controversy over issues of interstate comity, federalism, citizenship rights, and fundamental human rights, and made rights claims for themselves with their actions. Their actions destabilized the structure of our country, leading to the Civil War. After the war, members of the Reconstruction Congress cited the sacrifices of freedom seekers as they debated measures to protect the rights that they claimed. Freedom seekers engaged in civil disobedience, resisting law that they believed to be unjust and inhumane. In the North, free Black people and their white allies supported freedom seekers by engaging in civil disobedience of their own. The transgressive actions of freedom seekers sparked constitutional controversy during the antebellum era over issues of interstate comity, federalism, citizenship rights, and fundamental human rights, Their actions were central to the antislavery struggle, and their sacrifices send a profound message which inspired other activists and strengthened their cause. Eventually, the Reconstruction Congress enshrined their claims into constitutional law. Until now, fugitives form slavery have largely been absent from virtually all of the legal scholarship about the antebellum and Reconstruction eras. This article seeks to remedy that oversight.

Download the article from SSRN at the link.

Roberts on The Global Red Scare and the Anti-Worker Repressive Model, 1913-1927 @CUHKLaw

Christopher M. Roberts, The Chinese University of Hong Kong Faculty of Law, is publishing The Global Red Scare and the Anti-Worker Repressive Model, 1913-1927 in volume 5 of the Cardozo Journal of International and Comparative Law (2022). Here is the abstract.

This article considers the extensive repressive measures enacted around the world during and in the wake of the First World War. While repressive developments in the World War I and post-war periods have previously been examined in different national contexts, little scholarship has adopted a more global lens. To better organize and consider the relevant developments, this article develops a typology of six different categories of public order governance into which the majority of the repressive measures of the period may be classified: the passage of new laws; the development of new institutions; raids, arrests, prosecutions, and other judicial and administrative measures taken against suspected dissidents; direct suppression via the deployment of state force; the development of new ideological formations; and the creation and strengthening of parastatal organizations. Considering developments around the world during and in the aftermath of World War I with the help of this typology helps to make clear how extensive in both kind and scope the innovations and extensions of repressive public order governance in the period were. Global study of such developments helps to reveal, moreover, how little such measures were solely or even primarily concerned with wartime exigencies, and how much, in contrast, they were concerned with clamping down on labor unrest, socialist agitation, and anti-colonial resistance. The developments of the period are not only a historical curiosity; rather, they continue to inform key components of repressive governance in numerous states today. As such, more directly confronting and addressing the history of such laws is essential to achieving greater respect for human rights in the contemporary world.

Download the article from SSRN at the link.

Craig and Dhonchak on A Feminist Theory of Moral Rights, Creative Agency, and Attribution @craigcarys @AnupriyaDh_19 @Elgar_Law @OsgoodeNews @NLUDofficial

Carys J. Craig, Osgoode Hall Law School, York University, and Anupriya Dhonchak, Faculty of Law, University of Oxford; National Law University, Delhi, are publishing Against Integrity: A Feminist Theory of Moral Rights, Creative Agency, and Attribution in the Research Handbook on Intellectual Property and Moral Rights (Ysolde Gendreau, ed., Edward Elgar) (Forthcoming).

The term “moral rights” captures a collection of personal rights of the author that run parallel to economic copyright interests. These moral rights include the right of attribution (the right to be associated with the work as its author) and the right of integrity (the right to object to modifications of the work that may prejudice the author's honor or reputation). It is generally agreed that moral rights occupy a unique place (the moral high ground, if you will) within the copyright realm, reflecting an intimate and ongoing personal connection between the author and their work that is deserving of acknowledgement and respect. Yet it is not generally recognized that feminist theory has something to say about the nature of this intimate personal connection and the rights that it seemingly entails. This Chapter explores insights that feminist theories can bring to the study and development of moral rights protections in copyright law. We begin by explaining why certain facets of conventional moral rights theory (typically based on the writings of Kant and Hegel) are ill-suited to—indeed inconsistent with—a feminist approach in both concept and effect. Conceptually, they demand and support an individualized and romanticized conception of the (patriarchal) author-figure. In practice, to the extent that strong moral rights of integrity and association limit dialogic engagement and transformation of protected works, they risk suppressing the kind of critical and counter-hegemonic expression that is vital to a feminist political agenda. Employing alternative feminist conceptions of situated selfhood, relationality, and dialogic authorship, we then explore what it might mean to reimagine moral rights in a way that resists claims to exclusion and control, but reflects the personal, social, and political value of creative agency. We present a limited defense of the right of attribution on these terms, and conclude with a call for attribution as feminist praxis.

Download the chapter from SSRN at the link.

Rebeiro on Frederick Douglass and the Original Originalists @RebeiroBradley @BYULaw

Bradley Rebeiro, Brigham Young University Law School, is publishing Frederick Douglass and the Original Originalists in volume 48 of the Brigham Young University Law Review. Here is the abstract.

Constitutional scholars incessantly grapple over the significance of the Constitution’s original meaning. More specifically, they are preoccupied with, on the one hand, what that meaning is (if such meaning exists) and, on the other hand, the exact nature of that meaning’s authority (if any) over the Constitution and its interpreters. But this debate is hardly novel. In fact, one of the most compelling voices in U.S. history was immersed in similar debates and, out of the constitutional sparring of his time, forged an arresting theory of constitutional interpretation. Frederick Douglass, once a fierce opponent of the U.S. Constitution, evolved into a defender of the Constitution with a robust theory of constitutional interpretation that addressed the constitutional evil of slavery. For example, in 1847, Douglass stated: “The Constitution I hold to be radically and essentially slave-holding . . . [t]he language of the Constitution is you shall be a slave or die.” Yet, five years later in his famous speech, “What to the Slave is the Fourth of July?”, Douglass declared: “interpreted as it ought to be interpreted, the Constitution is a glorious liberty document.” Because Douglass was primarily a political and constitutional actor that never wrote a treatise of jurisprudence, his understanding of constitutionalism must be gleaned from his many speeches and other writings. I therefore take on the task of welding together these speeches and writings to demonstrate how Douglass’s theory fuses historical meaning, established legal rules of interpretation, natural rights principles, and a conception of justice into a cohesive approach that addresses the problem of constitutional interpretation and construction. Though Douglass was one of the most prominent political thinkers and constitutional actors of the 19th century, his constitutional thought has been overlooked by most legal scholars and mostly mischaracterized by political scientists. Due to the aforementioned lack of a singular treatise on the subject, as well as Douglass’s constitutional transformation over the course of his life, this comes as no surprise. Legal scholars tend either to dismiss his constitutional theory as incoherent or to assume that Douglass’s reformed theory was not sincere, but merely a smokescreen for political purposes. Others have referred to Douglass as a living constitutionalist or offered wholly new categories to explain Douglass’s position, such as “reform textualism.” However, Douglass’s theory, similar to his contemporaries, may be seen as anticipating the modern shift to originalism. But this claim challenges the conventional scholarly wisdom in two ways. First, the current literature mostly characterizes Douglass as, at the very least, anti-originalist. Second, though Douglass’s theory shares many elements with originalism, originalism’s current formulations leave little room for philosophical inquiry, which Douglass’s theory admittedly does. His theory does not fit perfectly into any of the many variations of originalism today, thereby offering present-day originalists new possibilities. I will thus refer to Douglass’s theory as “natural rights originalism.” Natural rights originalism deviates most importantly in not abandoning the original philosophical principles that animated the Constitution’s framing. This theory, the product of an insatiably inquisitive mind, transformed Douglass’s constitutional thinking—no longer was the Constitution an instrument of oppression, but one of freedom.

Download the article from SSRN at the link.

Ban and Belavusau on Memory Laws @BloomsburyBooks

Marina Bán, University of Copenhagen, and Uladzislau Belavusau, T.M.C. Asser Institute - University of Amsterdam; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law, have published Memory Laws in Bloomsbury History: Theory and Method (2022). Here is the abstract.

This entry provides an ample and detailed analysis on the emerging phenomenon of memory laws. It outlines how these legal measures, the symbols of interaction between history and law, have developed in the last two centuries and how their scope have drastically expanded. It further reflects of the consequences of states’ growing reliance on the legal governance of historical memory. First, by tying memory laws to their impact on different fundamental rights, then by demonstrating how the increasing breadth and potential misuse of these provisions appears in debates around constitutionalism, citizenship and the rule of law. Finally, the contribution highlights how this initially European phenomenon have captured increasing attention around the world and what its future may hold.

Download the essay from SSRN at the link.

ICYMI: Frohnen on Tocqueville's Law: Integrative Jurisprudence in the American Context

ICYMI: Bruce P. Frohnen, Ohio Northern University College of Law, published Tocqueville's Law: Integrative Jurisprudence in the American Context at 39 American Journal of Jurisprudence 241 (1994). Here is the abstract.

This article examines the jurisprudence of nineteenth century scholar and magistrate Alexis de Tocqueville. Best known for his analysis of American democratic society, Tocqueville brought to his work a lawyer’s eye for legal rules and structures, and their impact on public life. Tocqueville’s jurisprudence, integrating moral, political, and historical practices and influences, enabled him to explain the role of law and lawyers in maintaining stability in a society permeated by egalitarian and individualist impulses. Central to this stabilization, according to Tocqueville, were the legalistic norms inculcated through administrative decentralization and the jury system in a society that accorded high status to legal practitioners.

Download the article from SSRN at the link.

Kinsinger on Bringing About a Reformation? Religious Freedom and Canadian Constitutionalism, 1759-1774 @kkinsinger @RunnymedeSoc

Kristopher Kinsinger, Runnymede Society; Cardus, has published Bringing About a Reformation? Religious Freedom and Canadian Constitutionalism, 1759-1774 at 105 SCLR 2d 395 (2022). Here is the abstract.

The human rights and civil liberties guaranteed by the Canadian Charter of Rights and Freedoms did not spring into existence in 1982. Although this assertion might seem trite, the Charter has engulfed how scholars study constitutional rights and freedoms in Canada. As a result, many jurists are not fully aware of the broader history of Canadian civil liberties. This article seeks to remedy this amnesia through a study of the constitutionally significant statutes and documents enacted following the Seven Years’ War which promised varying degrees of religious freedom to British North America’s Roman Catholic population. Geopolitics played an undeniable role in shaping imperial policy regarding religious freedom in Canada. But it would be a mistake to conclude (as the Quebec Superior Court did in its 2021 ruling in Hak c. Procureur général du Québec) that these guarantees were little more than the product of a political calculus. While many colonial leaders in late 18th century Canada appeared to largely value religious freedom for its political utility, others came to articulate a decidedly aspirational vision for these guarantees. It was to the efforts of these latter individuals that the late W.P.M. Kennedy referred when he asserted that this period of history establishes “religious toleration [as] one of the corner-stones of the Canadian constitution”.

Download the article from SSRN at the link.

Rawlings on The Highwayman's Case: John Everett--Soldier, Robber, Publican, Gaoler @QMSchoolofLaw

Philip Rawlings, Queen Mary University of London, School of Law, has published The Highwayman's Case: John Everett - Soldier, Robber, Publican, Gaoler. Here is the abstract.

Of the two parties named in The Highwayman's Case, only John Everett (or Everet) has left a significant trace. Born in Hitchin in 1690, he abandoned his wife and an apprenticeship in around 1709, becoming a soldier, then a court bailiff, a robber, an informer, an alehouse keeper, an inmate of the Fleet prison, a gaoler, a thieftaker, and, finally, around the age of 40, he returned to robbery, was arrested, convicted, and executed. His life provides insights into the relationship between criminals and the justice system. In the 1720s, when Everett was active, the authorities became increasingly concerned about gangs of robbers believed to be infesting London, and breaking these gangs meant depending on robbers like Everett giving evidence against their former comrades. But it was his work as a keeper in the Fleet prison that made him notorious. He was brought before the first parliamentary inquiry into the prisons, and, although never prosecuted, his involvement in the abuse of prisoners brought the financial ruin that, according to Everett, led him to commit his final robbery.

Download the article from SSRN at the link.

Call For Abstracts: Law and Magic II

 Call For Abstracts:  Law and Magic II

 

Do you remember this book? Whether or not you do, the editor (Christine Corcos) is calling for abstracts for essays to fill a second volume of

 

 

 

 

                                                                 

Suggested topics might include, but are not limited to:

·       The law of fortune telling, tarot, phrenology, or other crafty sciences

·       The history of law and magic

·       Law and religion

·       Law as magic

·       Law and magic in popular culture

·       Law and magic in anthropology

·       Literature reviews of law and magic topics

·       Magic in the courtroom (using magic in advocacy)

 

 

 

For your convenience, here’s the table of contents from the first volume of Law and Magic (published 2010).

Loren A. Smith, Law and Magic: An Introduction Out of a Hat

Julie D. Cromer, It’s In the Cards: The Law of Tarot (and Other Fortunes Told)

Craig Freeman and Stephen A. Banning, Rogues, Vagabonds, and Lunatics: How the Right to Listen Cleared the Way For Fortunetellers

Pamela Edwards, Non-Mainstream Religions and the Law

Indra Spiecker genannt Doehmann, The Effects of Freedom of Information Laws on Corruption and the Quality of Decision-Making under U.S., E.U., and German Freedom of Information Laws

Christine A. Corcos,  “Ghostwriters”: Spiritualists, Copyright Infringement, and Rights of Publicity

F. Jay Dougherty, Now You Own It, Now You Don’t: Copyright and Related Rights in Magic Productions and Performances

Jacob Loshin, Secrets Revealed: Protecting Magicians’ Intellectual Property without Law

Florian Faust, Selling Secrets: Legal Problems of the Magic Market

Frederick A. Brodie, The Magic of Civil Procedure

Robert M. Jarvis, The Case of the Magician’s Assistant: McAfoos v. Canadian Pacific Steamships, Ltd.

Jessie Allen, Magical Realism

Wendy J. Turner, The Legal Regulation and Licensing of Alchemy in Late Medieval England

Eric J. Gouvin, On Death and Magic: Law, Necromancy, and the Great Beyond

Susan D. Rozelle, The Type of Possession Is Nine-Tenths of the Law: Criminal Responsibility for Acts Performed under the Influence of Hypnosis or Bewitchment

Garrett Epps,  “When You Awake You Will Feel No Remorse”: Stage Hypnotism and the Law

Peter W. Edge, Unsympathetic Magic: Charitable Status and Magical Practice in the United Kingdom  

Rebekah Heiser Hanley, Principled Conjuring Tails: A Twenty-First Century Lawyer’s View of the History of Animals in Magic

Lisa Johnson, Taking the Rabbit out of the Hat: Let the Animals Disappear from Magic Acts

Noel Marcovecchio, Hocus Ipsa Loquitur: The Affinity between Law and Magic

Kenneth M. Trombly, Conjuring and the Courtroom: All I Needed to Know about Trying Cases I Learned by Doing Magic Shows

We invite abstracts of up to 500 words on any topic linked to law and magic. 

 

Deadline for submission of abstracts: December 31, 2022

Send your submission as well as any questions about the project to: Christine Corcos, Richard C. Cadwallader and Judge Albert Tate Foundation Associate Professor of Law, LSU Law Center,  at ccorcos@lsu.edu

 

We’ll let you know of acceptances no later than January 15, 2023.

 Final essays may be up to 15,000 words in length, not including references, although we might consider some deviations from that length. The deadline for submission of final essays would be December 31, 2023.