Simon on Copyright, Moral Rights, and the Social Self @david__simon @Harvard_Law

David A. Simon, Harvard Law School, is publishing Copyright, Moral Rights, and the Social Self in volume 34 of the Yale Journal of Law and the Humanities (2023). Here is the abstract.

Moral rights—noneconomic rights that enable authors to control how their copyrighted work is divulged, attributed, modified, and withdrawn—are grounded on the Investment Theory: when an author creates a work, she invests part of her self in it. Because the work is an extension of the author’s “self,” special rights—not merely economic rights—are needed to protect it. Although intuitive, the rationale raises two central questions any moral rights theorist must address: how can an author invest her “self” in a work, and how might the law protect this investment? Moral rights scholars have not provided a satisfactory answer to the first question, making the second one difficult to address. This Article argues that an idea from social psychology might help answer the first question and shape how we respond to the second. Rather than some philosophical or abstract conception of the self, the authorial self the law protects is the social one: the self created and maintained through social interaction. On this account, moral rights are tools to present and manage aspects of this social self. They are limited “rights of impression management.” This framing enables two analytical moves. First, it precisifies what moral rights protect (the social self as externalized in the work) and the “harm” they protect against (potential inconsistencies in that self). Second, it provides a framework for discussing how moral rights ought to protect the self from harm, raising the ultimate question of whether and to what extent the Investment Theory is justified.

Download the article from SSRN at the link.

McFarlin on A Copyright Ignored: Mark Twain, Mary Ann Cord, and the Meaning of Authorship @CumberlandLaw @TheCSUSA

Timothy McFarlin, Cumberland School of Law, is publishing A Copyright Ignored: Mark Twain, Mary Ann Cord, and the Meaning of Authorship in volume 69 of the Journal of the Copyright Society of the U.S.A. Here is the abstract.

Did Mark Twain and the Atlantic infringe a copyright belonging to Mary Ann Cord in the story of how enslavers tore her family apart and how she was ultimately reunited with her youngest son? If so, might that long-ignored infringement be remedied today? In 1874, Cord told Twain the heartrending and astounding story of how her family had been ripped from her, and how she was liberated years later by her youngest, Henry, who had become a soldier for the Union. Twain proceeded to write Cord’s story down from memory, organizing the events chronologically, editing it, and describing how she told it. Twain published this manuscript in the Atlantic Monthly as “A True Story, Repeated Word for Word as I Heard It,” for money, under his name alone. Analyzing the questions above — Was this infringement? Could it still be remedied? — this project unfolds in two parts. This first part, “A Copyright Ignored,” focuses on the thorny threshold issue of copyrightability, arguing that Cord was indeed an author who had a common-law copyright in the words she spoke to Twain. The second part, “A Copyright Restored,” published in the Wisconsin Law Review, tackles the issues of infringement and remedy, arguing that Twain and the Atlantic likely did violate Cord’s rights and, further, that a claim by her descendants may still exist today. In this way, her case may set a vital precedent for righting other longstanding wrongs, particularly those against the Black community. Cord’s case could set precedent in other ways, as well. The same key which unlocks her rights can help open us to a deeper understanding of authorship in copyright law. The answer to whether Cord — who it’s said could neither read nor write and who never claimed to be an author — qualifies as one should tell us about more than just copyright’s past. Contrary to the views of many courts and scholars, I argue here that “authorship is as it does.” It’s not merely a self-conscious enterprise. It need not be limited to people like Twain, Austen, and Hemingway. It’s for everyone, and the law should recognize that.

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Guerra-Pujol on Die Adam Smith Probleme

F. E. Guerra-Pujol, Pontifical Catholica University of Puerto Rico; University of Central Florida, has published Die Adam Smith Probleme. Here is the abstract.

The German mathematician David Hilbert famously identified 23 unsolved problems in mathematics in 1900. Following David Hilbert’s example, this paper contributes to the literature on Adam Smith by identifying a number of unsolved problems involving the life and work of the great philosopher-economist Adam Smith. For reference, my list of “Adam Smith problems” will be divided into three broad categories: Smith the flesh-and-blood man, Smith the public intellectual, and Smith the testator. As a result, the remainder of my paper will be organized as follows. Part I explores some open questions regarding various aspects of Adam Smith’s life and life choices. Next, Part II identifies several additional questions regarding Smith’s main works, ideas, and beliefs. Last, Part III will address one last Adam Smith mystery: his decision to have his unpublished works destroyed after his death.

Download the article from SSRN at the link.

Chabot on The Founders' Purse @KexelChabot @mulaw

Christine Kexel Chabot, Marquette University Law School, has published The Founders' Purse as Marquette Law School Legal Studies Paper No. 23-03. Here is the abstract.

This Article addresses a new and impending war over the constitutionality of broad delegations of spending power to the executive branch. In an opening salvo, the Fifth Circuit held that Congress unconstitutionally delegated its power of the purse to the Consumer Financial Protection Bureau, and the Supreme Court has agreed to review its decision this term. Notwithstanding the fact that Congress authorized the Bureau’s budget “by law,” the Fifth Circuit held that this law violated the Appropriations Clause because it granted the Bureau substantial budgetary independence in two key respects: first, it afforded the Bureau broad discretion to self-direct its budget for an unlimited duration, and second, it granted the Bureau permanent funds that were drawn from interest-based earnings of the Federal Reserve system. The Fifth Circuit supported this conclusion with an ambitious but highly selective originalist interpretation of Article I, section 9’s Appropriations Clause. Defenders of the Fifth Circuit’s ruling have likewise justified its holding with formalist and originalist arguments that the Bureau’s budgetary independence amounts to an unconstitutional delegation of legislative spending power. The broader debate about delegation of spending power extends beyond the Bureau and calls into question laws awarding similar budgetary independence to financial regulators such as the Federal Reserve as well as the Biden Administration’s ability to forgive student loans (and spend debt owed the government) “without specific statutory authorization.” Originalist claims to a nondelegation doctrine that limits the duration, generality, and source of spending in laws passed by Congress have missed a critical body of contrary historical evidence introduced by this Article. First, records of the Constitutional Convention show that the delegates approved new and durable congressional revenue and spending powers to support the U.S. government and its credit while declining proposals for general temporal limitations on Congress’s revenue and spending powers. Second, early congresses repeatedly put these new and durable spending powers to use in laws that bypassed all three proffered limitations on duration, generality, and source of funding. To support U.S. credit, and upon the recommendation of Secretary of the Treasury, Alexander Hamilton, early congresses granted an agency known as the Sinking Fund Commission power to self-direct a permanent fund that was drawn from interest-based earnings on debt held by the United States. To establish an affordable new federal government, early congresses also funded a majority of federal officers including core law enforcement officials and even a new agency through permanent and independently directed fees that were paid by private parties. This history shows that Article I, section 9 means what it says and requires only that Congress authorize spending “by law.” Critics who have questioned the constitutionality of broad delegations of spending power have strayed from the lessons of both text and history.

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.

Roberts on A Poetics of Trademark Law @lexlanham @NUSL @BerkeleyTechLJ

Alexandra J. Roberts, Northeastern University School of Law, is publishing A Poetics of Trademark Law in volume 38 of the Berkeley Technology Law Journal (2023). Here is the abstract.

Poetry and trademarks have a lot in common. Both use language to persuade. Both aspire to say much with little. Both deal in ambiguity, though perhaps only poetry is content to reside in it permanently. While poetry is associated with education and erudition, trademarks are considered a lingua franca, readily understood by all. But reading a trademark remains, in the words of Laura Heymann, “at heart, an interpretive exercise.” Poetic devices like rhyme and alliteration play a role in what trademarks mean and how readers of trademarks can locate and articulate that meaning, but their use and interpretation have received little attention in doctrine or scholarship. While applicants and litigants sometimes allege that their marks incorporate poetic devices in support of a claim of distinctiveness, unitariness, or similarity (or the lack thereof), and factfinders sometimes grant credence to those arguments, both groups tend to use literary terms imprecisely. And that imprecision matters. This Article explores the poetics of trademarks. It calls upon several overlapping senses of the word “poetics”: a study of rhetorical devices; a strategy for interpretation; and a structuring principle undergirding trademark law itself. It defines a number of commonly used poetic devices, offers examples from both poetry and trademarks, and discusses federal court and USPTO decisions that consider their effects on protectability or infringement. Poetic devices have the potential to guide factfinders to deeper insight about word marks. The devices discussed offer ways to articulate what and how a mark means—its denotations, connotations, rhythm, music—specifically and precisely. By treating a trademark as a tiny poem, we make space to honor its complexity.

Download the article from SSRN at the link.

Lee on The Judicial Power-Admiralty Clause @FordhamLawNYC

Thomas H. Lee, Fordham University School of Law, is publishing The Judicial Power-Admiralty Clause in The Heritage Guide to the Constitution (3d edition) (forthcoming). Here is the abstract.

This Essay explains the text and original meaning of “all Cases of admiralty and maritime jurisdiction” in Article III of the U.S. Constitution, its background history, its implementation by the First Congress, key judicial precedents interpreting it, and the open question of what Erie doctrine means for the centuries-old historical practice of federal courts applying the maritime law of nations in “all Cases of admiralty and maritime jurisdiction.” Article III does not define what constitute “all Cases of admiralty and maritime jurisdiction.” Understanding this Article III judicial power as a matter of text and original meaning thus requires examination of relevant English, colonial, and Articles of Confederation history; the Constitutional Convention and state ratification conventions; and subsequent judicial precedents. A backwater today, the admiralty and maritime jurisdiction was among the most vital of the nine categories of Article III judicial power in the early United States because of: (1) the need for uniform rules and adjudication of maritime cases for a new coastal nation dependent on maritime trade among themselves and with Europe and its colonies; (2) the negative experience of divergent state admiralty courts during the War of Independence, which created friction among the states and with foreign states and led to the establishment of the first national court of appeals; and (3) the criticality of port customs duties for early federal government revenues.

Download the essay from SSRN at the link.

Roberts on A Man For His Era and For Ours: Cordell Hull, Father of the Federal Income Tax @traceymroberts @CumberlandLaw

Tracey M. Roberts, Samford University Cumberland School of Law, has published A Man for His Era and for Ours: Cordell Hull, Father of the Federal Income Tax at 53 Cumberland Law Review 41 (2022). Here is the abstract.

An 1891 graduate of Cumberland School of Law, Cordell Hull served our country in countless ways. He served as captain of the Fourth Regiment of the Tennessee Volunteer Infantry in the Spanish- American War, as judge for the fifth judicial circuit of Tennessee, as a member of the Tennessee State House of Representatives, the United States House of Representatives, and the United States Senate, and as United States Secretary of State. President Franklin D. Roosevelt referred to him as the “Father of the United Nations.” Hull received the Nobel Peace Prize in 1945 in honor of his work to establish that body. Hull is less well known for his work to establish another important and enduring institution—the federal income tax. In his 1948 memoir, Hull wrote that he doubted that he would be able to render public service equal to his work to establish the income tax system even if he had two lifetimes. This essay explains why Hull regarded the federal income tax as among his chief contributions. First, it outlines Hull’s personal history, his experiences with his mentor, United States Representative Benton McMillin, and Hull’s efforts to pass the Revenue Act of 1913. Second, it discusses the historical, economic, and political context that motivated Hull to introduce the tax reform that sustained the United States through two world wars and made possible widespread economic prosperity in the twentieth century. Finally, it discusses the original impetus for reform, compares the economic conditions from over 100 years ago to those prevailing today, and outlines what it would take to fulfill Hull’s vision and intentions for the federal tax system and the country in the present.

Download the article from SSRN at the link.

Foster on Historical Conceptions of the Express Trust, c. 1600-1900 @David__Foster @UCLLaws @OUPLaw

David Foster, University College London Faculty of Laws, is publishing Historical Conceptions of the Express Trust, c 1600-1900 in Philosophical Foundations of the Law of Trusts (Simone Degeling, Jessica Hudson, and Irit Samet, eds., Oxford University Press, Forthcoming). Here is the abstract.

This chapter discusses the historical and analytical conceptions of the express trust in the period c 1600 – 1900. Particular emphasis is placed upon the historical conception of the trust as a ‘confidence annexed in privity’ and the slow reification of the beneficiary’s right under a trust in the case law and treatise literature of the period. This aspect of the trust’s history is explored through the development of rules governing the exigibility and enforceability of the beneficiary’s right and provides historical context to the more analytical treatments of the trust in the mid-to-late nineteenth century. The chapter concludes with a consideration of the significance of the school of analytical jurisprudence in shaping modern conceptions of the trust – most notably by applying the language of rights in rem and rights in personam to equitable rights.

Download the chapter from SSRN at the link.

Sanger on The Rise and Fall of a Reproductive Right: Dobbs v. Jackson Women's Health Organization @carolsangernyc @ColumbiaLaw

Carol Sanger, Columbia Law School, has published The Rise and Fall of a Reproductive Right: Dobbs v. Jackson Women’s Health Organization at 56 Fam. L. Q. 117 (2023). Here is the abstract.

Although the phrase “Post-Roe Era” is still used by those who want to mark the tremendous loss wrought last June by Dobbs v. Jackson Women’s Health Organization, it is only a matter of time before the present state of reproductive constitutionalism solidifies into the more authoritarian “Dobbs Era.” In these early days of transition, states are still figuring out what they want the legal status of abortion to be, ever since Dobbs overruled both Roe v. Wade and Planned Parenthood of Southeast Pennsylvania v. Casey, returning, in Justice Alito’s words, “the issue of abortion to the people’s elected representatives.” So, should what was formerly regarded as a medical procedure remain so and be legal? Should it be legal and funded? Or should it migrate from a state’s health regulations to the criminal code and be illegal? Or illegal with exceptions? Or illegal with extraterritorial reach? And who should bear the burden of the illegality? Pregnant women, their physicians, anyone who aids or assists them? Resolving these questions is the pressing task of citizens and lawmakers, as answers are now owed to women of child-bearing age—all sixty-four-and-a-half million of them—so that they can know just where they stand under state law should they confront an unwanted pregnancy. As well as provoking questions of “What next?” the Dobbs case also raises the backwards-looking question of “How did this happen?” How could one live (blithely, it now seems) into one’s adulthood secure in the highest level of legal protection around reproduction, only to have it felled with a few determined strokes from Justice Alito’s pen in the Dobbs case? In this regard, it is worth rewinding the reproductive script to look back over the course of the 20th century, to see how American law developed the concept of constitutionally protected reproductive rights. The legislative trajectory began in the 1920s and progressed in roughly twenty-year increments, ending (certainly for the present) almost 100 years later in 2022 with Dobbs, which shredded the right to abortion by denouncing the underlying doctrine of privacy. In this essay I trace the ways in which a series of constitutional cases reflect both social attitudes and legal constraints on reproductive behavior, whether pro-natal or anti-natal, during the twentieth century. The idea here it to follow their trajectory, beginning with the brutal decision in Buck v. Bell (upholding mandatory sterilization of “imbeciles” in 1927), to Skinner v. Oklahoma (reversing compulsory vasectomy of a prisoner in 1942), and then to Griswold v. Connecticut (striking down a ban on contraceptive access for married couples). These cases contributed to the development of reproductive rights, which by the end of the twentieth century culminated in the right to abortion. Roe v Wade established the abortion right as against state criminal prohibitions (1973), followed by Planned Parenthood v. Casey (1992), which upheld abortion’s status as a fundamental right, while seriously expanding the grounds for restricting it. We see Casey at work in two opposing cases, Gonzales v. Carhart (2007), where the Supreme Court upheld a federal ban on a particular abortion procedure and Whole Woman’s Health v Hellerstedt (2016) which struck down burdensome Texas restrictions on abortion. These cases take us to the present, where the rise of reproductive rights has been overtaken by Dobbs, marking an abrupt and decided plunge southward. This plunge leads to a second insight of this Essay. In contrast to nearly all the earlier cases, the analysis in Dobbs does not hold up. The decision lacks the integrity one would expect from a pre-leaked blockbuster that overturned both the law and the vested expectations of citizens for the last fifty years. What truly stings here is how the Court, with its overconfident tone and daring selection of facts, disregards how women and girls have relied upon the holdings in Roe and Casey. There are many ways to critique Dobbs—its theocratic underpinnings, its peculiar historical choices, its doctrinal disregard of precedent, and so on. I focus here on these: first, its disquieting location as the endpoint in the trajectory of its reproductive law cases from the 20th century forward; second, Dobbs’ disregard of women as reproductive agents in the constitutional scheme; and third, its rejection of the developed doctrines of privacy and liberty regarding reproductive practices, an aspect of life that at one time or another envelops most of us. Note: Copyright 2023 American Bar Association. Reproduced by permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Download the essay from SSRN at the link.

James on The Mess of Dillegrout @GB2d @pillsburylaw

Robert A. James, Pillsbury Winthrop Shaw Pittman LLP, has published The Mess of Dillegrout at 26 Green Bag 2d 41 (2022). Here is the abstract.

Anglo-American land law is now founded on free socage tenure, where rights superior to any other landlord are held in exchange for purchase money or other property. A vestigial exception in the UK is the grand serjeanty tenure, which was largely abolished but is still relevant to services rendered to the King or Queen on certain holidays and ceremonies. This article reviews the grand serjeanty services in general and then focuses in detail on the service of providing a bowl of chicken stew at the coronation. The history of the origin, ownership and performance of this rite, and the recipe for the dish itself, are cited as "a window into a world that is hard to see on any other day of the calendar." A supplement to the article describes another serjeanty tenure, that of the King's Champion, who did play a role in the May 6, 2023 coronation of King Charles III--the only service at that ceremony relating to real property ownership. Note: This work is (or will be) published by the Green Bag (www.greenbag.org), which hopes you will find it useful.

Warden on The Louisiana Constitution of 1974: A Reflection @DerekWardenSJD @SU_LawReview48

Derek Warden, Louisiana Supreme Court, is publishing The Louisiana Constitution of 1974: A Reflection in volume 51 of the Southern University Law Review. Here is the abstract.

The year 2023 marks fifty years since the last full constitutional convention in Louisiana. Next year, 2024, will mark the fiftieth anniversary of our state's constitution. This essay reflects on that document and our shared constitutional history. It calls upon Louisiana law schools and journals to celebrate, in its fiftieth year, the document, the framers, and all those whose faith holds the document in existence.

Download the essay from SSRN at the link.

Weinrib on Law, History, and the Interwar ACLU's Jewish Lawyers @OxUniPress @Harvard_Law

Laura Weinrib, Harvard Law School, is publishing Law, History, and the Interwar ACLU's Jewish Lawyers in In Between and Across: Legal History Without Borders (Jacob Katz Cogan & Kenneth Mack, eds., Oxford University Press, Forthcoming). Here is the abstract.

This chapter, for an edited volume on legal history honoring the career of Hendrik Hartog, explores the influence of Jewish lawyers’ identity on the strategies and goals of the interwar ACLU and, more broadly, on the emergence in the United States of a constitutional and court-centered concept of civil liberties. Between World War I and World War II, the ACLU evolved from a radical organization frankly committed to the demise of capitalism to an outspoken proponent of political liberalism and judicially enforceable individual rights. During the same period, nearly all of the ACLU’s lawyers—who increasingly defined the organization’s agenda and steered its activity from direct action to litigation—were Jewish. Many of them believed that the best bulwark against totalitarianism in America was to prohibit state-sanctioned orthodoxy, whether religious or ideological. That principle, however, manifested in vastly different visions of how free speech should be understood and implemented. This chapter evaluates the ways in which their experiences as Jews affected their views on pluralism, state power, minority rights, and judicial review. It focuses on the debate within the ACLU and between the ACLU and Jewish organizations over hate speech, group defamation, and the role of law in countering antisemitism. It argues that for the ACLU’s Jewish lawyers, casting civil liberties as core to American democracy served to deflect accusations of foreignness and to assert their belonging in a shared, if imagined, national heritage.

Download the chapter from SSRN at the link.

Littlewood on Nothing New Under the Sun: Tax Avoidance in Otago in 1856

Michael Littlewood, University of Auckland Faculty of Law, has published Nothing New under the Sun: Tax Avoidance in Otago in 1856. Here is the abstract.

This paper examines a rule against tax avoidance enacted by the legislature of the New Zealand province of Otago in 1856. The tax was a toll collectable by licensed operators of ferries over rivers; and the rule required persons crossing the river to pay the toll, even if they did not use the ferry.

Download the paper from SSRN at the link.

Littlewood on Public Nuisance in Aotearoa New Zealand in 1849

Michael Littlewood, University of Auckland Faculty of Law, has published Public Nuisance in Aotearoa New Zealand in 1849. Here is the abstract.

This paper examines the Constabulary Force Ordinance enacted by the legislature of the New Zealand Province of New Munster in 1849. This is worth doing because the Ordinance is revealing of life in colonial New Zealand at the time.

Download the paper from SSRN at the link.

Barzun and Goldberg on The Nature of the Judicial Process at 100 (Introduction) @UVALaw @Harvard_Law

Charles L. Barzun, University of Virginia School of Law, and John C. P. Goldberg, Harvard Law School, have published Introduction: The Nature of the Judicial Process at 100 as Virginia Public Law and Legal Theory Research Paper No. 2023-46. Here is the abstract.

This short essay introduces a symposium issue of the Yale Journal of Law and the Humanities honoring the centenary of the publication of Benjamin Cardozo’s The Nature of the Judicial Process. The essay explains our motivating rationale for the symposium and then briefly summarizes the essays and comments that comprise it. The papers, which range from the historical to the philosophical to the literary, include contributions from Ken Abraham & G. Edward White, Amalia Amaya, Aditi Bagchi, Shyamkrishna Balganesh, Charles Barzun, John Goldberg, Leslie Kendrick, Irit Samet, Henry Smith, Bernadette Meyler, Konstanze von Schütz, and Benjamin Zipursky.

Download the introduction from SSRN at the link.

Witte on The Protestant Reformation of Constitutionalism @EmoryLaw @OxUniPress

John Witte, Emory University School of Law, is publishing The Protestant Reformation of Constitutionalism at Christianity and Constitutionalism 126-148 (Nicholas Aroney and Ian Leigh, eds., Oxford University Press (forthcoming). Here is the abstract.

The sixteenth-century Protestant Reformation brought far-reaching changes to Western constitutionalism. The Lutheran reformers vested each territorial state with much of the jurisdiction held by the medieval church, arguing that the magistrate was the custodian of both the religious and civil duties set out in the Ten Commandments. They also merged church courts and state courts, placing both legal and equitable power in the hands of conscientious Christian judges. The Anabaptists ascetically withdrew from civil and political life into small, self-sufficient, and often intensely democratic communities governed by simple biblical principles and dialogical forms of internal governance. Despite ample persecution, Anabaptists were fervent champions of religious liberty and separation of church and state. The Calvinist reformers separated the offices of church and state but called both authorities to help create an overtly Christian local polity governed by written constitutions based on the Bible and natural law but with detailed positive laws tailored to local needs. Calvinist also developed robust biblical-based theories of natural and positive rights, whose persistent and pervasive breach triggered the right of resistance and revolution.

Download the essay from SSRN at the link.

Malloy on Adam Smith's Market Jurisprudence @SUCollegeofLaw @SyracuseLRev

Robin Paul Malloy, Syracuse University College of Law, has published Adam Smith's Market Jurisprudence at 73 Syracuse Law Review 159 (2023). Here is the abstract.

Perhaps the most important and fundamental lesson of Adam Smith’s theory of jurisprudence for contemporary lawyers is that successful communities share a commitment to the rule of law and to the primacy of justice. As represented by the metaphor of the impartial spectator, the rule of law requires rational and impartial decision-making in accordance with due process. The rule of law is not merely an expression of economic or political power in some other form. In Smith’s theory, conflating the triadic relationship among law, economics, and politics undermines civic society and destabilizes the very pillars upon which civilization rests. Learning from Smith, we know that law and justice cannot simply be reinterpreted in terms of an economic calculus, nor can law and justice be understood as the mere exercise of power in service of identity politics. When the rule of law becomes confused with economics or politics, justice is in trouble. In the midst of such confusion, the language and mechanics of justice may survive as rhetorical and logical exercises in decision-making, but justice loses its ethical and aesthetic grounding. This loss of ethical and aesthetic grounding ultimately undermines the moral authority of law, reduces voluntary cooperation among people, and undercuts the sentiment of common interest.

Download the article 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.

McClain and Tait on Household Intimacy and Being Unmarried: Family Pluralism in the Novels of Anthony Trollope @ProfLMcClain @BU_Law @athenais1674 @URLawSchool

Linda C. McClain, Boston University School of Law, and Allison Anna Tait, University of Richmond School of Law, have published Household Intimacy and Being Unmarried: Family Pluralism in the Novels of Anthony Trollope at 72 Washington University Journal of Law & Policy 1 (2023). Here is the abstract.

Many critics rightfully claim that the marriage market and an inquiry into its innermost workings are at the heart of Anthony Trollope’s novels, but this Article argues that his novels also depict—on the periphery or sometimes just hiding in plain sight—a set of curiously nonmarital households. These households vary in form, but include widows and widowers living on their own, mothers and daughters living collectively, and male cousins sharing space and the work of daily living. Critics have debated whether Trollope was simply a realistic social historian—chronicling families as he found them— or whether he constructively used literary license to make broader points. On the first reading, Trollope presents a vast ecosystem of family pluralism, a terrain in which multiple kinds of families existed outside of the marital framework. Leaning more into literary imagination, it is possible to suggest that Trollope uses his range of household sketches to facilitate an exploration of how households and families can operate outside of the sexual and financial economies of marriage. In this context, his nonmarital households offer a rich composite portrait of how “functional” families operate, how the strength of intimacy flourishes outside of romantic relationships, and the challenges of maintaining a household outside of the marital norm. This Article offers a study of Trollope’s nonmarital families, with extended analysis of five novels in particular, The Bertrams, Rachel Ray, The Small House at Allington, Ralph the Heir, and Mr. Scarborough’s Family. In so doing, the Article presses on the question of Trollope's approach by exploring how he engages in both undertakings: to capture the range of domestic households both in small villages and the heart of Mayfair, and also to imaginatively explore the family as a site of affective possibility, multiple intimacies, and nonmarital ordering.

Download the article from SSRN at the link.

Littlewood on Sir George Grey's Machiavellian Constitutional and Fiscal Reforms in Aotearoa New Zealand, 1845-1876 @AKLLawSchool

Michael Littlewood, University of Auckland Faculty of Law, has published Sir George Grey’s Machiavellian Constitutional and Fiscal Reforms in Aotearoa New Zealand, 1845–1876. Here is the abstract.

This paper examines the evolution of the New Zealand tax system from 1845 to 1876. The key to this period is the New Zealand Constitution Act 1852 (UK), which was devised by the Governor, Sir George Grey, and which divided the Colony into six provinces. There were hardly any roads, so allowing isolated settler communities a degree of autonomy made obvious sense. Grey’s more sinister aim, however, was to retain control of the purse-strings and thus dictate policy generally. In this he was markedly successful: the Act gave the Governor tight control over the Colony’s two main sources of revenue (land sales and customs duties) and also over the military (which he used to confiscate Māori land). The provinces were free to build and operate roads, wharves, railways, schools, hospitals and so on — but they had to either persuade the Governor to supply funding or pay for them themselves. Twenty years later the difficulties of communication had been largely solved and the Colonial Government, spectacularly insolvent prior to Grey’s arrival, was financially secure. The provinces had served their purpose and in 1876 they were abolished. Since then, New Zealand has had one of the most centralised systems of government and taxation in the world, and the Māori people are still suffering from the catastrophic loss of their land.

Download the article from SSRN at the link.

Weinrib on Law, History, and the Interwar ACLU's Jewish Lawyers @Harvard_Law @OUPLaw

Laura Weinrib, Harvard Law School, is publishing Law, History, and the Interwar ACLU's Jewish Lawyers in In Between and Across: Legal History Without Borders (Jacob Katz Cogan & Kenneth Mack, eds., Oxford University Press, Forthcoming). Here is the abstract.

This chapter, for an edited volume on legal history honoring the career of Hendrik Hartog, explores the influence of Jewish lawyers’ identity on the strategies and goals of the interwar ACLU and, more broadly, on the emergence in the United States of a constitutional and court-centered concept of civil liberties. Between World War I and World War II, the ACLU evolved from a radical organization frankly committed to the demise of capitalism to an outspoken proponent of political liberalism and judicially enforceable individual rights. During the same period, nearly all of the ACLU’s lawyers—who increasingly defined the organization’s agenda and steered its activity from direct action to litigation—were Jewish. Many of them believed that the best bulwark against totalitarianism in America was to prohibit state-sanctioned orthodoxy, whether religious or ideological. That principle, however, manifested in vastly different visions of how free speech should be understood and implemented. This chapter evaluates the ways in which their experiences as Jews affected their views on pluralism, state power, minority rights, and judicial review. It focuses on the debate within the ACLU and between the ACLU and Jewish organizations over hate speech, group defamation, and the role of law in countering antisemitism. It argues that for the ACLU’s Jewish lawyers, casting civil liberties as core to American democracy served to deflect accusations of foreignness and to assert their belonging in a shared, if imagined, national heritage.

Download the chapter from SSRN at the link.

Smith on Originalism and the Meaning of "Twenty Dollars" @msmith750 @uidaholaw @CreightonLawRev

Michael L. Smith, University of Idaho College of Law, is publishing Originalism and the Meaning of 'Twenty Dollars' in volume 56 of the Creighton Law Review. Here is the abstract.

Originalism claims to provide answers, or at least assistance, for those hoping to interpret a Constitution filled with wide-ranging, morally loaded terminology. Originalists claim that looking to the original public meaning of the Constitution will constrain interpreters, maintain consistency and predictability in judicial decisions, and is faithful to ideals like democratic legitimacy. This essay responds with the inevitable, tough question: whether originalism can tell interpreters what the Seventh Amendment’s reference to “twenty dollars” means—both as a matter of original meaning and for interpreters today. While this appears to be an easy question, I demonstrate that rather than telling modern legal actors what “twenty dollars” means, originalism instead leads to a range of highly divergent possibilities. The original meaning of “twenty dollars”—applied today—may mean anywhere from twenty modern dollars, to a little under four hundred dollars, to just about seven thousand dollars. In doing so, I illustrate high-level debates between originalists and their critics, and how these debates tend to stray away from the needs of actual actors. Originalist appeals to construction and distinguishing semantic and legal meaning are cold comfort to the hapless attorney or judge who just wants to know what “twenty dollars” means. Moreover, if originalism cannot tell modern legal actors what “twenty dollars” means, there’s little hope that it will provide meaningful assistance in resolving questions over broader, loaded terms like “due process,” “cruel and unusual punishment,” “equal protection,” and other provisions that draw the bulk of scholarly attention and constitutional litigation.

Download the article from SSRN at the link.

Sandefur on the Origins of the Arizona Gift Clause @TimothySandefur @GoldwaterInst

Timothy Sandefur, Goldwater Institute, is publishing The Origins of the Arizona Gift Clause in the Regent University Law Review. Here is the abstract.

At least 45 state constitutions contain provisions barring the government from giving or lending public resources to private interests. Typically called “Gift Clauses,” they are a legacy of the nineteenth century, when many state and local governments were plunged into economic and political ruin as a consequence of subsidizing private industry. Over time, some state courts have essentially eviscerated them by adopting a lackluster “rational basis” standard, but in other states—notably Arizona—courts have diligently enforced these provisions, establishing precedent that lets government spend money for the public good, but prevents it from transferring taxpayer money or giving away other valuable benefits to private interests. This article examines the origins of the Arizona Constitution’s Gift Clause, and compares it with similar clauses in other state constitutions. Part I describes the philosophical and political concerns animating Gift Clauses. Parts II and III examine the history, focusing on the first and second waves of reform that led to the adoption of these clauses. Part IV discusses the origins of Arizona’s Gift Clause specifically, and draws conclusions relevant to today’s Gift Clause doctrine.

Download the article from SSRN at the link.

Sunstein on Fame and the Canon: Lessons from Connie Converse (with Notes on Liberalism) @CassSunstein @Harvard_Law @Kennedy_School

Cass Sunstein, Harvard Law School; Harvard University, Kennedy School, has published Fame and the Canon: Lessons From Connie Converse (with Notes on Liberalism). Here is the abstract.

Connie Converse, a folksinger from the 1950s, is sometimes described as “the first singer-songwriter.” Her tale raises enduring questions about opportunity, what is lost and what is found, and the role of serendipity and luck. It also offers lessons about canon formation and reformation. It even has something to say about the foundations of liberalism.

Download the essay from SSRN at the link.

Mercer and Black on Inspired Filth: Working Blue in Vaudeville America @UTKLaw @UMemLRev @UBSchoolofLaw

William Davenport Mercer, University of Tennessee, Knoxville, Department of History; College of Law, and Joel Black, University at Buffalo Law School, are publishing Inspired Filth: Working Blue in Vaudeville America in volume 53 of the University of Memphis Law Review. Here is the abstract.

The common law long held that words could be punished if their utterance might cause a breach of the peace. This article thus examines a seemingly simple question: When did American law transform this long-standing rule as it pertained to vulgar, filthy, or “blue,” words and begin to consider the simple utterance of those words as criminal actions in and of themselves? To answer that question, we looked to stand-up comedy and discovered a tradition of regulating filthy words that reached back to the post-Civil War era. There, the regulation of words as obscene coincided with the emergence of sanitized entertainment spaces, epitomized by vaudeville and the increased presence of women and children in public spaces. On these stages “blue” words were illicit; resistance from performers such as Sophie Tucker and Russell Hunting would only confirm the prevalence of this legal regulation. These performers and their regulation invite us to observe a post-war legal transition that was not just about citizenship and individual rights and to recognize that filthy words also underpinned a new legal order. A century before George Carlin, Richard Pryor, and Lenny Bruce famously pushed the boundaries of comic expression, “blue” language stood at the center of efforts to separate ordinary people from their words; the legal protections for speech were made contingent on their capacity to protect, and even generate, the profits of owners, managers, and investors. This post-war transformation of filthy words from common law to statute reminds us that the right to speak has long been subject to an economic hierarchy in which the interests of the wealthy are paramount. As vaudeville reveals, in modern America access to this right has been strongest when words reinforced this hierarchy and weakest when they threatened it.

Download the article from SSRN at the link.

Friedell on Judge Willam Marvin and the Law of Salvage

Steven F. Friedell, Rutgers Law School, has published Judge William Marvin and the Law of Salvage at 12 British Journal of American Legal Studies 2 (2023). Here is the abstract.

This essay explores the salvage decisions rendered by William Marvin during his time as a judge in Key West (1839-45; 1847-63). It also discusses his celebrated treatise on salvage law (1858), which cemented his reputation as one of America’s leading authorities on maritime law. It discusses why Marvin continued to act as a Superior Court judge for over a year after Florida ceased to be a territory. Lastly, it recounts how Marvin superintended the city’s notorious wrecking industry.

Download the essay from SSRN at the link.

Hornby and Akrawi on History Lessons: Instructive Legal Episodes from Maine's Early Years--Episode 3: An Enslaved Man Suing in Federal Court @GB2d

D. Brock Hornby and Emma Akrawi have published History Lessons: Instructive Legal Episodes from Maine's Early Years — Episode 3: An Enslaved Man Suing in Federal Court at 26 Green Bag 2d 101 (2023). Here is the abstract.

In 1837, Lambert Bercier of French Guadeloupe engaged Captain Sylvanus Prince of North Yarmouth, Maine, to transport Bercier's 30-year-old slave Polydore and Bercier's 17-year-old son Eugene to Maine on board the brig Galen. On the voyage, the Captain repeatedly assaulted Polydore. Polydore brought a civil suit for damages in federal court in Portland, Maine. The outcome was Polydore v. Prince, an 1837 federal decision by Judge Ashur Ware that is often ignored and sometimes mischaracterized, holding an enslaved man could sue in federal admiralty court for floggings on the high seas. This article revisits the case, drawing from recently accessed archived court documents.

Download the article from SSRN at the link.

Goluboff on "Charlottesville" as Legal History @RisaGoluboff @UVALaw

Risa L. Goluboff, University of Virginia School of Law, is publishing “Charlottesville” as Legal History in volume 1 of the Journal of American Constitutional History (2023). Here is the abstract.

This article was originally a plenary lecture at the American Society for Legal History 2022 Annual Meeting. It offers a preliminary legal history of the white supremacist and anti-Semitic violence that took place in my hometown of Charlottesville, Virginia on August 11 and 12, 2017, as well as a meditation on the process of writing such a history. It explores questions of autobiography, legal history methodology, legal normativity, narrative framing, and the role of law in political protest and violence.

Download the essay from SSRN at the link.

Kopel and Greenlee on This History of Bans on Types of Arms Before 1900 @SturmCOL @HeartlandInst @gunpolicy @CatoInstitute

David B. Kopel, Independence Institute; Denver University College of Law; Cato Institute, and Joseph Greenlee, The Heartland Institute; Firearms Policy Coalition; Millenial Policy Center, are publishing This History of Bans on Types of Arms Before 1900 in volume 50 of the Journal of Legislation (2024). Here is the abstract.

This Article examines all American state, territorial, and colonial laws that prohibited possession or sale of any type of arm. Also covered are English laws before 1776, and the Dutch and Swedish colonies in America. Among the arms studied are handguns, repeating guns, Bowie knives, daggers, slungshots, blackjacks, brass knuckles, and cannons. The U.S. Supreme Court's decision in New York State Rifle and Pistol Association v. Bruen directs lower courts to review modern gun control laws in part by analogy to historic laws before 1900. This Article provides the resources to do so, and offers its own analysis. Besides describing prohibitory laws, the Article details other types of regulation, such as forbidding concealed carry, forbidding all carry, restricting sales to minors, licensing dealers, or taxing possession. It is the first comprehensive study of historic American laws about knives, swords, and blunt weapons. It is also the first comprehensive study of the types of arms for which colonies and states required ownership by militiamen, by some men not in the militia, and by some women. The arms regulation laws and cases of the 19th century are examined in the context of the century's tremendous advances in firearms. The century that began with the single-shot muzzle-loading musket ended with modern semiautomatic handguns and magazines. Synthesizing Supreme Court doctrine with historic statutes and cases, the Article concludes that prohibitions on semiautomatic rifles and magazines lack foundation in American legal history. In contrast, other regulations, such as restricting the purchase of certain arms by minors, have a stronger historic basis.

Download the article from SSRN at the link.

Brown on Laughing All the Way to the Bench: The Role of Humor in Supreme Court Confirmation Hearings @ColumbiaLaw @columbiajla

Joanna Brown, Columbia Law School, is publishing Laughing All the Way to the Bench: The Role of Humor in Supreme Court Confirmation Hearings in the Columbia Journal of Law & the Arts. Here is the abstract.

Supreme Court confirmation hearings serve a unique role in our government: they are the only instances where future Justices and their judicial philosophies are televised and subject to the scrutiny of not only the Senate, but also the public. Especially as judicial nominations become increasingly politicized and polarized, appearing trustworthy, likeable, and sensible becomes essential to nominees’ candidacy. Humor thus arms judges with the ability to volunteer positive information, appear humble, showcase values, lighten difficult topics and otherwise bond with Senators. Perhaps more saliently, it enables them to dodge, correct, or mock contentious or unflattering lines of questioning. By studying when, why, and how nominees use humor, we can get a glimpse into their future jurisprudence and decisions on the Bench: avoiding a topic or making light of a question may seem harmless in the hearing, but can actually reveal a nominee’s position on an issue and serve an important truth-telling role.

Download the article from SSRN at the link.

Cunningham and Roemer on Whether a President Can Be Impeached for Non-Criminal Conduct: New Linguistic Analysis Says Yes @ClarkGSULaw @uroemer @GeorgiaStateU @GeorgiaStateLaw

Clark D. Cunningham, Georgia State University College of Law, and Ute Roemer, Georgia State University, are publishing Can a President Be Impeached for Non-Criminal Conduct? New Linguistic Analysis Says Yes as a Georgia State University College of Law Legal Studies Research Paper. Here is the abstract.

“Few terms in constitutional law have been so fiercely contested as ‘high crimes and misdemeanors’ [in the impeachment provision].” Although most legal scholars argue that this phrase does not limit impeachment to criminal conduct, reconciling this conclusion with the constitutional text has been a challenge. In this article, co-authored by a law professor and a linguistics professor, we offer what we believe is a new and persuasive approach that arises directly from the constitutional text itself for extending the scope of impeachment to non-criminal conduct. We reach this conclusion by applying the science of linguistics to computer-assisted review of digitized texts written around the period when the Constitution was drafted and ratified. The result of this empirical research is the proposal that “other high crimes and misdemeanors” in the constitutional text should be interpreted as “other high crimes” and “other high misdemeanors.” Our linguistic analysis further establishes that high misdemeanor was a phrase used during the founding era to refer to non-criminal misconduct that requires removal from office. We corroborate this analysis with historical research showing that during the century following the founding era, the U.S. House of Representatives recurrently enacted articles of impeachment using the term “high misdemeanor” to refer to non-criminal misconduct affecting governance.

Download the article from SSRN at the link.

Guerra-Pujol on Adam Smith and the Balliol College Conspiracy @PUCPR1 @UCF

F. E. Guerra-Pujol, Pontifical Catholic University of Puerto Rico; University of Central Florida, has published Adam Smith and the Balliol College Conspiracy. Here is the abstract.

Did Adam Smith’s academic superiors at Balliol College, Oxford conspire to search his private rooms, and was the young scholar then reprimanded by them for the heresy of reading David Hume? Although this 18th-century conspiracy story has been retold many times, its veracity has never been corroborated. This paper thus contributes to the Adam Smith literature in three ways: by assembling in one place the original reports of the Oxford conspiracy, by showing how this oft-told Adam Smith conspiracy story has evolved over the years, and by subjecting these accounts to lawyerly scrutiny.

Download the article from SSRN at the link.

Malloy on Adam Smith's Market Jurisprudence @SUCollegeofLaw @SyracuseLRev

Robin Paul Malloy, Syracuse University College of Law, has published Adam Smith's Market Jurisprudence at 73 Syracuse Law Review 159 (2023). Here is the abstract.

Perhaps the most important and fundamental lesson of Adam Smith’s theory of jurisprudence for contemporary lawyers is that successful communities share a commitment to the rule of law and to the primacy of justice. As represented by the metaphor of the impartial spectator, the rule of law requires rational and impartial decision-making in accordance with due process. The rule of law is not merely an expression of economic or political power in some other form. In Smith’s theory, conflating the triadic relationship among law, economics, and politics undermines civic society and destabilizes the very pillars upon which civilization rests. Learning from Smith, we know that law and justice cannot simply be reinterpreted in terms of an economic calculus, nor can law and justice be understood as the mere exercise of power in service of identity politics. When the rule of law becomes confused with economics or politics, justice is in trouble. In the midst of such confusion, the language and mechanics of justice may survive as rhetorical and logical exercises in decision-making, but justice loses its ethical and aesthetic grounding. This loss of ethical and aesthetic grounding ultimately undermines the moral authority of law, reduces voluntary cooperation among people, and undercuts the sentiment of common interest.

Download the article from SSRN at the link.

Rosenthal on Nonoriginalist Laws in an Originalist World: Litigating Original Meaning from Heller to Bruen @Chapman_Law @AmULRev

Lawrence Rosenthal, Chapman University School of Law, is publishing Nonoriginalist Laws in an Originalist World: Litigating Original Meaning from Heller To Bruen in volume 73 of the American University Law Review. Here is the abstract.

The Second Amendment is on a jurisprudential march. An individual right to “keep and bear arms” for purposes unrelated to militia or military service was not recognized until the Supreme Court’s 2008 decision, applying what it took to be the original meaning of the Second Amendment, in District of Columbia v. Heller. Last Term, the Court, in New York State Rifle & Pistol Association v. Bruen, invalidated a statute requiring a permit to carry concealable firearms on a showing of particularized need. There is a great deal to criticize in the Court’s treatment of the original meaning of the Second Amendment in the line of cases beginning with Heller and culminating in Bruen. That is the focus of Part I. Part I observes that by the time of Bruen, the Court had taken to ignoring the Second Amendment’s preamble altogether; a position difficult to reconcile with the view taken of preambles in both the framing era and Heller itself. The Court had also managed to both acknowledge and then ignore the demonstrable ambiguity in the meaning of the Second Amendment right to “bear arms.” These errors seriously distorted the Court’s purportedly originalist analysis. Part I is a relatively conventional example of the type of legal scholarship that dissects Supreme Court opinions. Part II takes a less familiar turn by focusing on the lawyering of those who defended the laws at issue in these cases. After undertaking to show that the Supreme Court’s decisions should not be regarded as autonomous, but instead as reflecting to a considerable extent the arguments pressed on it, Part II demonstrates that the Court’s errors mirror serious litigating errors by the attorneys defending the laws at issue in these cases. These flawed litigating strategies reflect, Part II shows, an incomplete grasp of the conceptual underpinnings of originalism as a method of constitutional interpretation. Lawyers defending statutes or other legal regimes without clear framing-era antecedents must develop a more sophisticated understanding of originalist constitutional interpretation. Part III offers a guide for avoiding the kind of errors reflected in the thus-far unavailing efforts to defend challenged firearms regulation from Second Amendment attack, in both Second Amendment litigation and other areas of constitutional law.

Download the article from SSRN at the link.

Call For Papers: 2023 Law, Literature, and Humanities Conference @lawlithum

From Professor Timothy Peters, University of the Sunshine Coast, the CFP for the 2023 LLHAA Conference:

It is our delight to share the call for papers for the 2023 Law, Literature and Humanities Association of Australasia Conference – “Deus Ex Machina: Law – Technology - Humanities”. This is going to be an excellent event and a wonderful opportunity to gather together as scholars across law and humanities.

 

The conference runs from 11-14^th December, hosted by Professor Kieran Tranter and the Human Technology Law Centre, QUT Law School (Brisbane, Australia) and will include a PhD/Research Student workshop on the 11th.

 

The conference team are organising a brilliant line-up, which includes:

• Keynote from Associate Professor Mitchell Travis, Director for the Centre for Law and Social Justice at the University of Leeds who will speak on “Dystopia Now”.
• Special Screening and discussion of Luis Gómez Romero and Desmond Manderson’s play “Twenty Minutes with the Devil”.

 

And more keynotes and plenaries will be announced soon!

 

Please see attached the call for papers flyer and further information is available at the conference website:

https://research.qut.edu.au/htlc/deus-ex-machina-law-technology-humanities/

 

CFP closes 4^th September – and you can submit either a general paper to the conference or to one of the numerous streams.

 

Please circulate amongst your networks and we look forward to seeing you in December!

 

 

Siegel on How "History and Tradition" Perpetuates Inequality: Dobbs on Abortion's Nineteenth-Century Criminalization @YaleLawSch @HoustonLRev

Reva Siegel, Yale University Law School, is publishing How "History and Tradition" Perpetuates Inequality: Dobbs on Abortion's Nineteenth-Century Criminalization in volume 60 of the Houston Law Review (2023). Here is the abstract.

In this Commentary, I show how the tradition-entrenching methods the Court employed to decide New York State Rifle & Pistol Ass’n, Inc. v. Bruen and Dobbs v. Jackson Women’s Health Organization intensify the gender biases of a constitutional order that for the majority of its existence denied women a voice in lawmaking and restricted women’s roles. The tradition entrenching methods the Court employed to decide Bruen and Dobbs elevate the significance of laws adopted at a time when women and people of color were judged unfit to participate and treated accordingly by constitutional law, common law, and positive law. The methods the Court employs are gendered in the simple sense that they tie the Constitution’s meaning to lawmaking from which women were excluded and in the deeper sense that the turn to the past provides the Court resources for expressing identity and value drawn from a culture whose laws and mores were more hierarchical than our own. Sampling their recent opinions, Part II of this Commentary shows that the conservative Justices have repudiated past practices when those practices expressed racism or nativism to which the Justices objected. Yet, Part III of this Commentary shows that in Dobbs the conservative Justices embraced past practices as the nation’s history and tradition, counting abortion bans enacted with the support of the nineteenth-century anti-abortion campaign without scrutinizing evidence that the campaign mixed arguments for protecting unborn life with arguments that banning abortion would prevent ethnic replacement and would enforce wives’ marital and maternal roles. In Part IV, I suggest that Justice Alito might have refused to defer to prejudice of the past as he did in Espinoza v. Montana Department of Revenue if he saw religious liberty, rather than abortion rights, at stake. There are several reasons for revisiting the claims about abortion, history, and tradition on which the Dobbs decision rests. Even if the Supreme Court itself never acknowledges Dobbs’s selective and inaccurate account of the historical record, as it acknowledged historical errors of Bowers v. Hardwick in Lawrence v. Texas, there is value in recognizing that the Court’s claims about the past have a politics. In demonstrating that the Court selectively defers to the past, this Commentary shows how the Court’s history-and-traditions method provides new justifications for enforcing old forms of status inequality. This Commentary builds the historical record critical to debates over the criminalization of abortion in state courts and legislatures. And it contributes to Professor Melissa Murray’s remarkable and wide ranging account of how the jurisprudence of Bruen and Dobbs is gendered: Children of Men: The Roberts Court’s Jurisprudence of Masculinity.

Download the essay from SSRN at the link.

Pfander on Public Law Litigation in Eighteenth Century America: Diffuse Law Enforcement for a Partisan World @NorthwesternLaw @FordhamLRev

James E. Pfander, Northwestern University School of Law, is publishing Public Law Litigation in Eighteenth Century America: Diffuse Law Enforcement for a Partisan World in volume 92 of the Fordham Law Review. Here is the abstract.

For some time, the Supreme Court has used standing doctrine to limit the authority of federal courts to entertain private suits aimed at enforcing public norms. In its most recent iteration, TransUnion LLC v. Ramirez, the Court invalidated a federal consumer protection statute on the theory that it wrongly empowered suit by individuals who lacked the requisite injury in fact. Shutting down private litigation was said to advance separation of powers values and to protect the enforcement discretion of a unitary executive branch. The Court characterized private enforcement as a novel feature of the 1970s, a time the Court viewed with evident suspicion as one that inaugurated interest group litigation. In truth, the tradition of interest group enforcement of public norms extends to the earliest days of the Republic. During the 1790s, Quakers and other anti-slavery activists secured federal legislation prohibiting American involvement in the international trade in enslaved people. Like other legislation of that period, the 1794 statute empowered both the federal government and private informers to enforce the law. The ensuing litigation, brought by private informers associated with such groups as the Providence Abolition Society, led to the forfeiture and sale of the offending vessels in the admiralty courts of Rhode Island and elsewhere. Drawing on federal archives, this Article recounts a history in which all three branches of the federal government – Congress, courts, and executive branch officials – viewed private litigation through what were called “popular” actions as an uncontroversial tool for enforcing public norms. One finds no objections based on Article II or III of the Constitution.

Download the article from SSRN at the link.

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.

Newly Published: Haiyan Lee: A Certain Justice: Toward an Ecology of the Chinese Legal Imagination (University of Chicago Press) @UChicagoPress

Newly published:

Haiyan Lee, A Certain Justice: Toward an Ecology of the Chinese Legal Imagination (University of Chicago Press, 2023). Here from the publisher's website is a description of the book's contents.

To many outsiders, China has an image as a realm of Oriental despotism where law is at best window dressing and at worst an instrument of coercion and tyranny. In this highly original contribution to the interdisciplinary field of law and humanities, Haiyan Lee contends that this image arises from a skewed understanding of China’s political-legal culture, particularly the failure to distinguish what she calls high justice and low justice.

In the Chinese legal imagination, Lee shows, justice is a vertical concept, with low justice between individuals firmly subordinated to the high justice of the state. China’s political-legal culture is marked by a mistrust of law’s powers, and as a result, it privileges substantive over procedural justice. Calling on a wide array of narratives—stories of crime and punishment, subterfuge and exposé, guilt and redemption—A Certain Justice helps us recognize the fight for justice outside the familiar arenas of liberal democracy and the rule of law.

Forthcoming from Oxford University Press: Stephen Bogle, Contract Before the Enlightenment: The Ideas of James Dalrymple, Viscount Stair, 1619-1695 @stephen_bogle @OxUniPress

 Forthcoming from Oxford University Press:

Stephen Bogle, Contract Before the Enlightenment: The Ideas of James Dalrymple, Viscount Stair, 1619-1695 (OUP, 2023) (Oxford Legal History). Here from the publisher's website is a description of the book's content.

Contract Before the Enlightenment represents a fresh investigation of what was then a ground-breaking approach to the law of contract written by James Dalrymple, Viscount Stair (1619-1695), lauded by some as the founding father of Scots law.

As a judge and public figure, Stair was at the forefront of both political and legal developments in Scotland from the 1640s until he died in 1695. This study explores the development and reception of his ideas relating to the law of contract on the eve of the Scottish Enlightenment. It is here that Stair's legal legacy is most evident, and where the imprint of Calvinism, Aristotelianism, and Protestant natural law can be found within Scottish legal thought.

In his legal treatise, the Institutions of Law of Scotland you find a sophisticated, innovative, and novel synthesis of Roman law with Stair's own Calvinist variant of a Protestant natural law theory. Yet it is also possible to find, once the theistic premises of Stair's natural law theory are dropped, the beginnings of a form of Scottish moral philosophy that rose to prominence in the eighteenth century.

Undoubtedly, Stair is not only a key figure within Scottish legal history but also significant to how we understand the transition of Scottish intellectual life from the execution of Charles I to the emergence of the Scottish Enlightenment.

Caton on Pluralism and Public Reason: An Entangled Analysis of Early Modern England @NDSU

James Caton, North Dakota State University, Department of Agribusiness and Applied Economics; American Institute for Economic Research; North Dakota State University, NDSU Center for the Study of Public Choice and Private Enterprise Department of AgriCommunity, is publishing Pluralism, and Public Reason: An Entangled Analysis of Early Modern England in Realism, Ideology, and the Convulsions of Democracy. Here is the abstract.

James Buchanan recognized that governing arrangements were certified by a constitutional moment. He also recognized that there existed a continual bargaining over these arrangements. There exists not a single constitutional moment, but an endless series of constitutional moments by which the social contract evolves. This work outlines a framework for interpreting the formation and transformation of the social contract and uses this framework to identify changes in the social fabric that enabled the development of pluralism in pre- and post-Reformation England. Proper framing of this transformation requires consideration of interaction between ideas and institutions across political, economic, legal, and religious spheres. Ideological diversity had enabled the English Reformation, an institutional shift that ultimately diminished the efficacy of cooperation between church and state. The development of a particularly liberal, English worldview reflecting growing autonomy for individuals and communities is evidenced by the growing use of language related to concepts of virtue, commerce, and liberty.

Download the essay from SSRN at the link.

Forthcoming: Justin Steinberg, Law and Mimesis in Boccaccio's Decameron (Cambridge University Press, 2023) @CambridgeUP @ArsScripta

Forthcoming from Cambridge University Press: Justin Steinberg, University of Chicago, Law and Mimesis in Boccaccio's Decameron (2023). Here from the publisher's website is a description of the book's content.

In Boccaccio's time, the Italian city-state began to take on a much more proactive role in prosecuting crime – one which superseded a largely communitarian, private approach. The emergence of the state-sponsored inquisitorial trial indeed haunts the legal proceedings staged in the Decameron. How, Justin Steinberg asks, does this significant juridical shift alter our perspective on Boccaccio's much-touted realism and literary self-consciousness? What can it tell us about how he views his predecessor, Dante: perhaps the world's most powerful inquisitorial judge? And to what extent does the Decameron shed light on the enduring role of verisimilitude and truth-seeming in our current legal system? The author explores these and other literary, philosophical, and ethical questions that Boccaccio raises in the Decameron's numerous trials. The book will appeal to scholars and students of medieval and early modern studies, literary theory and legal history.

Chapman on Slave Cases and Ingrained Racism in Legal Information Infrastructures @UMDLawLibrary @UMDLaw

Jennifer Elisa Chapman, University of Maryland School of Law, University of Maryland Thurgood Marshall Law Library, has published Slave Cases and Ingrained Racism in Legal Information Infrastructures in Antiracist Library and Information Science: Racial Justice and Community (K. Black and B. Mehra, eds., Emerald Publishing, 2023) (Advances in Librarianship; 52).

Present-day courts, practitioners, and scholars continue to cite to and rely upon cases involving slavery and enslaved persons to construe, interpret, and apply common-law principles of property, contract, family, tort, and other areas of the law. Often a case’s connections to slavery are not acknowledged in citations. This erasing of context causes institutional harms by both embedding slave-based legal analysis in American legal structures and condoning the detrimental impacts of slavery in society. The deleterious effects of slavery persist through citations to cases involving enslaved persons to support such prosaic present-day issues as warranties on window glass. Slavery may no longer be legal, but its long shadow persists in citations and, thereby, is embedded in the information systems informing the legal profession. The information infrastructures that categorize case law and inform legal research ingrain racism in the American legal system by perpetuating and masking case law connections to slavery and enslaved persons. The legal profession has recently been criticized for the continued citation to cases that state good law or persuasive authority but are rooted in the institution of slavery. This chapter builds on this important research and contributes a necessary element to the discussion – namely how legal information infrastructures contribute to continuing citation to slave cases and how the library and information science (LIS) field can help institute change and promote racial justice.

Download the essay from SSRN at the link.

Glushak on The Status of Loanwords in German @mgimo_en

Vasiliy Glushak, Moscow State Institute of International Relations (MGIMO), has published The Status of Loanwords in German. Here is the abstract.

The emergence of borrowed lexical units in legal texts is due to various factors. Borrowings are often synonyms for terms already used in legal discourse, or they denote a new phenomenon to which a German-language term is eventually chosen, which again leads to the existence of synonymous denotations. This phenomenon is also connected with the history of law. Borrowed elements were often components of paired expressions. Here are just a few examples that included borrowings: Erbschaft oder Succession - confirmieren und bestätigen - Contract oder Bündnis - contravenieren und zuwiderhandeln - Genehmigung und Approbation. The borrowed component was highlighted in writing and in print with a special font. The listing along with the borrowed component of an authentic, German word that reveals the meaning of the borrowing can be seen as a continuation of the tradition already described: fair und angemessen, fair und ausgewogen, fair und unparteiisch. Fair action is thus to be understood as action based on a reasonable, considered and impartial approach. A peculiarity of the German legal language is an active tendency to reject foreign-language terms imposed on it. This can be established by analysing the frequency of use of borrowed synonymous lexemes. The markers of the group of borrowed words are suffixes -tion, -tät, -ier. This table contains information about the use of these suffixes in the German legal texts: GG (Basic Law), BGB (Civil Code), the EU foundation documents (Treaty on European Union (VEU) and Treaty on the Functioning of the European Union (LISSABON), two important regulations (ROM I and ROM II) and one current regulation (VO2022/126) for comparison. The number of words with determinative borrowed vocabulary components -tät, -tion, -ieren in the EU documents is not comparable to the similar vocabulary in the German legal documents. On 412 pages of the Treaty on the Functioning of the European Union and 283 pages of the Treaty of Lisbon there are 503 and 278 words with -tät and over 1,000 words with -tion in both documents. Whereas in the 50 pages of the Basic Law and 422 pages of the GGU there are 44 and 122 words with -tion and 9 and 13 with -tät respectively. Verbs with -ieren are only 25 in the Fundamental Law and 64 in the GGU, while the EU texts mentioned above have between 200 and 300 examples of this. The use of loan words is probably intended to accelerate the unification of European law and to turn the language of legal documents into a kind of lingua franca that is generally understood by everyone working with the document, regardless of their nationality. EU law has a strong influence on the terminological system of German national law. Synonymous designations alternate in the texts of the law in similar contexts: in das Fahrzeug eingebaut, in ein Gerät eingebaut zu werden, im Anzeigegerät integriert, zusammengebaut, ineinander gebaut oder kombiniert. The frequency advantage of German-speaking terms allows us to conclude that the German language is resistant to borrowing. However, the trend towards a quantitative increase in the use of borrowed terms, often unwarranted when a native equivalent is available, makes the future of the terminological system of German language look with concern in view of the trend towards a globalised language of law.

Download the paper from SSRN at the link.

Dyzenhaus and Poole on The Old Commonwealth Model of Constitutionalism @LSEnews @UofTLaw

David Dyzenhaus, University of Toronto Faculty of Law and Department of Philosophy, and Thomas M. Poole, London School of Economics, Law School, have published The Old Commonwealth Model of Constitutionalism as LSE Legal Studies Working Paper No. 11/2023. Here is the abstract.

Comparative constitutional law is prone to two types of error. ‘Thin’ or overly formal accounts overlook important substantive dimensions of law and constitutions. ‘Thicker’ accounts often subsume the legal within politics or culture. Both types of error share a tendency towards presentism which stems, we argue, from insufficient consideration of the ‘jurisprudential perspective’ - the basic framework of legality which structures constitutional order and the ‘internal point of view’ that accompanies it, whereby actors within a legal order understand their association in terms of rights and duties. We turn to an older school of inquiry to see what such inquiry might entail. ‘Commonwealth comparative constitutional law’ explored questions of legality and sovereignty in the context of a collapsing British Empire. We assess the contribution of R.T.E. Latham, D.V. Cowen, Edward McWhinney and Geoffrey Marshall in the context of the Voters Rights legislation and litigation in 1950s South Africa in particular, and conclude by reflecting on the potential of this style of scholarship in our own era, where questions of sovereignty, exclusion and faux legality resurface in new and troubling forms.

Download the text from SSRN at the link.

Kerr on When To Admit Art as Evidence @PKUSTL @WUSTL

Andrew Jensen Kerr, Peking University School of Transnational Law, is publishing When To Admit Art as Evidence in the Washington University Law Review Online. Here is the abstract.

Jeffery Lamar Williams, better known as Young Thug, is the latest high-profile rapper to have his rap “lyrics” potentially entered into evidence as part of a criminal trial. Young Thug himself faces several racketeering, drugs and weapons-related charges. The rap clique he co-founded, Young Slime Life (“YSL”), has been branded by Atlanta District Attorney Fani Willis as a street gang, whose affiliate members together face well over 60 separate criminal charges, ranging from car hijacking to aggravated assault and murder. The case is sprawling. As is Young Thug’s vast catalog, from which the District Attorney intends to isolate some snippets of vocalizations as evidence of YSL’s alleged gang-like ambitions. In this Article, I suggest why this is problematic. But given the practical reality facing Young Thug, I offer a compromise position that comports with how the Constitution thinks about art and evidence law, and that also does justice to Young Thug’s innovative form of music. In the first line of this abstract, I place “lyrics” in quotation marks not to express skepticism towards rap as a genre, but to question whether a form of music as daringly sonic as Young Thug’s can be legibly reduced to the supposed text that undergirds it. I argue, consistent with my prior work on constitutional art speech, that it cannot. Here I make the limited claim that in keeping with evidence rules like Ga. Code § 24-4-403 (whether probative value of evidence is substantially outweighed by the danger of unfair prejudice) that District Attorney Willis may enter tracks like “Eww” (2014) or “Slime Shit” (2018) into trial as she intends to do later this year, but only in their original audio form, in full (not as parsed snippets) and without subtitles or lyric sheets. As a corollary claim, I argue that the court need not invite experts (whether police or “rap scholars”) to try to make sense of Young Thug’s music. It doesn’t need any explanation. Like most all popular music, its only measure is whether it is enjoyable for an audience.

Download the article from SSRN at the link.

Graber on Copyright Insight Out: A Legal Sociologist's Perspective @cbgraber

Christoph B. Graber, University of Zurich Faculty of Law, is publishing Copyright Insight Out: A Legal Sociologist's Perspective in Kritika: Essays on Intellectual Property, Volume 6 (Peters Drahos, et al., Cheltenham, UK: Edward Elgar, 2023) (forthcoming).

In my work as a researcher and teacher of legal sociology, copyright issues have always played an important role. I have been particularly interested in studying how copyright has changed under the influence of technology. The start of my career as a law professor in 1998 coincided with the invention of file sharing. In the years that followed, I used file sharing in my teaching to illustrate how digital technology challenged the effectiveness of government sanctions as a means of copyright enforcement. In my research, exploring the relationship between materiality and sociality, or how technological infrastructure and law interact, has become central. It focuses on the concept of normative expectations and the related question of how the law can regulate norm-building processes in a social context. Overall, the law and society perspective has proved useful in analysing the social impact of a new technology and in incorporating the insights gained into legal practice in order to make concrete suggestions for improvement.

Download the article from SSRN at the link.

Koppelman on Madison's Non Sequitur: A Comment on Vincent Phillip Muñoz, Religious Liberty, and the American Founding @AndrewKoppelman

Andrew Koppelman, Northwestern University School of Law, is publishing Madison's Non Sequitur: A Comment on Vincent Phillip Muñoz, Religious Liberty and the American Founding in American Political Thought: A Journal of Ideas, Institutions, and Culture. Here is the abstract.

Vincent Phillip Muñoz’s book, Religious Liberty and the American Founding, is a marvelous piece of historical reconstruction, bringing to vivid life the intellectual world of the framers. He gives the reader a sharply etched picture of their natural rights philosophy. But their world is not ours, and they relied on premises that we cannot share and which cannot now be the basis of public law. Today, when courts interpret the First Amendment’s religion clauses, they must articulate a rationale that will not be unintelligible or repulsive to many citizens. The interpretation also ought not to inflame the very divisions that the clause was intended to prevent. The fundamental problem is that the framers believed both that we are endowed with natural rights and that the government is incompetent and untrustworthy to adjudicate religious questions. Their natural rights philosophy, however, ultimately rested on religious foundations if it rested on anything at all. Muñoz offers us a valuable window into the world of Madison. But that world is not our world. If religious liberty is to remain a shared ideal in contemporary America, it will have to be under a different description than the one that Muñoz skillfully recreates. It must not presuppose theistic premises that many Americans reject.

Download the article from SSRN at the link.