Siliquini-Cinelli on What Legal Reasoning Is @CardiffLaw

Luca Siliquini-Cinelli, Cardiff University, School of Law and Politics, is publishing What is Legal Reasoning? in the International Journal for the Semiotics of Law (2024).

Pursuant to the aims and scope of the Special Issue it is part of, this invited contribution seeks to shed new light on the nature and working logic of legal reasoning. It does so by engaging with two of the most authoritative views on the subject which have recently been put forward in the Common law world—namely, Lord Hoffmann’s, and Larry Alexander and Emily Sherwin’s. A key-concern of the Anglophone debate on legal reasoning is whether it is a specialistic type of reasoning requiring ad hoc education and training, or ordinary reasoning subject to ordinary rules of language (i.e. sentence construction, interpretation, etc.). The article argues that compelling though they are, these sorts of enquiries do not help to understand what legal reasoning really is and how it operates. In particular, it argues that if we are to understand what legal reasoning is and how it works, we ought to examine the propositions it aims to craft and support. In so arguing, the article further shows that exploring law’s nature and operations as an intellectual means for social ordering also helps to understand how law works as a regulatory phenomenon more generally.

Download the article from SSRN at the link.

Tobia on New Methods on Statutory Interpretation @kevin_tobia @GeorgetownLaw

Kevin Tobia, Georgetown University Law Center; Georgetown University Department of Philosophy, has published New Methods in Statutory Interpretation: Surveys, Corpus Linguistics, ChatGPT. Here is the abstract.

We live in an age of statutes, and textualism is the dominant method of interpreting them. This much is now familiar, encapsulated by Justice Kagan's 2015 announcement that "we are all textualists now." But this story has a recent twist: Textualism's methods are evolving. This short essay introduces some recent developments in textualist methods. Textualists are looking to corpus linguistics, surveys, and even large language models (e.g ChatGPT) to determine the meaning of statutory text. At the same time, textualists grow more skeptical about the force of some traditional methods: dictionaries, substantive canons, and even linguistic canons.

Download the essay from SSRN at the link.

Hsieh on "The Past Is Never Dead, It's Not Even a Trademark or Copyright": William Faulkner on the Elusive Boundary Between Intellectual Property Forms No One Ever Talks About @timhsiehiplaw @OCULAW

Timothy T. Hsieh, Oklahoma City University School of Law, has published "The Past Is Never Dead, It's Not Even a Trademark or Copyright": William Faulkner and The Elusive Boundary Between Intellectual Property Forms No One Talks About. Here is the abstract.

In the 2013 federal case of Faulkner Literary Rights, LLC v. Sony Pictures Classics Inc., et al., Case No. 3:12-cv-100-MPM-JMV (N.D. Miss. July 18, 2013), the Estate of William Faulkner sued Sony Pictures due to Woody Allen’s film Midnight in Paris having a character refer to the Faulkner quote “The past is never dead. It’s not even past” from Requiem for a Nun. In the suit, the Faulkner Estate alleged copyright infringement as well as trademark appropriation under The Lanham Act. A 2012 suit also occurred where The Faulkner Estate sued aerospace defense technology company Northrup Grumman for using the same quote in a 2011 advertisement placed in The Washington Post. See Faulkner Literary Rights LLC v Northrop Grumman. Corporation and the Washington Post Company, No 3:12-cv-732-HTW-LRA (S.D. Miss. Oct 26, 2012). Both cases not only dealt with trademark law, the copyright law doctrine of fair use and also de minimis usage of copyrighted material, but also the fascinating quandary of where one draws the line between a copyright and a trademark, e.g., when does a slogan or title become too long to trademark and proper to copyright and vice-versa, when does a copyrightable line of literary text become too short to copyright and proper to trademark? This boundary between a copyright and a trademark is one seldom analyzed by the legal literature out there, and almost overlooked or even dismissed as a simplistic concept not worth a deeper look. However, these cases involving the infamous Faulkner line compel the conclusion that the difference between a trademark and a copyright might be a much more complex determination to make. By analyzing these two cases, the history of cases differentiating a trademark and a copyright or the “trademark-copyright” boundary, and the potential usage of similar lines from Faulkner’s work, this paper will discuss how one of William Faulkner’s most enduring and timeless lines pushes the boundaries of a cutting-edge but little analyzed concept in intellectual property law.

Download the article from SSRN at the link.

Grynberg on What Trademark Law Can Learn From Comic Art @DePaulLaw

Michael Grynberg, DePaul University College of Law, has published Trademarks as Comics. Here is the abstract.

What can trademark law learn from comic art? This essay uses the comic book form to explore the question.

Download the abstract from SSRN at the link.

Ballakrishen on Kanoon's Sarange: Goodrich and the Non-Minor Jurisprudences of Law and Love @ssballakrishnen @UCILaw @Law_Cult_Huma

Swethaa Ballakrishnen, University of California, Irvine, School of Law; Harvard University, Center on the Legala Profession, is publishing Kanoon’s Sarange: Goodrich and the Non-Minor Jurisprudences of Law and Love in Law, Culture and the Humanities (2024). Here is the abstract.

This article uses three main global visual sites—the popular Korean drama Hometown Cha Cha Cha (2021), the Hindi-English movie, The Lunchbox (2013), and the British-American television series Ted Lasso (2020–2023) to engage with two main strains of Peter Goodrich's scholarship: the interconnectedness between law, justice, and love; and the role of minor jurisprudences. Heeding Goodrich's advice to consider media as an important node for legal analysis, it traces the course of aromantic amity and asexual kinship across these sites to deliberate new ways of considering the law's liberal commitments to conjugality and dyadic partnership. By focusing on popular scripts seemingly unrelated to the law, I seek to both contemplate on new pulses in contemporary cultures and the tools they might offer to consider the literature on law and love. Kanoon is the word in Hindi for law and Sarange is the word in Korean for love. Translated loosely—and, intentionally with flaws and gaps in logic—as Law's Love. To the extent we can reparatively imagine law from the perspective of these cultural prompts, I suggest that they offer new alterities from heteropatriarchy and utopic possibilities beyond the liberal queer rights regime.

Download the article from SSRN at the link.

Bromby on An Annotated Chronology of Hansard References to "Colonial Prisoners' Removal" in the Westminster Parliament from 1869 Onwards @m_bro

Michael Bromby, Cayman Islands Law School; Glasgow Caledonian University, has published An Annotated Chronology of Hansard References to “Colonial Prisoners Removal” in the Westminster Parliament from 1869 onwards. Here is the abstract.

This paper presents an annotated chronology of all references to "colonial prisoners removal" in the UK Parliament’s Hansard reports. This site does not cover the period 2004-2006, or written answers from April 2010 onwards. Aside from the legislative drafting stages of the 1869 and 1884 Acts, there are very few references to colonial prisoners and their removal under the Acts in either House over a period spanning more than a century. The main focus of debates on the floor of both Houses were in relation to prisoner removals from Bahrain to St Helena in 1956. The Written Answers provide more detail on other removals, most notably some general statistics for the years 1967 and 1987.

Download the article from SSRN at the link.

Falletti on The Botanical Horti and the Dawn of International Law

Elena Falletti, Carlo Cattaneo LIUC University, has published The Botanical Horti and The Dawn of International Law, presented at the Conference The Power of Flowers, 1500-1750 - Gent, 14-16.6.2023.

As is widely acknowledged, botanical gardens are often seen as the successors of medieval arboreta, which served as a means of studying the medicinal properties of herbs but were typically controlled by religious monasteries. Conversely, they signify a new approach closely associated with the Renaissance. During the 16th century in Italy, knowledge about plant usage and their products (such as flowers, fruits, and seeds) transitioned from the confines of monasteries to the dynamic cultural and scientific milieu of universities. Notable instances of this shift can be observed in two of the principal states in Renaissance Italy: Tuscany and the Republic of Venice. Botanical gardens were founded in Pisa and Padua to return the oversight of medicinal plants to public institutions as a form of public health safeguarding. It was particularly crucial to regulate the production and trade of poisonous and lethal plants, which were considered covert threats. However, the role of botanical gardens underwent a significant transformation with the expansion of colonialism. New colonial powers, starting with the Dutch and later the British, adopted this model. The focus shifted from controlling poisons and medicinal effects to researching and understanding how to produce marketable commodities like exotic spices and plants as efficiently as possible. This shift, brought about by colonialism, is a crucial aspect of the historical evolution of botanical gardens. The onset of industrialization and the regulations concerning intellectual property rights also left their mark on cultivating and exploiting plant species, leading to the development of fresh techniques for growing and transporting plants. The significance of botanical gardens was instrumental in their evolution into scientific and experimental laboratories. This evolution raised further philosophical and legal questions, notably the pertinent query: 'Who owns nature?' This paper focuses on how these centers of knowledge paved the way for establishing international relationships governing exotic goods. Botanical gardens, through their research and experimentation, have significantly influenced these connections. Additionally, it seeks to explore how this approach continues to influence contemporary legal discussions, especially those relating to the protection of cultural heritage and biodiversity.

Download the essay from SSRN at the link.

Ferguson on The Ciceronian Origins of American Law and Constitutionalism @HarvardJLPP

Jack Ferguson, U. S. Court of Appeals for the Sixth Circuit, is publishing The Ciceronian Origins of American Law and Constitutionalism in volume 48 of the Harvard Journal of Law & Public Policy. Here is the abstract.

In his treatise on American constitutionalism, John Adams wrote that “as all the ages of the world have not produced a greater statesman and philosopher united than Cicero, his authority should have great weight.” This Article considers the Founding generation’s intellectual debt to Marcus Tullius Cicero, the classical Roman statesman-philosopher, and what it tells us about how the Founders approached law and constitutionalism. There are ongoing scholarly efforts to recover the general law tradition and classical lawyering of the eighteenth century, but as of yet, no account has been given of Cicero’s prominent role in that era. This Article gives that account. This Article first examines Cicero’s legal thought and how it shaped notions of natural law and the law of nations (or general law) in the seventeenth and eighteenth centuries. Grotius, Pufendorf, Coke, Vattel, Blackstone, Lord Mansfield, James Wilson, Joseph Story, and others grounded their work in Cicero’s writings on law. As a case study, this Article shows how Cicero contributed to the formation of American judicial review. Cicero’s interpretive principles dealing with hierarchies of law were adopted by Federalist No. 78, Alexander Hamilton’s prominent defense of judicial review. This Article then considers Cicero’s work on republicanism and constitutionalism. The Founding generation’s concepts of popular sovereignty, mixed government, checks and balances, and the rule of law can be traced back to Cicero, who was the primary expositor of the classical republican tradition. Finally, this Article evaluates Cicero’s influence on eighteenth-century notions of the ideal executive. As a constitutional theorist, Cicero laid the conceptual groundwork for Hamilton’s unitary energetic executive. And by his historical example as consul of Rome, Cicero inspired Hamilton’s efforts in the Washington administration to put down the Whiskey Rebellion of 1794, an early historical precedent on insurrection and the domestic use of military force. Cicero influenced the Founders’ work in numerous ways. To the extent their law is ours today, his relevance endures.

Download the article from SSRN at the link.

Thumma and Miller on The Slump: Infamous United States Supreme Court Decisions From the Gilded Age, Explanations About What Happened, and Why It Matters Now

Samuel Thumma, Arizona Court of Appeals, and Michael O. Miller, independent scholar, are publishing The Slump: Infamous United States Supreme Court Decisions From the Gilded Age, Explanations About What Happened, and Why It Matters Now in the Journal of Gender, Race, and Justice. Here is the abstract.

In its history, the United States Supreme Court has issued many decisions forgotten to time. A few are touted as brilliant and foundational, and others are widely criticized. An outsized number of infamous decisions came during the last three decades of the 19th Century, during what we call The Slump.

The latter third of the 19th Century -- often called the “Gilded Age” -- was a time of extraordinary advancements in the United States, including rapid growth and technical development, prosperity for many, significant immigration, and the transition from an agrarian to a manufacturing economy. In the Supreme Court, however, this same period presented a far different cluster of challenges: the meaning and application of the Civil War Amendments (13th, 14th and 15th); reinterpreting or abandoning precedent based on laws protecting “African slavery;” confronting entrenchment of quasi-slavery in the South; and the application of (or refusal to apply) the Reconstruction Amendments to society as a whole. The Court’s decisions were shockingly deficient in doing so. This article focuses on ten infamous cases (“The Slump Cases”) from the Gilded Age -- starting with The Slaughter-House Cases in 1873 and ending just after Plessy v. Ferguson in 1896 -- as well as the Justices’ extra-judicial involvement in deciding the 1876 Presidential Election.

Each Slump Case is discussed in historical and legal context, then critiqued based on the consequences of its failures. We also examine the implications arising from the role of the Justices in resolving the 1876 Presidential Election, decided in an unprecedented manner by just one electoral vote. The article then discusses possible explanations for these infamous cases, ultimately settling on a unified explanation: the Supreme Court failed to address the constitutional revolution wrought by the Civil War and failed to recognize individual rights consistent with those profound changes. It did so in cases involving race, gender, national origin, citizenship, marital relationships, travel, free speech, voting, and jury service. It did so in ways that ignored facts, negated remedial legislation, and could not be fixed legislatively but, instead, resulted in the creation of ill-defined constitutional doctrines, such as substantive due process.

Several Slump Cases were later reversed, but it took many decades and misstarts to do so. Equally important today, the analytical and other failures in The Slump Cases surrounding the Reconstruction Amendments percolate into current jurisprudence, including voting disputes and partisan conflict. Our examination of constitutional changes within this group of Supreme Court decisions during this 30-year period will provide a broader context for considering their significance, precedential value and, hopefully, lessons learned in future cases before any court.

Download the article from SSRN at the link.

Rappaport on The American Creed and the Constitutional Order @uclaw_sf

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

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

Download the article from SSRN at the link.

Call For Papers: Law and Geography in Urban Asia, February 18-19, 2025, Asia Research Institute, National University of Singapore @nus_ari

 

Dr. Dhiraj Nainani, National University of Singapore, announces an upcoming workshop entitled "Law and Geography in Urban Asia," which will be taking place on February 18-19 2025 at the Asia Research Institute, National University of Singapore. 

More information and a complete Call for Papers can be found here: https://ari.nus.edu.sg/events/law-and-geography/

The workshop will be in-person, and funding support for travel and accommodation is available. 

Proposals are due at the end of September, and if any further information is required please don’t hesitate to email him at dhirajn@nus.edu.sg. 

Funk on Sect and Superstition: The Protestant Framework of American Codification @ColumbiaLaw

Kellen R. Funk, Columbia University Law School, is publishing Sect and Superstition: The Protestant Framework of American Codification in the American Journal of Legal History for 2024. Here is the abstract.

Elite lawyers who debated codification in the nineteenth-century United States treated codification as inseparable from a liberal Protestant textualism that had taken hold in the early national era. Legislators declared codification to be the necessary final step of the Protestant Reformation and frequently characterized common law lawyers as beholden to 'superstition' and 'priestcraft'. Their opponents denounced the codifiers' idea that texts alone could adequately convey common meanings and delighted to point out the endlessly fracturing glosses on supposedly 'clear' texts that divided the positivists into an ever-increasing number of sects. Many works have addressed the relationship between populism and positivism over the course of the codification debates in the United States. What these works have missed is the Protestantism. Understanding how lawyers of another generation approached these questions can help us to appreciate the varieties of American textualism, and the fact that today's textualism may be as foreign to textualisms of the past as to other methods entirely. Rather than the forerunners of a modern, rationalist 'Republic of Statutes', the codifiers were the literal and figurative sons of a post-Calvinist generation that was unquenchably optimistic about the clarity of texts and the common sense of individuals reading them. This lens also helps us better understand the defenders of the common law, who were not so much the retrograde servants of property rights and judicial supremacy as they are often presented, but were more often practically minded lawyers who understood the limits to which legislative texts could change the complex practices of law on the ground.

Download the article from SSRN at the link.

Final Call: Call For Papers, How To Do Things With Law: Prefiguration, Performativity, and Alternative Legalities, Law and Society Association, May 22-25, 2025, Chicago

 Final Call: 

Call for Papers

How to do things with Law: Prefiguration, Performativity, and Alternative Legalities

Law and Society Association, May 22-25, 2025, in Chicago

We - Amy Cohen (Temple University), Stephen Young (University of Otago) and Ben Golder (UNSW) - are organising a mini-conference on the above theme to take place within the 2025 annual meeting of the Law and Society Association in Chicago, to be held May 22-25th.

Theme:

What happens when everyday actors take the law into their own hands and seek to create, or recreate, the legal worlds they inhabit? There is a long, venerable and fascinating tradition of non-legal actors seizing the means of legal imagination. These individuals and groups (sometimes even quasi-institutions) are not formally authorized to make law but they act as if they are, adopting a consciously fictive jurisdiction.

Think, for example, of the work of peoples’ tribunals in international law - starting with the Russell Tribunal on the United State’s crimes in Vietnam in the late 1960s and through to the World Tribunal on Iraq in 2005 - that mobilise a certain (popular) understanding of international law to produce verdicts, raise popular consciousness, and critique (or maybe even redeem) international law.

Think also of the Feminist Judgments Projects (FJPs) or related exercises in critical or imaginative judgment-writing, in which legal scholars and feminist activists assume the position of judges and rewrite important appellate judicial decisions. In so doing, they seek to expose both law’s patriarchal structure but also its contingency, its hidden margin of freedom. Law, in the hands of would-be feminist judges, could always be otherwise.

Or think, in a very different political register, of those litigants (be they sovereign citizens or other individuals) who today - gathered under the sign of what mainstream legal actors pejoratively call ‘pseudolaw’ - mobilise a certain understanding of the common law and of its ancient history in order to assert a particular legal subjectivity and claim their rights. Indeed, sometimes these individuals  fashion an entire normative universe.

These examples are neither exhaustive nor privileged instances of the phenomenon - we could add many others, from exercises of corporate self-governance (the so-called ‘Facebook Supreme Court,’ for example) to heterodox gestures of self-determination (the sovereign claims of micronations, for example).

This conference within a conference presents an opportunity to explore these phenomena, and continues discussions about ‘prefigurative legality’ (Cohen and Morgan, 2023), or other related topics. Without wishing to circumscribe those discussions, we are interested in paper proposals (which we will organise into panels) or fully-formed panels (with 3/4 papers) that address the following indicative list of topics and questions:

-          How do we best think about this phenomenon of informal legality - as an instance of prefiguration, or performativity, or parody, or maybe through the lens of legal pluralism?

-          What is the relationship between the informal or everyday legal claim (to rights, jurisdiction, statehood, even) and the formal structures of state or international law?

-          Do these claims complete, compete with, or critique authorized law, or do they sit outside, beyond or underneath it?

-          What are the political possibilities and limitations of these exercises or practices?

-          What are historical examples of this phenomenon and what might those histories indicate about similar actions or actors today?

-          What understanding of legal form and legal method do these practices disclose?

-          What are the similarities and differences between supposedly left-wing invocations of law, and conservative mobilisations of law?

Process:

We invite paper (or panel) proposals for a series of interlinked panels on the above theme at the Law and Society Association 2025 Conference in Chicago, May 22-25. Our intention is to collate a series of paper (and panel) proposals into a mini-conference, crafting a conference within the wider conference setting of the LSA that sustains an intimate and intellectual conversation across the related panels. Below is the set of steps and deadlines leading up to the LSA in 2025 and what you need to do in order to participate. After the LSA, our intention is to work with participants to publish our papers as a collection in either a special edition of a scholarly journal or in the form of an edited book with a leading academic or trade publisher. Once we have the final conference-within-a-conference program we will commence initial discussions with participants (that is, well before the LSA itself) and gauge interest and ideas in future publications.

Timeline:

-          Send abstracts, panel proposals or thoughts to stephen.young@otago.ac.nz by 15 September 2024

-          We will notify people of acceptance or non-acceptance by 1 October 2024

-          Participants confirm participation by 7 October 2024

-          Participants/Organisers submit panels to LSA by 15 October 2024*

-          *Please note that participation in this mini-conference will “count” towards your participation limits for LSA

-          LSA: 22-25 May 2025

What to Submit?:

We are interested in receiving either paper abstracts on the above or related topics or fully-formed panels. If you wish to submit a paper abstract please include a 200 word abstract, with a title and also your institutional affiliation. If you wish to submit a fully-formed panel or series of panels, please ensure that the submission contains 3 or 4 abstracts of 200 words, with a title and institutional affiliation for each paper plus a 200 word explanation of the panel’s theme itself. We are open to receiving questions about different formats of panels (roundtables, Author-Meets-Reader sessions, etc) but we encourage people to contact us as soon as possible about this to facilitate organisation.

Please direct your questions to any of the 3 organisers at the following email addresses: b.golder@unsw.edu.au, ajcohen@temple.edu, stephen.young@otago.ac.nz. But final submission of proposals should be directed to stephen.young@otago.ac.nz

We do not have funding for this project so each participant needs to ensure their own travel to, registration at, and attendance at the LSA Chicago annual meeting.

Crowe on Natural Law With and Without God @drjoncrowe @unisqaus @AusJLR

Jonathan Crowe, University of Southern Queensland, School of Law and Justice, has published Natural Law with and without God at 4 Australian Journal of Law and Religion 17 (2024). Here is the abstract.

There is a common perception of natural law theory as characteristically (if not necessarily) theistic. This is sometimes presented as a drawback by secular critics of natural law thinking. Natural law authors themselves differ on the role of theism within their theories. Some have argued that natural law theory presupposes theism, while others have sought to give their views a secular basis. This article explores the relationship between natural law theory and theism. I begin by defining the characteristic features of the natural law outlook. I show that these core aspects of natural law thought can be rendered consistent with both theistic and non-theistic worldviews. However, these worldviews may yield different responses to some fundamental questions about natural law, such as where natural law comes from; how (and to what extent) humans can know about natural law; why humans should follow natural law; and whether natural law changes. I explore the consequences for natural law theories of theistic and non-theistic answers to these questions. I then offer some reasons for thinking that a version of theism incorporating what I term ‘qualified teleological perfectionism’ provides the most coherent foundation for the natural law outlook.

Download the article from SSRN at the link.

Giuliani on F. Calasso's Idea of the Ius Commune: Legal Historians and the Romanist Tradition, 1930-60

Adolfo Giuliani, InfoLaw Research Project; Max Planck Institute for Legal History and Legal Theory, is publishing F. Calasso's idea of the ius commune: Legal historians and the Romanist tradition, 1930-60 in Journal Clio & Themis (June 2024). Here is the abstract.

On 16th January 1933 the young Francesco Calasso (1904-1965) delivered a prolusion on a subject that was to take the new generation of legal historians by storm: "The concept of the ius commune." His prolusion not only changed the image of the legal past but also gave a new impetus to legal history placing it at the heart of legal science. Today we need to go back in time and look closely at what he said, because the ius commune, which in the following decades became a major key to understanding the legal past, is now unclear. Outline: I. 1933: Rethinking the ius commune II. The historical problem of the ius commune III. The Romanist tradition IV. The ius commune as explained in the year 1573 V. Calasso's methodological project VI. Conclusion: Romanists Vs legal historians I. 1933: Rethinking the ius commune.

Download the article from SSRN at the link.

Steel on Political Threads in Legal Tapestry: A Computational Analysis of Executive Branch Legal Interpretation, 1934-2022 @PennJCL @reillysteel @Princeton

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

How does the push and pull between law and politics shape the work of executive branch lawyers charged with providing "neutral" interpretations of the law? To shed light on this longstanding question, this Article undertakes the first large-scale computational analysis of legal interpretation in the executive branch of the United States federal government. Leveraging a novel dataset comprised of the texts of 12,879 pages of opinions issued by the Office of Legal Counsel (OLC), an elite unit of the Department of Justice (DOJ) that provides authoritative legal opinions to top executive branch officials, I use machine learning methods to explore markers of partisanship and ideology in these high-profile executive branch decisions. Several important findings emerge from this analysis. Broadly, I detect a significant partisan gap in the language used by the OLC. Yet this gap appears to have experienced limited growth in recent years, suggesting some degree of disconnect between the OLC and the broader, increasingly polarized political environment. Focusing on more fine-grained distinctions in the use of specific words and phrases, I find that Democrats and Republicans have differed along a number of salient dimensions, including the types of legal arguments invoked, substantive policy-related language, and institutional issues involving the separation of powers. One of the sharpest distinctions relates to executive power, with Republicans being more likely to adopt language associated with expansive presidential authority. I also find evidence that Republicans have more closely associated executive power with various markers of authoritarianism, such as language related to violence, the armed forces, and nationalism. But neither party appears to have consistently associated executive power with markers of democracy more than the other, complicating this picture. These findings have important implications for law and politics. To start, the existence of significant partisan differences in the OLC's language use casts doubt on the prospect that high-ranking executive branch lawyers will act as "neutral expositors" when rendering legal opinions. At the same time, the apparent disconnect from broader trends in polarization arguably offers some sliver of hope for those who would prefer neutrality. Another issue that has attracted both scholarly and popular attention relates to the role of executive branch lawyers in safeguarding against—or alternatively facilitating—democratic backsliding. My results highlight the risks of relying on executive branch lawyers to uphold constitutional guardrails against presidential overreach, especially amidst attempts by certain political actors to increase politicization within the DOJ. Such concerns underscore the potential importance of other institutions in preserving democratic norms.

Download the article from SSRN at the link.

Willinger on Missing Pieces: Gaps in the Record of Early American Decisional Law @AndrewWillinger @DukeFirearmsLaw @DukeLawJournalw

Andrew Willinger, Duke University School of Law, Center for Firearms Law, is publishing Missing Pieces: Gaps in the Record of Early American Decisional Law in the Duke Law Journal Online. Here is the abstract.

In its most recent major Second Amendment decision, NYSRPA v. Bruen, the Supreme Court suggested that historical laws “rarely subject to judicial scrutiny” are not especially illuminating because “we do not know the basis of their perceived legality.” Legal scholars have defended Bruen’s approach to historical evidence in part by arguing that the decision requires merely an artificially-limited historical inquiry into internal legal sources to discern overarching principles accepted across the country in the Founding Era. But modern-day lawyers and judges actually know far less than they might believe about whether certain laws were subject to judicial scrutiny during crucial eras of American history because many court decisions—especially from the Founding Era—were simply never recorded for posterity. Those omissions were not random and they do not represent merely what we today would consider insignificant holdings. Rather, omissions from the surviving record of decisional law are the product of curation by early court reporters, newspaper editors, and other actors often motivated by profit or partisan bias. Therefore, it is often perilous to extrapolate “the general law” from the extant, unrepresentative caselaw that happens to be preserved today. This Essay examines how the non-legal choices and preferences of those who recorded early American decisional law prior to the gradual emergence of more consistent reporting of judicial decisions in the late 19th century shaped the historical record of early decisional law that exists today. Part I chronicles the largely inconsistent and at times chaotic practice of court reporting at and after the Founding and explores how judicial decisions were preserved and published during that time. Part II addresses how modern originalist theories should approach and appreciate the “curated” nature of legal history from that time. I argue that the record of early American decisional law has been profoundly influenced by various actors (legal and non-legal) according to considerations other than preserving an accurate, comprehensive snapshot of “general law” at the time—namely, based on motives including profit and partisanship. This reality, I suggest, means that it is crucial to expand the universe of historical sources when possible to capture what may be missing from the universe of preserved decisional law.

Download the essay from SSRN at the link.

Now Available: Peter Charles Hoffer: The Supreme Court Footnote: A Surprising History (NYU Press, 2024) @NYUpress

Now available: Peter Charles Hoffer, The Supreme Court Footnote: A Surprising History (NYU Press, 2024). Here from the publisher's website is a description of the book's contents.

In May 2022, a seismic legal event occurred as the draft majority opinion in Dobbs v. Jackson Women’s Health was leaked. The majority aimed to eliminate constitutional protection for abortion. Amidst the fervor, an unnoticed detail emerged: over 140 footnotes accompanied the majority opinion and dissent. These unassuming annotations held immense significance, unveiling justices’ beliefs about the Constitution’s essence, highlighting their controversial reasoning, and laying bare the vastly different interpretations of the role of Supreme Court Justice. The Supreme Court Footnote offers a study of the evolution of footnotes in US Supreme Court opinions and how they add to our constitutional understanding. Through a comprehensive analysis, Peter Charles Hoffer argues that as justices alter the course of history via their decisions, they import their own understandings of it through the footnotes. The book showcases how the role of the footnote within Supreme Court opinions has evolved, beginning with one of the first cases in the history of the court, Chisholm v. Georgia in 1792 (a case concerning federalism vs. states’ rights) and ending with the landmark Dobbs v. Jackson case in 2022. Along the way, Hoffer demonstrates how the footnotes within these decisions reflect the changing role of the Supreme Court Justice, along with how interpretations of the constitution have transformed over time. At once surprising and revealing, The Supreme Court Footnote proves that what appears below the line is not only a unique window into the history of constitutional law but also a source of insight as to how the court will act going forward.

Newly Published: Newman on Inferior Courts: The History of the Existing and Former Federal Trial and Appellate Courts of the United States, 1789-2024 (Hein, 2024) @HeinOnline

 Newly published:

Jon O. Newman, Inferior Courts: The History of the Existing and Former Federal Trial and Appellate Courts of the United States, 1789-2024 (Hein, 2024).

Here from the publisher's website is a description of the book's contents.

While the Constitution places the judicial power in “one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish,” it is essential to understand that “inferior” denotes their rank below the Supreme Court—not their importance or quality.

This book, illustrating the fascinating 235-year history of America’s Federal Trial and Appellate Courts, is the first book to offer a comprehensive, court-by-court and state-by-state account of these vital institutions. Unlike other books that analyze court decisions, this book meticulously details and analyzes:

• The creation and evolution of federal trial and appellate courts from 1789 to 2024
• The increase in the number of judges and the development of court jurisdiction
• Former federal courts, including those abolished or merged into existing structures
• Federal statutes affecting the courts

Explore the rich statutory history of courts both still in existence and those that have been abolished. Sourced from the 296 volumes of the United States Statutes at Large, federal statutes in the United States Code, and the federal rules of civil, criminal, and appellate procedure, this book is a necessity for anyone interested in the history of the federal courts.

Plambeck on The Constitutional History of the Free Elections Clause @unc_law

Charles Plambeck, University of North Carolina School of Law, is publishing The Constitutional History of the Free Elections Clause in volume 103 of the North Carolina Law Review. Here is the abstract.

Many state constitutions contain a Free Elections Clause that requires that "elections ought to be free." The function of these clauses is to prevent disenfranchisement through gerrymandering and other tactics. This paper traces the origins of this phrase to the constitutional settlement of 1688, and before that to the First Statute of Westminster of 1275. The 750 year history shows the vitality of the clause to present day voting rights contests.

Download the article from SSRN at the link.

Call For Contributions, Research Handbook on Gender, History, and Law, Edward Elgar

 Call For Contributions

Call for Contributions for Research Handbook on Gender, History, and Law (Edward Elgar)

As part of Edward Elgar's Research Handbooks in Gender and Law Series edited by Robin West and Alexander Maine, this volume on Gender, History, and Law aims to bring together critical and thought-provoking contributions on the most pressing topics, issues and approaches within legal and gender history. The collection aims to set the agenda in the field and serve as the most important and up-to-date point of reference for researchers as well as students, policy-makers, and lawmakers. 

We are aiming for about 30 essays of 8,000-10,000 words by scholars of legal and gender history on any topic that fits within the book's broad themes, including but not limited to gendered history within legal categories such as family, criminal law and international law, on particular historical periods, on specialist topics such as capitalism and labor, sexuality, race, identity, citizenship, the legal profession and courts, and on sources and methodology. 

The Research Handbook will be published in English, but we seek to provide a broad global perspective. To fulfill its aim of providing cross-cutting scholarship in law and history, each contribution should explore perspectives on what it means to do legal history in the chosen area in the context of the author's own approach.

Manuscripts must be original and not published elsewhere, and are due to the editors by July 1, 2025. Publication is anticipated to be in the summer of 2026.

Please submit abstracts by September 30, 2024. For questions and to submit abstracts, please feel free to reach out to any of us.

Rosemary Auchmuty (r.auchmuty@reading.ac.uk)

Caroline Derry (caroline.derry@open.ac.uk)

Danaya Wright (wrightdc@law.ufl.edu) 

Steilen on Magna Carta and the Origins of Legislative Power @MJSteilen @UBSchoolofLaw

Matthew J. Steilen, SUNY Buffalo School of Law, has published Magna Carta and the Origins of Legislative Power as a University at Buffalo School of Law Legal Studies Research Paper. Here is the abstract.

This article argues that Magna Carta has a central place in the development of debate and deliberative politics in parliament. Its focus is chapter 12 of the Magna Carta of 1215, in which the king promised not to levy certain taxes “unless by the common counsel of our realm.” Conventionally these words are interpreted to require consent before levying a tax. Against this view, the article argues that “common counsel” meant public deliberation or debate. The source of these ideas was the cathedral schools, the forerunners of the first European universities. Evidence for this “school theory” of common counsel is presented in two parts. First is a study of the career of Stephen Langton, who taught theology in the cathedral schools of Paris. Langton came to England in 1213 to serve as archbishop of Canterbury, and period sources suggest he played a central role in encouraging dissident barons and negotiating Magna Carta. The article addresses scholarly questions about the reliability of these sources. The second part is a study of London, its government, and political culture. The article argues that London’s political traditions provided a fertile environment for Langton’s advice to the dissident barons about how to pursue their grievances against King John. Finally, the article presents an argument against the conventional interpretation of “common counsel” as a requirement of consent, addressing the meaning of the relevant Latin terms, usage in Magna Carta and related documents, law and practice relating to taxation, theories of kingship, and the meaning of “parliament.”

Download the article from SSRN at the link.

Houghton, Murray, and O'Donoghue on Kenstituent Power: An Exploration of Feminist Constitutional Change in Greta Gerwig's Barbie @ruth_houghton @NCLLawSchool @aoifemod @BarbieFemCon @qubschooloflaw

Ruth Houghton and C. R. G. Murray, both of Newcastle Law School, and Aoife O'Donoghue, Queen's University, Belfast School of Law, are publishing Kenstituent Power: An Exploration of Feminist Constitutional Change in Greta Gerwig’s Barbie in Feminist Theory (2024). Here is the abstract.

Greta Gerwig’s Barbie explores the influence of childhood dream worlds and toys over adult life, and the singular importance of a toy which represents an empowered woman. But this story plays out against the backdrop of deep societal challenges. That the subject matter of the film is light does not detract from its cultural significance; it enhances its reach and thereby its influence. Constitutional change, property, dissent, inequality and revolution are not the B-plot of the film, they suffuse every scene and motivate its major characters. In this article we explore the significance of BarbieLand as a supposed embodiment of a feminist utopia and the extent to which Gerwig is confronting viewers with difficult questions about authority and just governance in the RealWorld.

Download the article from SSRN at the link.

Crosswell on The Common Law and the Wealth of Nations @bakermckenzie

Stephen Crosswell, Baker McKenzie, has published The common law and Adam Smith's Wealth of Nations. Here is the abstract.

Understanding the relative effectiveness of common law and legislation led systems is plainly relevant as the UK unshackles itself from the regulatory system of the European Union and as discussions take place on Hong Kong’s future as a common law jurisdiction to service China’s financial markets and international trade. However, there are much bigger shifts in the world that move this issue to a level of fundamental importance. Adam Smith developed a theory of the ‘four-stage’ advancement of society - from hunter-gatherer to herder, then agricultural and finally commercial society. He developed this theory at a time when England had substantially transitioned out of the agricultural stage, through what became known as the Agricultural Revolution, into its role as the seat of the Industrial Revolution and the leading commercial centre in the world. He, and other jurists of the time, saw the debate about whether legislation could effectively drive that transition as the central question of their time, the answer to which would, in the long run, affect the fate of nations and Empire. They had a clear view on this, informed by the study of thousands of years of human history. For them, the common law was vastly superior. This article examines the debate that took place on these issues at the time that England was going through the Industrial Revolution, the Benthamite revolution that followed and the modern basket of rights that obfuscate the key question that policy-makers should be asking: if the common law was so successful in driving the Industrial Revolution, what confidence can we have in a legislated approach to the Technology Revolution?

Download the article from SSRN at the link.

Webb on The Lost History of Judicial Restraint @CathULaw @YaleLawSch @NotreDameLRev

Derek Webb, Yale Law School, is publishing The Lost History of Judicial Restraint in volume 100 of the Notre Dame Law Review. Here is the abstract.

This article attempts to answer a question of great contemporary significance – what role courts should play in our democracy. Specifically, it attempts to answer the question of what standard of review courts should use in deciding constitutional cases. It does so by recovering a lost history of how American jurists conceived that role from the American founding to the close of the nineteenth century. It draws upon a voluminous and diverse array of nineteenth century treatises, legal dictionaries, encyclopedias, case books, and manuals of federal practice, on the one hand, most of which have never before been examined, and federal and state supreme court cases in all fifty states on the other, to show, contra prominent legal historians and many leading contemporary originalists, that by the close of the nineteenth century, there was an overwhelming consensus in favor of the presumption of constitutionality, clear error rule, and reasonable doubt standard. James Bradley Thayer, who popularized those rules and gave them a unique theoretical justification in his classic 1893 article “The Origin and Scope of the American Doctrine of Constitutional Law,” did not just invent those rules. He was not, as Learned Hand put it, and many of his critics have subsequently agreed, the “prophet of a new approach.” Rather, he was just one – albeit distinguished and influential – member of a vast yet now forgotten chorus of treatise writers and jurists throughout the country, eventually in all fifty states, who defended a cautious, deferential, and restrained approach to invalidating the acts of democratic bodies. My thesis is that over the course of America’s first century, there emerged a much broader and richer historical consensus around judicial restraint than the advocates or critics of restraint have ever acknowledged. From its earliest origins in the transatlantic constitution, and through piecemeal legal practice in state and federal courts, before and after the creation of the Constitution, the “Thayerian” “rules of administration” associated with judicial restraint were eventually adopted by both the U.S. Supreme Court and all fifty state supreme courts in the country. This has implications not only for legal history but for understanding the scope of the judicial power and duty today. By attempting to recapture this mostly "lost history of judicial restraint," I argue that during America’s first century, through the “discussions” in legal treatises and the “adjudications” in all the country’s apex supreme courts, all pointing overwhelmingly and uniformly in the direction of restraint, the Constitution’s standard of review, and the very meaning of "the judicial power" in Article III, appears to have been fixed or “liquidated" during America's first century.

Download the article from SSRN at the link.

Howe on For a Justice-To-Come: Milo Rau's Utopian Realism

Steven Howe, University of Lucerne, has published For a Justice-to-Come: Milo Rau’s Utopian Realism at 60 Seminar 108 (May 2024). Here is the abstract.

One of the most prolific political theatre makers in Europe today, Milo Rau is known for his commitment to a realist art of possibility—a "Möglichkeitsrealismus," as he defines it, devoted to opening space for envisioning possible alternatives to the status quo. Drawing on Ernst Bloch's writings on utopia, this article argues for an understanding of Rau's artistic practice as a kind of "concrete utopianism" that materially engages the world so as to imagine—and enact—new possibilities for improvement and transformation. Via a reading of Rau's Kongo Tribunal (2015), an attempt is made to show how, by staging the tribunal in the here and now of performance, the artist seeks to disclose the real but not yet realized possibilities available in the present, giving form to an alternative institutionality—and an alternative practice of justice—that is made fully graspable in the imagination and in reality. As a material act of imagining otherwise, the Kongo Tribunal refuses the closure of the present, inviting spectators to step back and recognize the institutionalized forms of law and justice not as fixed but variable—and thus (still) open to change.

Henderson on Zorro: Everyperson's Moral Vigilante @UofOklahomaLaw @OSJCrimLaw

Stephen E. Henderson, University of Oklahoma College of Law, is publishing Zorro: Everyperson's Moral Vigilante in the Ohio State Journal of Criminal Law. Here is the abstract.

Zorro (Amazon 2024) is hundreds of years in the making -- from medieval ballads of Robin Hood; to the fiction of Alexandre Dumas, Baroness Orczy, and the legend of Mexican bandits; to the Johnston McCulley 1919 original; to comics like Daredevil and Batman; to scores of Zorro derivatives from the minds of McCulley, Walt Disney, and many others. At this point, it would be impossible to identify and duly credit the countless inspirations that together form this early-California vigilante. But such rich heritage might provide something more than literature and entertainment: if there is an everyperson's conception of a moral vigilante, Zorro might have transfigured into it by now. Perhaps it is thus possible to back into a philosophically defensible construct of moral vigilantism from this popular art, or perhaps it is that very genesis that provides its own legitimacy. Whichever the case, this article serves both to celebrate the story -- both the original McCulley work and the most recent television derivative -- and to begin its deconstruction. After centuries of refinement, Zorro as moral vigilante is a construct worthy of literary, philosophic, and legal attention.

Download the article from SSRN at the link.

Grajzl and Murrell on From Status to Contract? A Macrohistory from Early-Modern English Caselaw and Print Culture @wlunews

Peter Grajzl, Washington and Lee University, Department of Economics; CESifo, and Peter Murrell, University of Maryland, Department of Economics, have published From Status to Contract? A Macrohistory from Early-Modern English Caselaw and Print Culture as CESifo Working Paper No. 11246. Here is the abstract.

Most development models emphasize a growth in the scope of individual choice as the law becomes impartial, relevant to all. An early expression of this conceptualization appeared in the 19th century, when Henry Maine coined his celebrated dictum that progressive societies move from status to contract. We conduct a macro-historical quantitative inquiry into Maine's dictum using corpora on 16th- to 18th-century caselaw and print culture. Upon conceptualizing the notions of contract and status, we train word embeddings on each corpus and produce time series of emphases on contract, status, and contract versus status. Only caselaw exhibits an increasing emphasis on contract versus status, and even that trend is discernible only before the Civil War. After 1660 in caselaw, emphases on both contract and status increase, with no trend in contract versus status. After 1660, caselaw trends reflect the increasing importance of equity compared to common-law. In print culture, religion consistently emphasizes contract over status, while politics exhibits a downward-trending emphasis on contract versus status. VAR estimates reveal that the applicable ideas in caselaw and print culture coevolved.

Download the article from SSRN at the link.

Rabanos on Going Back to (Law as) Fact. Some Remarks on Olivecrona, Scandinavian Legal Realism, and Legal Notions as Hollow Words @julesrabanos @Univerzitet_BG

Julieta A. Rabanos, University of Belgrade, has published Back to (Law as) Fact. Some Remarks on Olivecrona, Scandinavian Legal Realism, and Legal Notions as Hollow Words at Materiali per una storica della cultura giuridica 205-232 (1) 2023. Here is the abstract.

The aim of this paper is to critically reconsider some of the main tenets underlying Karl Olivecrona’s works. The first two sections are devoted to a brief reconstruction of his position on methodology for the study of legal phenomena, including the endorsement of philosophical realism and the enterprise of demystifying legal language through linguistic therapy (§ 2), as well as his particular conception of legal notions as hollow words (§ 3). I will then provide a brief analysis of a central legal concept – that of “authorityµ – to show how Olivecrona’s methodological framework can be applied (§ 4). The last two sections are devoted to the analysis and evaluation of three possible criticisms of Olivecrona’s claims as a legal realist (§ 5) and some brief concluding remarks on the usefulness of Olivecrona’s approach for contemporary legal philosophy (§ 6).

Download the article from SSRN at the link.

Sevel on Historical Origins of Raz's Legal Philosophy @MichaelSevel @SydneyLawSchool

Michael Sevel, University of Sydney Faculty of Law, has published Historical Origins of Raz's Legal Philosophy. Here is the abstract.

Joseph Raz (1939-2022) was one of the most influential philosophers of law of the last half century. But the reception of his legal philosophy has been shaped by relatively narrow debates about the nature of authority and the commitments of Hartian legal positivism. A more comprehensive assessment of his achievements begins by considering the complex historical origins of his legal philosophy. I consider three distinct historical strands relevant to understanding many of the central features and the general framework of his philosophy of law: developments in the mid-twentieth century in moral, political, and legal philosophy regarding the concept of a reason for action, of the nature of political authority, and the systemic character of positive law, respectively. Raz’s legal philosophy can profitably be viewed as a novel convergence and synthesis of these many developments and influences, as an ambitious attempt to develop a systemic theory of positive law in terms of the concept of authority which is in turn explained from the perspective of practical reason.

Download the article from SSRN at the link.

Ferguson on The Ciceronian Origins of American Law and Constitutionalism @jackferguson100 @HarvardJLPP @NDLaw

Jack Ferguson, Notre Dame Law School, is publishing The Ciceronian Origins of American Law and Constitutionalism in volume 48 of the Harvard Journal of Law & Public Policy. Here is the abstract.

In his treatise on American constitutionalism, John Adams wrote that “as all the ages of the world have not produced a greater statesman and philosopher united than Cicero, his authority should have great weight.” This Article considers the Founding generation’s intellectual debt to Marcus Tullius Cicero, the classical Roman statesman-philosopher, and what it tells us about how the Founders approached law and constitutionalism. There are ongoing scholarly efforts to recover the general law tradition and classical lawyering of the eighteenth century, but as of yet, no account has been given of Cicero’s prominent role in that era. This Article gives that account. This Article first examines Cicero’s legal thought and how it shaped notions of natural law and the law of nations (or general law) in the seventeenth and eighteenth centuries. Grotius, Pufendorf, Coke, Vattel, Blackstone, Lord Mansfield, James Wilson, Joseph Story, and others grounded their work in Cicero’s writings on law. As a case study, this Article shows how Cicero contributed to the formation of American judicial review. Cicero’s interpretive principles dealing with hierarchies of law were adopted by Federalist No. 78, Alexander Hamilton’s prominent defense of judicial review. This Article then considers Cicero’s work on republicanism and constitutionalism. The Founding generation’s concepts of popular sovereignty, mixed government, checks and balances, and the rule of law can be traced back to Cicero, who was the primary expositor of the classical republican tradition. Finally, this Article evaluates Cicero’s influence on eighteenth-century notions of the ideal executive. As a constitutional theorist, Cicero laid the conceptual groundwork for Hamilton’s unitary energetic executive. And by his historical example as consul of Rome, Cicero inspired Hamilton’s efforts in the Washington administration to put down the Whiskey Rebellion of 1794, an early historical precedent on insurrection and the domestic use of military force. Cicero influenced the Founders’ work in numerous ways. To the extent their law is ours today, his relevance endures.

Download the article from SSRN at the link.

Rackstraw on When Reality TV Creates Reality: How "Copaganda" Affects Police, Communities, and Viewers @emmarackstraw

Emma Rackstraw, Harvard University, has published When Reality TV Creates Reality: How “Copaganda” Affects Police, Communities, and Viewers. Here is the abstract.

Television shows with police officer protagonists are ubiquitous on American television. Both fictional shows and reality shows portray a world where criminals are nearly always apprehended. However, this is a distortion of reality, as crimes mostly go unsolved and police officers infrequently make arrests. What does the omnipresence of this genre mean for the general public's conception of police, for the practice of policing, and for the communities being policed? I use department-level and officer-level arrest data to find that arrests for low-level, victimless crimes increase by 20 percent while departments film with reality television shows, concentrated in the officers actively followed by cameras. These arrests do not meaningfully improve public safety and come at the cost of the local public's confidence. I then document quasi-experimentally and experimentally that these shows -- particularly their overrepresentation of arrests -- improve non-constituent viewer attitudes towards and beliefs about the police. The results are consistent with "copaganda" shows inflating trust in police nationally while subjecting some to harsher but not more effective enforcement. I consider the implications for police reform.

Download the article from SSRN at the link.

Legal Imaginaries Across the Asia-Pacific: Vernacular Law and Literatures: September 5, 2024: Draft Program

Legal Imaginaries across the Asia-Pacific: Vernacular laws and literatures: September 5, 2024, at the ANU College of Law.

Download the program here. 

Here is a description of the event.

The Asia-Pacific is our region – important, volatile and diverse. Although there are many shared similarities in law and culture – including not least the history and legacy of colonialism – there are also telling differences. In recent years the law and literature movement has articulated the relevance of a study of culture in understanding law, and of the power of literary and other creative practices to more deeply engage with the legal history of particular places, to critique their legacy, and to imagine new futures. Postcolonialism, Afro-Futurism, Legal Imaginaries and Prefigurative Law are names that articulate this trend.

Particularly when questions of the relationship between law and history on the one hand, and law’s capacity to respond to the crises of the 21st century on the other, are urgent, linking law and literature in these ways is a powerful and creative tool for legal education and reform. It offers the potential to enrich the work of students of law, scholars, legal experts, and the wider public.

Yet until recently, the interdisciplinary approach of law and literature remains largely wedded to a traditional Western literary canon. But there are new trends offering enormous promise for enriching the plurality and specificity of law and literature, including work on Hong Kong, Singapore, India; not to mention a variety of scholars engaging with indigenous narrative and legal traditions in Australia, and on the west coast of the American continent.

The workshop is part of steps to build a new network that targets a specific geographic constellation and identifies, through the language of ‘the imaginary’ and ‘vernacular’, a specific set of theoretical resources. ‘Laws and literatures’ both frames the endeavour in relation to an established field and pluralises it in significant ways.

The workshop would be of interest to academics and students, particularly those in literature, law and the humanities, legal theory, and postcolonial studies. 

It will feature new work from prominent and emerging scholars working in law and literature from right across the region -- from Australia, Aoteoroa, the Pacific and Mexico to Hong Kong, Singapore, and Indonesia – showcasing remarkable new directions with a common geographic and theoretical orientation.