Berger on Property to Race/Race to Property @bethanyrberger @UConnLaw

Bethany Berger, University of Connecticut School of Law, has published Property to Race/Race to Property. Here is the abstract.

In the United States, property and race shape each other. This has been true since colonization and is equally true today. First, property relationships shaped the distinct forms racism took for different racialized groups. Racism exists to explain and justify power and privilege of one group over another. But the goals of power and privilege vary across different groups, resulting in different stereotypes, legal and social barriers, and modes of control. This Article examines the racialization of African Americans, Indigenous peoples, ethnic Chinese, and racialized “off-White” ethnic groups to reveal the crucial role that a group’s relationship to valued resources plays in its distinct trajectory of racism. Second, racial relationships shaped property law for everyone in the United States. The power to foreclose for debts, the power of local governments to zone, the public goods attached to residence, the scope of the welfare state’s “new property”—in these areas and many more, efforts to control, exclude, and take from racialized groups changed what property means today. This Article reveals the hidden histories of racially neutral rules and shows how they have undermined the security and equitable distribution of property for all. Today, property law and rhetoric are often used to undermine measures that would increase the security, affordability, and autonomy that justify property in the first place. Revealing the racial roots of modern property rules, I hope, will create space for reform to achieve the liberatory and egalitarian norms that undergird our commitment to property.

Download the article from SSRN at the link.

The IJLC Special Issue In Celebration of Peter Fitzpatrick and His Scholarship: Volume 17, No. 1 (March 2021) @IJLC_CUP

From David Sugarman, Professor Emeritus, Law School, Lancaster University, Senior Associate Research Fellow, Institute of Advanced Legal Studies, University of London, Senior Associate, Centre for Socio-Legal Studies, University of Oxford:

The International Journal of Law in Context has published a special issue in celebration of the late Peter Fitzpatrick and his scholarship. Professors Sugarman and Abdul Paliwala are the guest editors. 

 

 

PETER FITZPATRICK (1941–2020)

 

Peter Fitzpatrick (1941–2020) was a much-loved and inspirational scholar, and a wonderful friend and mentor. He contributed immeasurably to the intellectual, organisational and cultural life of post-colonial legal studies, critical legal studies, and law and the humanities – fields he helped to consolidate. His remarkable influence, however, extends well beyond his scholarship. He taught and supervised an incredible number of people, amounting to two or even three generations of students and colleagues. And they all admire and adore him.

 

In this Special Issue, ten friends, former colleagues and students of Peter’s contribute new insights into his personal and professional development, and celebrate his life and many achievements. We begin with an essay that adds to what we already knew about Peter’s personal and professional biography, and assesses and clarifies his key ideas and their intersection with his ethics and lived experiences (Sugarman, in this issue). It provides a backdrop and context for the subsequent papers that elucidate Peter’s significant contribution to scholarship, engage with his ideas and illuminate specific junctures in his life. The issue ends with an edited transcript of Peter’s final seminar in February 2020 and addresses a variety of themes in his work, including his critique of H.L.A. Hart, his notion of ‘slow reading’, the relationship between theory and grounded engagement with people, the idea of community and relationality, the role of the critic, self-criticism, the impossibility of law, decoloniality, occidentalism, mythologies and governmentality, and the significance of narratives (Paliwala, in this issue).

 

We hope these papers convey something of the special person that was Peter: the person whose support as a supervisor and friend regularly exceeded the norm; his tireless innovation; his community building; his empathy towards ‘outsiders’ and ‘others’; and his delightful individuality and sense of humour.

 

 

Editorial introduction

David Sugarman and Abdul Paliwala

 

Becoming Peter Fitzpatrick (1941–2020)

David Sugarman

 

Transformation

William Twining

 

Post-colonial attitudes and the relevance of incommensurability

Eve Darian-Smith

 

Not to save, but to encounter: Fitzpatrick as transnational jurisprudent

Sundhya Pahuja

 

Myth and concealment at colonial law’s foundations

George Pavlich

 

Deconstruction, dissipation and death, and the ‘casting-away of the law’?

Upendra Baxi

 

A concise note on Peter Fitzpatrick’s ‘Racism and the innocence of law’

Patricia Tuitt

 

Improvising with Peter

Sara Ramshaw

 

How to do things with Foucault (legally)

Ben Golder

 

Ultimate conversation: Fitzpatrick at Warwick, February 2020

Abdul Paliwala

Here is a link to the issue and its content.

See also this post at the Cambridge Core Blog.

Adler on The Shifting Law of Sexual Speech: Rethinking Robert Mapplethorpe @nyulaw

Amy Adler, New York University of Law, is publishing The Shifting Law of Sexual Speech: Rethinking Robert Mapplethorpe in volume 2020 of the University of Chicago Legal Forum. Here is the abstract.

This Article explores the dramatic changes that have occurred over the last thirty years in the First Amendment doctrines governing sexual speech. As a prism through which to evaluate these changes, I consider the thirtieth anniversary of the landmark Robert Mapplethorpe trial, the first censorship prosecution against an art museum in the history of this country and the defining battle in the culture wars that roiled post-Reagan America. The target was the exhibition of formally beautiful, sexually hard-core photographs by Robert Mapplethorpe on view at a museum in Cincinnati. The controversy that erupted over those images—fueled by anxieties about AIDS, homosexuality, sadomasochism, race, government funding for the arts, and the vanishing boundary between art and pornography—spilled out of the courtroom into popular culture and into the halls of the United States Congress. I analyze the shifting trajectories over the years of the two legal doctrines that were at the center of the Mapplethorpe case—obscenity law and child pornography law—and I show the starkly divergent paths these two areas of law have taken. While obscenity law has receded in importance, and while the allegedly obscene photos from the trial have become prized in museums and in the art market, child pornography law has followed the opposite course. In contrast to the allegedly obscene pictures, which pose almost no legal risk today, the two photographs of children that were on trial have become more, not less, controversial over the past thirty years, to the point where curators are quietly reluctant to show these images at all. In my view, these photos now occupy a space of legal and moral uncertainty. What explains these differing legal and artistic trajectories? What happened to change the dynamics of showing these works? In tracing the divergent paths taken by these two doctrinal areas, I explore not only the stark changes in the law of sexual speech, but ultimately the mutually productive relationship between censorship law and culture. Free speech law governed this chapter in the culture wars, yet in surprising ways, the changing social norms unleashed by the culture wars have also governed free speech law.

Download the article from SSRN at the link.

Bandes on From Dragnet to Brooklyn 99: How Cop Shows Excuse, Exalt and Erase Police Brutality @BandesSusan @routledgebooks

Susan A. Bandes, DePaul University College of Law, is publishing From Dragnet to Brooklyn 99: How Cop Shows Excuse, Exalt and Erase Police Brutality in Routledge Handbook of Police Brutality in America (Thomas Aiello, ed., Routledge, 2022).

Cop shows originated as a literal “copoganda” effort: explicit partnerships with law enforcement agencies to transform the image of bumbling Keystone Cops into straight arrow Sergeant Joe Friday and lovable Andy Griffith. Though the explicit partnerships have faded away, the template they established has flourished, in part by adapting to changed times without challenging certain basic cop show verities — principally, the centrality of the police point of view. Police use of force, even when mistaken, is framed as essential, understandable, or forgivable: an act taken in the righteous pursuit of justice. These depictions matter. Portrayals of policing on TV — including fictional portrayals — exert enormous influence on public perceptions of how policing works and help shape both law and public policy. Part I traces the origins of the cop show. Part II illustrates how cop shows construct and transmit social norms that humanize and valorize law enforcement — both the job and those who do it. Part III considers the question of what constitutes police brutality. It concludes that cop shows fall short in depicting police brutality both in its narrower definition: action taken to degrade and dehumanize, and in its broader definition: the use of excessive force. Part IV explores the mechanisms by which police brutality and the harms it visits on people and communities are erased. Finally, Part V asks whether cop shows can do better. The chapter concludes that the failures of the genre to grapple with accountability and reform are not baked into the medium. The field is rife with possibilities for expanding the universe of empathic engagement, and for illustrating both the harms of police violence and the difficult tradeoffs inherent in the effort to reimagine public safety.

Download the essay from SSRN at the link.

Law Text Culture: Call For Proposals @law_text

 Law Text Culture is seeking proposals for special issues, as it does annually. Please send your proposals to the Managing Editor by May 1st of the year, for publication the following year. However, note that the next deadline for proposals (because of the COVID-19 emergency) is June 11, 2021 (for publication in 2022). More information is available here.

Newly Published: Stephanie Elsky, Custom, Common Law, and the Constitution of English Renaissance Literature (OUP, 2021) @srelsky @RhodesCollege @OxUniPress

Stephanie Elsky, Rhodes College, has published Custom, Common Law, and the Constitution of English Renaissance Literature (Oxford University Press, 2021). Here from the publisher's website is a description of the book's contents.

Custom, Common Law, and the Constitution of English Renaissance Literature argues that, ironically, custom was a supremely generative literary force for a range of Renaissance writers. Custom took on so much power because of its virtual synonymity with English common law, the increasingly dominant legal system that was also foundational to England's constitutionalist politics. The strange temporality assigned to legal custom, that is, its purported existence since 'time immemorial', furnished it with a unique and paradoxical capacity--to make new and foreign forms familiar. This volume shows that during a time when novelty was suspect, even insurrectionary, appeals to the widespread understanding of custom as a legal concept justified a startling array of fictive experiments. This is the first book to reveal fully the relationship between Renaissance literature and legal custom. It shows how writers were able to reimagine moments of historical and cultural rupture as continuity by appealing to the powerful belief that English legal custom persisted in the face of conquests by foreign powers. Custom, Common Law, and the Constitution of English Renaissance Literature thus challenges scholarly narratives in which Renaissance art breaks with a past it looks back upon longingly and instead argues that the period viewed its literature as imbued with the aura of the past. In this way, through experiments in rhetoric and form, literature unfolds the processes whereby custom gains its formidable and flexible political power. Custom, a key concept of legal and constitutionalist thought, shaped sixteenth-century literature, while this literature, in turn, transformed custom into an evocative mythopoetic.

 

Newly Published: Penelope Geng, Communal Justice in Shakespeare's England (University of Toronto Press, 2021) @penelope_hg @utpress

Penelope Geng, Department of English, Macalester College, has published Communal Justice in Shakespeare's England: Drama, Law, and Emotion (University of Toronto Press, 2021). Here from the publisher's website is a description of the book's contents.

The sixteenth century was a turning point for both law and drama. Relentless professionalization of the common law set off a cascade of lawyerly self-fashioning – resulting in blunt attacks on lay judgment. English playwrights, including Shakespeare, resisted the forces of legal professionalization by casting legal expertise as a detriment to moral feeling. They celebrated the ability of individuals, guided by conscience and working alongside members of their community, to restore justice. Playwrights used the participatory nature of drama to deepen public understanding of and respect for communal justice. In plays such as King Lear and Macbeth, lay people accomplish the work of magistracy: conscience structures legal judgment, neighbourly care shapes the coroner’s inquest, and communal emotions give meaning to confession and repentance. An original and deeply sourced study of early modern literature and law, Communal Justice in Shakespeare’s England contributes to a growing body of scholarship devoted to the study of how drama creates and sustains community. Penelope Geng brings together a wealth of imaginative and documentary archives – including plays, sermons, conscience literature, Protestant hagiographies, legal manuals, and medieval and early modern chronicles – proving that literature never simply reacts to legal events but always actively invents legal questions, establishes legal expectations, and shapes legal norms.

 

Davies on The Holmeses at the Supreme Court @GB2d @georgemasonlaw

Ross E. Davies, George Mason University School of Law; The Green Bag, is publishing The Holmeses at the Supreme Court in Holmes Reads Holmes: Reflections on the Real-Life Links Between the Jurist and the Detective in the Library, In the Courtroom, And on the Battlefield (The Lawbook Exchange, Ltd., 2020). Here is the abstract.

When Oliver Wendell Holmes, Jr., the famous real-life lawyer, arrived at the U.S. Supreme Court in 1902, he brought with him -- consciously or not, I do not know which -- Sherlock Holmes, the famous fictional detective. After that, Sherlock Holmes began appearing in many context involving the Supreme Court and individual Justices. This is a survey of those Holmesian-Sherlockian developments during the first three-and-a-half decades of the 20th century.

Download the essay from SSRN at the link.

Katz on "That Sty for Fattening Lawyers In/On the Bones of Honest Men": The Palace Court in Little Dorrit

Leslie Katz has published ‘That Sty for Fattening Lawyers In | On the Bones of Honest Men’: The Palace Court in Little Dorrit. Here is the abstract.

In Little Dorrit, there are two explicit references to the Palace Court, a court now extinct and largely forgotten. For three reasons, this paper discusses that court: first, to provide a context for the two explicit references to it in the novel; secondly, because the court plays a previously-unidentified significant role in the plot of the novel, even ignoring the novel’s two explicit references to it; and thirdly, because the court played a previously-unidentified significant role in Dickens’s own life, which role probably caused him to include in the novel the two references to the court as a kind of inside joke.

Download the article from SSRN at the link.

Baker and Green on the Non-Existence of a "Legal Name" @j_remy_green @AustinACBaker @HRLROnline

Austin A. Baker, Rutgers University, New Brunswick, and J. Remy Green, Cohen & Green, P.L.L.C.; Boston University School of Law, are publishing There is No Such Thing As a 'Legal Name': A Strange, Shared Delusion in volume 53 of the Columbia Human Rights Law Review (2021). Here is the abstract.

As far as federal, most state, and any other source of American law is concerned — as several courts in the early 20th Century put it: there is no such thing as a legal name. Yet, the phrase “legal name” appears everywhere, often beside threats of the penalties of perjury if you give something other than your legal name. For example, transgender people often hear “well, this has to say your ‘Legal Name,’” as an explanation for why they must be referred to by their deadname. One would assume, given the widespread use, surely must be a clear, unambiguous name that constitutes a person’s “legal name” — as well as “legal” reasons an organization insists on using that name, right? Well. Not so much. Thus, this Article seeks to highlight the (legal, moral, and philosophical) wrongness of that notion. We begin by explaining the practical significance of this mistake (the mistake being something like, “legal name means XYZ and only XYZ,” where “XYZ” means “name on [usually one and only one of: birth certificate/social security card/driver’s license/name change order]”). Then, we survey the “legal” status of names in various legal domains, highlighting that legal consensus tends to be that there is no one “correct legal name” for individuals (if anything, people often have many “legal” names). We then frame the wrongheaded notion that a person has a single clearly defined “legal name” as a harmful, collective delusion. So how do we rid ourselves of this delusion? We present a series of ready-to-cite conclusions about the current state of the law and introduce a normative framework for how institutions and individuals ought to choose between people’s various legal names when referring to them. Specifically, we introduce what we call the ‘Preference Norm’, according to we should defer to the legal name someone prefers absent some existent superseding legal reason not to. We argue that violating this norm in many cases constitutes a gross violation of someone’s dignity. We conclude by proposing a series of concrete legal suggestions which are meant capture the spirit of the Preference Norm.

Download the article from SSRN at the link.

Kelly-Ann Couzens on The Police Surgeon in Victorian Edinburgh: A Talk on May 21, 2021@ThomGiddens

From Jennifer Aston, University of Northumbria, an announcement of a very interesting talk:
On 21^st May at 11am the Law and Humanities RIG is hosting a talk by Dr Kelly-Ann Couzens discussing the historical role of the police surgeon. The abstract is attached. Kelly’s work is fascinating and she always tells a good story so even if historical research is not your bag it is worth coming along to learn more about the history of this little appreciated official. Kelly’s talk is entitled:
 
‘The office is not a very popular one, and its duties are often disgusting’:
The Police Surgeon in Victorian Edinburgh
 
 
Dr Kelly-Ann Couzens is an Australian-born scholar, specialising in British legal and medical history. Most recently, Kelly has been working as a Postdoctoral Research Fellow in the School of Law at the University in Edinburgh. In 2019 she graduated with a PhD in history from the University of Western Australia and is currently writing her first book - The Victorian Police Surgeon: A History of Crime and Forensic Medicine - for Palgrave.
 
The talk will be hosted on Blackboard Collaborate. Here is the link.
 
https://eu.bbcollab.com/guest/0d2d60c529174da39052bdf46a9069b9
 Here is the abstract of Dr. Couzens' talk.
‘The office is not a very popular one, and its duties are often disgusting’:
The Police Surgeon in Victorian Edinburgh
 
*Dr Kelly-Ann Couzens, Adjunct Research Fellow, Department of History, University of Western Australia
 

Read her essay, "The Police Surgeon, Medico-Legal Networks and Criminal Investigation in Victorian Scotland," in Crime and the Construction of Forensic Objectivity from 1850 (Alison Adam, ed. Springer, 2020), at 125-159.

Despite the ever-growing body of scholarship chronicling the history of forensic medicine within Anglo-American justice systems, the role of the police surgeon – as expert witness – remains largely neglected by historians. This is particularly surprising, given the diverse duties this doctor was tasked with during the Victorian era. For as well as being required to attend to the proper health and fitness of local police forces, the surgeon of police was often the first medical practitioner to make contact with victims and perpetrators in the aftermath of a violent crime. Working alongside local officials and law enforcement and empowered to inspect and certify cases of suspicious injury, sexual assault, death and insanity, the police surgeon held a unique position within the complex system of Scottish criminal justice. Nowhere is this better seen, than in the forensic career of surgeon, Sir Henry Duncan Littlejohn. For over five decades, Littlejohn laboured at the coalface of Victorian forensic medicine, whilst employed as Edinburgh city’s surgeon of police. From his appointment to the role in 1854, to the close of his forensic career in 1908, Littlejohn testified as an expert witness in hundreds of cases within Scotland’s inferior and higher courts. While the close of the Victorian era would see him emerge as a giant of the Scottish medical profession, Littlejohn’s path to recognition and success had been arduous. The bloody, corporeal, and taxing nature of forensic work left the police surgeon poorly regarded by his medical brethren. Moreover, as an employee of the city council who was intimately associated with the reputation and practices of the Edinburgh police, the conduct of the police surgeon was not exempt from public scrutiny. Yet as an intelligent, ambitious, and canny practitioner, Littlejohn was able to use this unpopular office to his professional advantage. Through this public-facing position, and regular involvement in diverse forensic matters, Littlejohn established a robust and distinctive footing in the civic, legal, and medical hierarchies of nineteenth and twentieth-century Edinburgh.

H/T 

Hadley on Whitmill v. Warner Bros. and the Visibility of Cultural Appropriation Claims in Copyright Law @DrMarie_IP @uonlawschool

Marie Hadley, Newcastle Law School, University of Newcastle (Australia), has published Whitmill v Warner Bros. and the Visibility of Cultural Appropriation Claims in Copyright Law at 42 European Intellectual Property Review 223-229 (2020). Here is the abstract.

The Māori-inspired tattoo at the heart of the copyright infringement case of Whitmill v Warner Bros. has attracted allegations of cultural appropriation in Aotearoa/New Zealand. An examination of the Māori cultural appropriation claim that surrounds the tattoo and its invisibility throughout the Whitmill v Warner Bros. legal proceedings, shows how the legal system does not receive Indigenous cultural claims over the cultural imagery and arts styles that inspires outsider imagery as an intellectual property interest.

Download the article from SSRN at the link.

Stern on Biographical Evidence and the Law of Presumptions @ArsScripta @StanfordLawHist @J19Americanists @HedgehogsFoxes @ProjectMUSE

Simon Stern, University of Toronto, has published Biographical Evidence and the Law of Presumptions, at 9 J19: The Journal of Nineteenth-Century Americanists 83-89 (2021). Here is the abstract.

The rules and history of evidence law can provide useful resources for understanding the role of biographical evidence in literary criticism. During the nineteenth century, as evidence law became increasingly formalized, presumptions acquired a newfound significance as a device for allocating the burden of proof in evidentiary disputes. Presumptions generally operate by stipulating a legal conclusion that flows from a certain factual premise, such that the conclusion remains dispositive unless the opposing party offers witnesses or documents that contradict it. The result is a burden-shifting procedure that licenses a generic inference, assumed to flow from a factual premise but capable of being rebutted by specific details to the contrary. Literary critics often use biographical evidence in a similar fashion: in the absence of concrete information about a writer's beliefs or experiences, critics use some kinds of generic biographical information to draw inferences about the attitudes that someone with a certain background would have held. When more specific biographical details become available, they are used to confirm, refine, or contradict those inferences. Unlike lawyers, however, literary critics tend to use biographical information of all kinds—both generic and specific—to raise new inferences rather than to resolve questions definitively.

Bandes on Feeling and Thinking Like a Lawyer: Cognition, Emotion, and the Practice and Progress of Law @BandesSusan @DePaulLaw @FordhamLRev

Susan A. Bandes, DePaul University College of Law, is publishing Feeling and Thinking Like a Lawyer: Cognition, Emotion, and the Practice and Progress of Law in volume 89 of the Fordham Law Review (2021). Here is the abstract.

Generations of lawyers have been taught that thinking like a lawyer requires putting emotion aside. They are warned, for example, that anger will blind them to the facts as they really are. Yet cognitive science rejects the notion that emotion and reason are autonomous, warring spheres. Recently there has been increasing recognition of the harmful consequences of the narrow conception of “thinking like a lawyer” to lawyers’ well-being, but these consequences are generally portrayed as a necessary trade-off between the well-being of lawyers and the preservation of analytical rigor. This Essay will argue that the harm the narrow conception of “thinking like a lawyer” poses to lawyers’ well-being is not simply an ancillary issue or an unfortunate but necessary collateral consequence of engaging in rigorous, logical thinking. A conception of law that attempts to cordon off emotion is poorly suited to the complexities of legal practice and is inconsistent with modern knowledge about how legal, ethical, and moral reasoning—and indeed, legal change and reform—actually occur. This Essay will focus in particular on the emotion of anger and the consequences of attempting to banish it from the realm of legal reasoning.

Download the article from SSRN at the link.

Pollard on Some Oddities of the Law on Age: So You Thought You Reached 21 on Your 21st Birthday? @WilberforceCh

David Pollard, Wilberforce Chambers, has published Some Oddities of the Law on Age: So You Thought You Reached Age 21 on Your 21st Birthday? at 34 Trust Law International 21 (2020). Here is the abstract.

It can be very important to work out for legal purposes precisely how old someone is - what age have they reached? This paper looks at oddities in the law in England and Wales, contrasting the old common law position before the Family Law Reform Act 1969 took effect. This article looks at the history and some of the remaining nooks and crannies in this area, including:

 

● If a person is born on 29 February in a leap year, when is their birthday?

 

● What happens if a person is in a different time zone on his or her birthday? Do they reach the relevant age earlier (or later) than they would in the UK?

 

A story involving:

 

● a death in the first world war;

 

● theft of false teeth;

 

● a rear admiral serving his commutation notice a day before his birthday;

 

● The Pirates of Penzance;

 

● soldiers in Hong Kong; and

 

● a widow arguing that she had reached age 55 when her husband died (on the day before her birthday) because she was born early in the morning in the Philippines.

Download the article from SSRN at the link.

Means on Solving the "King Lear Problem" @UofSCLaw

Benajmin Means, University of South Carolina School of Law, is publishing Solving the 'King Lear Problem' in volume 12 of the U.C. Irvine L. Rev. Here is the abstract.

In Shakespeare’s play, King Lear, an aging ruler relinquished control to two of his three daughters. The succession failed miserably, destroying his family and destabilizing his kingdom. King Lear shows why few family businesses survive beyond three generations. Understanding Lear’s failure is crucial to avoiding Lear’s fate, whether the family business in question is a monarchy, a media empire, or a hardware store. The conventional wisdom is that Lear gave away his kingdom too soon and left himself vulnerable to predatory heirs. This has been referred to as the “King Lear Problem.” The conventional wisdom is wrong. Lear’s succession plan failed because he waited too long. Like Lear, those who control family businesses are often reluctant to step aside. For example, until he was well into his 90s, Sumner Redstone declared this his succession plan was to never die. The predictable consequence was litigation that engulfed the companies he controlled, including CBS and Viacom. Yet, despite its importance, the question of family-business succession has been neglected by legal scholars. Using King Lear as a framing device, this Article identifies obstacles to succession and shows how legislative initiatives, judicial intervention, and private ordering can facilitate the timely transfer of ownership and control across generations.

Download the article from SSRN at the link.

Mocsary and Person on A Brief History of Public Carry in Wyoming @uw_law

George A. Mocsary and Debora Person, both of the University of Wyoming College of Law, are publishing A Brief History of Public Carry in Wyoming in volume 21 of the Wyoming Law Review. Here is the abstract.

The history of gun carry laws in Wyoming parallels that of many other Western states, impacted the presence of great changes in national and regional events. From the time that Wyoming first became a territory in 1868, the treaties with the Cheyenne, the Crow, the Sioux, and the Arapahoe peoples distributing lands in Wyoming were in force. The Wind River Reservation was created for the Shoshones. The Homestead Act was recently passed, and the Pony Express, the Oregon Trail, the Overland Trail, the Mormon Trail, and the Bozeman Road crossed the plains and mountains of the territory. The Civil War had just ended and recovery was painful. The U.S. government had granted land to the Union Pacific for the transcontinental railroad, bringing with the project an itinerant population of railroad workers, many of whom were immigrants of minority status. Raids and skirmishes between settlers, migrants, and frustrated Indian Nations were increasing, and federal military outposts were built. The Territory of Wyoming encompassed an expansive geographical area, but the population was sparse. Vast prairies surrounded homes and towns, and the arm of justice was often far away. For the few short years that a portion of Wyoming existed as part of the Dakota Territory, the seat of government in Yankton, Dakota Territory, was 500 miles from Cheyenne, with limited access to the courts. Parts of Wyoming were lawless and dangerous, at times exceedingly so. At a time when guns were carried openly upon a person for business or for protection, carrying a concealed weapon came to be viewed with distrust. One Wyoming newspaper editor went so far as to infer intent to harm just by the act of arming oneself. “We take the point that the very act of arming oneself as a result of a quarrel or in anticipation of trouble constitutes malice and premeditation in a strict sense; that in view of the law prohibiting the carrying of concealed weapons, any person who has a grievance against another and arms himself is deserving of no sympathy when, as a result of his misdeeds, he is brought before the bar of justice.” In the 150 years since the creation of the territorial government, the State’s stance on gun carrying has undergone many adjustments. It shows that peaceable open firearm carriage has almost always been allowed everywhere, and always allowed somewhere, in Wyoming. Concealed carry, on the other hand, has a mixed history. It came to be held in disdain, and highly regulated, in the early part of Wyoming’s history. But it became the accepted and default mode of public carry in recent years. Wyoming today has some of the most liberal gun laws in the country. This essay surveys the development of these laws from positive, public-discourse, and comparative perspectives to the extent possible given the relative paucity of sources on the topic.

Download the article from SSRN at the link.

Ely on "All Temperate and Civilized Governments:" A Brief History of Just Compensation in the Nineteenth Century @BrighamKanner @vanderbiltlaw

James W. Ely, Vanderbilt University Law School, is publishing “All Temperate and Civilized Governments;” a Brief History of Just Compensation in the Nineteenth Century in volume 10 of the Brigham-Kanner Property Rights Journal. Here is the abstract.

This article explores the origins of the “just compensation” principle, the rationale behind the compensation requirement, and attempts to define the scope of “just compensation” throughout the Nineteenth Century. It traces the sources of the compensation requirement when property is acquired by eminent domain to English common law and the influence of natural law theorists. Courts in the United States early took the position that payment of compensation was a fundamental principle of universal application even if written constitutions contained no express compensation provision. The Fifth Amendment takings clause was seen as simply an affirmation of this overarching principle. The compensation norm was understood as a matter of “natural equity,” so that the burden of public projects was shared by the community as a whole rather than fall upon a single individual. Moreover, from the outset courts insisted that the determination of the amount of just compensation was a question for the judiciary, and that the legislature could not fix the measure of compensation. The article examines at length the evolution of “just compensation” during the Nineteenth Century. Where an entire parcel was taken, courts gravitated to the fair market value as the appropriate standard for compensation. Yet ascertaining fair market value posed difficulties, and many commentators charged that this standard did not provide adequate compensation to owners. Partial takings presented even more complicated problems. Lawmakers commonly mandated that in such cases the alleged benefits resulting from a project to the remaining land should be offset against the loss suffered by the owner, thus reducing any monetary compensation. Critics argued that supposed advantages were often illusory or inequitably benefited the entire community not the particular owner. The article probes the constitutional issues, as well as the confusion and uncertainty, arising from the offset of benefits. It also considers and questions the contested subsidy thesis, which holds that the offset of benefits amounted to a subsidy to transportation companies, especially railroads, by minimizing the expense of acquiring rights of way by eminent domain. Noting a gap between judicial rhetoric extolling the importance of private property and the frequent practice of awarding inadequate compensation when property was taken by eminent domain, the article concludes by suggesting that undercompensation was a legacy of the Nineteenth Century. In this connection, it looks at some recent cases in which courts stopped short of awarding full compensation.

Download the article from SSRN at the link.

Webinar: Conversation with Professor James Boyd White

 

“Mosaic: an Approach to Law and Literature” – A conversation piece with James BOYD WHITE - With the support of the ISLL (Italian Society of Law and Literature) and the ATFD (Portuguese Association for Legal Theory, Philosophy of Law and Social Philosophy, the Portugueses IVR Section), the UCILeR, the University of Coimbra Institute for Legal research  (within its research area "Law and Time") will welcome, on the next May 12th, at 3pm (4pm in Italia), Professor James Boyd White (L. Hart Wright Collegiate Professor Emeritus of Law, University of Michigan Law School). 

The webinar will integrate the lecture "Mosaic", a sequence of brief comments (which will bring some "surprises"!) and a dialogue with the audience. It is a unique opportunity to hear the author of Keep Law Alive considering (with an unmistakable perspective) some of the great challenges that the contemporary world imposes on Law.. 

Free participation upon registration at: https://www.fd.uc.pt/inscricao/ (or https://docs.google.com/forms/d/e/1FAIpQLSdYDSi7e5H6a3C9flvMMstDgBlojC7Y7I0DKRXEpOyDOSC_PA/viewform).

After registration the link will be sent.

Call For Nominations: 2021 Penny Pether Prize for Scholarship in Law, Literature [,] and the Humanities

From Dr. Timothy Peters, ARC DECRA Research Fellow, Senior Lecturer in Law, School of Law and Society, USC:

I am delighted to call for nominations for the 2021 Penny Pether Prize for Scholarship in Law, Literature and the Humanities.

 

The prize will be awarded to the author or authors whose book has, in the judgement of the Committee, made the most significant contribution to the field of Australasian law, literature and humanities since the award of the last prize. An additional ECR Prize may also be awarded if the Prize Committee deems that this is warranted.

 

The Prize Rules and Nomination form are attached and more details about the Prize, along with past winners, are available here: https://www.lawlithum.org/penny-pether-prize/

 

Nominations are due to the chair of the Prize Committee, Professor Marco Wan by the 1^st of July 2019 at mwan@hku.hk

[N.B.: There is presumably an error in the submission date, because the prize rules for this year indicate a submission date of July 1st, 2021. --Ed.]

Newly Published: ART LAW AND CULTURAL HERITAGE LAW / DIREITO DA ARTE E DO PATRIMÔNIO CULTURAL (v. 17, 2020) @franca_marcilio

Newly published: ART LAW AND CULTURAL HERITAGE LAW / DIREITO DA ARTE E DO PATRIMÔNIO CULTURAL, volume 17, no. 3 (2020). Edited by Marcilio Toscano Franca Filho and Ardyllis Alves Soares. 

Here is a link to the website, which has links to PDFs of the articles.

McKenna on Designing for International Law: The Architecture of International Legal Organisations 1922-1952 @miriambmac

Miriam Bak McKenna, Lund University Faculty of Law, has published Designing for International Law: The Architecture of International Legal Organisations 1922 - 1952 at 34 Leiden Journal of International Law 1 (2021). Here is the abstract.

Situating itself in current debates over the international legal archive, this article delves into the material and conceptual implications of architecture for international law. To do so I trace the architectural developments of international law’s organizational and administrative spaces during the early to mid twentieth century. These architectural endeavors unfolded in three main stages: the years 1922–1926, during which the International Labor Organization (ILO) building, the first building exclusively designed for an international organization was constructed; the years 1927–1937 which saw the great polemic between modernist and classical architects over the building of the Palace of Nations; and the years 1947–1952, with the triumph of modernism, represented by the UN Headquarters in New York. These events provide an illuminating allegorical insight into the physical manifestation, modes of self-expression, and transformation of international law during this era, particularly the relationship between international law and the function and role of international organizations.

Download the article from SSRN at the link.

Ramsey on Women's Votes, Women's Voices, and the Limits of Criminal Justice Reform, 1911-1950 @ColoLaw

Carolyn B. Ramsey, University of Colorado Law School, is publishing Women's Votes, Women's Voices, and the Limits of Criminal Justice Reform, 1911-1950 in volume 92 of the University of Colorado Law Review. Here is the abstract.

On the eve of the Nineteenth Amendment’s ratification in 1920, Carrie Chapman Catt—the leader of the National American Woman Suffrage Association (NAWSA)—envisioned the establishment of a nonpartisan body dedicated to female voters’ political education that would help newly enfranchised women develop a voice in public affairs. To this end, Catt guided the conversion of NAWSA into a post-suffrage association called the National League of Women Voters (LWV). While Catt’s goal of training women for full citizenship was abstract, many state and local Leagues took a more practical approach, learning from the experience of tackling specific social problems. This Article, written for a symposium commemorating the centennial of the Nineteenth Amendment, assesses the role of LWV leaders in California in reforming three aspects of the criminal justice system that affected women: courts, police, and prisons. It draws from the archival papers of the San Francisco Center of the LWV, as well as other primary sources, to reveal the contradictions and shortcomings, as well as the achievements, of newly enfranchised California women who sought to carry on the suffragists’ legacy. During the four decades between 1911 and the middle of the twentieth century, the San Francisco Center advocated gender-specific approaches to crime with varying degrees of success or failure. Initially prompted to investigate the ills of lower-level criminal courts (known as “police courts”) by a local judge’s mishandling of rape cases, San Francisco clubwomen launched a full-fledged effort to establish a Women’s Court. Part I of this Article discusses the origins, goals, and limitations of the Women’s Court and the San Francisco Center’s subsequent campaign for the appointment of a female prosecutor and municipal judge. Although influenced by Progressive ideas about the use of specialized courts and trained experts, League members mostly confined their efforts to morals offenses that recalled the Victorian social purity movement, rather than seeking remedies for domestic violence and other aspects of crime that affected women. Part II explores another project supported by the San Francisco Center that exemplified how Progressive tools might perpetuate essentially Victorian values. During the first half of the twentieth century, San Francisco clubwomen urged the SFPD, with little success, to hire a substantial number of female police officers. The San Francisco Center emphasized prostitution and other vices of “fallen” women as areas of law enforcement for which female officers supposedly possessed special skills. Limited both by the SFPD’s reluctance to hire women and female reformers’ myopic interest in preventing prostitution, the San Francisco Center doggedly pursued an agenda that entrenched gender segregation on the police force without bringing real remedies to systemic sexism or the victimization of women. Part III describes the most revolutionary criminal justice reform project that members of the California LWV spearheaded in the first half of the twentieth century: the creation of a “prison without walls” for female offenders. Based on the notion that women who committed crimes, even felonies, might be taught law-abiding ways through education, hard work, and humane treatment, the Tehachapi prison experiment demonstrated that newly enfranchised female voters had gained traction in public life. However, while the creation and operation of the women’s prison gave substance to a rehabilitative ideal more forward-looking than many LWV proposals for moral enforcement, the male-dominated legal system created substantial impediments to the success of the Tehachapi facility. The Conclusion assesses the contributions of the LWV and its state and local branches in California. Like their sisters in the national organization, members of the San Francisco Center worked tirelessly on social welfare issues and civil service reform, opening unprecedented paths to jobs and community involvement for women. In contrast, their criminal justice reform efforts were hampered, not only by the differing interests and continued power of male jurists, police chiefs, and prison officials, but also by the clubwomen’s obsession with prostitution. The affluent white activists of the San Francisco Center and the state-level LWV failed to advocate structural changes that might have liberated women, especially poorer and racial-minority women, from gendered violence. Yet despite the San Francisco Center’s limited success in obtaining justice for victims of sexual exploitation, integrating the San Francisco Police Department, and rehabilitating female offenders, its activities helped put women into public office and provide concrete opportunities for political engagement in the first few decades after suffrage was achieved.

Download the article from SSRN at the link. 

Cogan on A History of International Law in the Vernacular @IntLawReporter

Jacob Katz Cogan, University of Cincinnati College of Law, is publishing A History of International Law in the Vernacular in the Journal of the History of International Law. Here is the abstract.

Histories of international law have typically focused on the origins of legal rules and doctrines, the decisions of courts and other formal tribunals, the views of professors and legal theorists and diplomats, and the evolution of the legal profession. That is, international legal histories have centered on the concerns of lawyers and states and have reflected a positivist vision of international lawmaking. We need a history of international law that focuses more on international law in action — the invocation, elaboration, and contestation of rules in and through their everyday application, not just by states, high-level state actors, legal theorists, and state-organized domestic and international institutions, but also by individuals, low-level officials, private groups, and nongovernmental actors and in places outside of the usual fora where “international law” is said to be found. We need a history of international law in the vernacular.

Download the article from SSRN at the link.

Newly Published: Mixed-Race Superheroes (Rutgers, 2021), Edited by Sika A. Dagbovie-Mullins and Eric L. Berlatsky @RutgersUPress @booksnerrd

New from Rutgers University Press: Mixed-Race Superheroes (Sika A. Dagbovie-Mullins and Eric L. Berlatsky, eds., 2021). Here from the publisher's website is a description of the book's contents.

American culture has long represented mixed-race identity in paradoxical terms. On the one hand, it has been associated with weakness, abnormality, impurity, transgression, shame, and various pathologies; however, it can also connote genetic superiority, exceptional beauty, and special potentiality. This ambivalence has found its way into superhero media, which runs the gamut from Ant-Man and the Wasp’s tragic mulatta villain Ghost to the cinematic depiction of Aquaman as a heroic “half-breed.” The essays in this collection contend with the multitude of ways that racial mixedness has been presented in superhero comics, films, television, and literature. They explore how superhero media positions mixed-race characters within a genre that has historically privileged racial purity and propagated images of white supremacy. The book considers such iconic heroes as Superman, Spider-Man, and The Hulk, alongside such lesser-studied characters as Valkyrie, Dr. Fate, and Steven Universe. Examining both literal and symbolic representations of racial mixing, this study interrogates how we might challenge and rewrite stereotypical narratives about mixed-race identity, both in superhero media and beyond.

 

Davis on Legal Ethics, Legal Dualism, and Fidelity to Law @usflaw

Joshua P. Davis, University of San Francisco School of Law, has published Legal Ethics, Legal Dualism, and Fidelity to Law. Here is the abstract.

This Article argues that there is an important relationship between the nature of law and legal ethics. A crucial claim in support of this thesis is that the nature of law varies with the purpose for which it is being interpreted. In particular, the Article contends that natural law provides the best account of the nature of law when an interpreter seeks moral guidance from the law, and legal positivism provides the best account when an interpreter seeks instead to describe the law or to predict how others will interpret it. This philosophical position it labels “legal dualism.” Legal dualism has a significant implication for legal ethics: to the extent the law serves as a source of moral guidance for interpreters, they must act as natural lawyers. The Article tests legal dualism and its corollary for legal ethics against Bradley Wendel’s justly lauded book, LAWYERS AND FIDELITY TO LAW. Wendel pairs legal positivism and the moral legitimacy of law, commitments that legal dualism suggests are incompatible. The Article argues that, while Wendel makes many important contributions, his argument is not fully successful to the extent it conflicts with legal dualism. It concludes that he—and others—should acknowledge and address the need for ethical attorneys to act as natural lawyers. That means lawyers sometimes must make moral judgments in saying what the law is.

Download the article from SSRN at the link.

Brunschwig on Visual Law and Legal Design: Questions and Tentative Answers

Colette R. Brunschwig, University of Zurich, Department of Law, Centre for Legal History, Legal Visualization Unit, has published Visual Law and Legal Design: Questions and Tentative Answers in Proceedings of the 24th International Legal Informatics Symposium IRIS 2021 179-230 (Erich Schweighofer, Franz Kummer, Ahti Saarenpää, Stefan Eder, and Philip Hanke, Bern: Editions Weblaw, 2021). Here is the abstract.

This paper rests on three premises: First, ongoing digitalization is unleashing visualization (still or moving images) and audio visualization (videos, audiovisual animations, etc.). This massive technological development is also initiating multi sensorization (humanoid robots, virtual realities, etc). Second, visual law and legal design are still largely unknown as fi elds of scholarly inquiry to many legal and non-legal actors. My paper therefore uses “visual law” and “legal design” as working terms to delineate these fi elds. Third, I take an etymological approach to the word “responsible” featuring in the conference title of the International Symposion on Legal Informatics 2020 as it implies a quality that is required of digitalization. The English adjective “responsible” comes from the Latin verb respondēre, whose meanings include answering (responding) and corresponding to something. Based on these premises, this paper explores four key questions: How does current legal research respond to visualization? What are visual law and legal design? How are visual law and legal design similar or diff erent? What should visual lawyers or legal designers do to act responsibly in the face of ongoing digitalization? Tackling these questions yields new insights for the debate on legal visualization. The answers given in this paper reveal how various basic legal disciplines and law-and areas gravitate around this topic. The answers also demonstrate that the insights of the basic legal disciplines and law-and areas are or should be interconnected. Taking such steps will promote not only visualization itself but also interdisciplinary legal research on this important topic.

Download the essay from SSRN at the link.

Chin on The Blueprint for Dred Scott: United States v. Dow and the Multi-Racial Jurisprudence of White Supremacy @UCDavisLaw

Gabriel Jackson Chin, University of California, Davis, School of Law, has published The Blueprint for Dred Scott: United States v. Dow and the Multi-Racial Jurisprudence of White Supremacy. Here is the abstract.

Chief Justice Taney’s 1857 opinion in Dred Scott v. Sandford is justly infamous for its holdings that African Americans could never be citizens, that Congress was powerless to prohibit slavery in the territories, and for its proclamation that persons of African ancestry “had no rights which the white man was bound to respect.” For all of the interest in and attention to Dred Scott, however, no scholar has previously analyzed United States v. Dow, an 1840 decision of Chief Justice Taney in a Circuit Court trial which is apparently the first federal decision to articulate a broad theoretical basis for White supremacy. Dow identified Whites as the “master” race, and it explained that only those of European origin were either welcomed or allowed to be members of the political community in the colonies. Non-Whites such as members of Dow’s race, Taney explained, could be reduced to slavery, and therefore their rights continued to be subject to absolute legislative discretion. Dow, however, was not a person of African descent, he was Malay, from the Philippines. Chief Justice Taney’s employment in Dow of legal reasoning which he would later apply in Dred Scott suggests that Dred Scott should be regarded as pertinent to all people of color, not only African Americans. This understanding of Dred Scott helps explain the revival of Taney’s reputation during the Jim Crow era after Reconstruction. Courts declined to invalidate restrictions with respect to a broad range of civil rights on citizens and immigrants of African, Indian, Asian, and Mexican ancestry to which Whites were not subject. Indeed, Whites could not be subject to them, unless it is conceivable that under the U.S. Constitution, the law could provide, for example, that all races would be ineligible to testify or vote because of their race. Accordingly, even after Reconstruction, just as Dred Scott and Dow contemplated, the White race remained the master race, in the sense that they were the exclusive holder of truly inalienable rights.

Download the article from SSRN at the link.

Bernstein on How Technologies of Language Meet Ideologies of Law @UBSchoolofLaw @anyabernstein

Anya Bernstein, University at Buffalo Law School, is publishing Technologies of Language Meet Ideologies of Law (Symposium: Law, Language, and Technology) in the 2020 volume of the Michigan State Law Review (forthcoming in 2021). Here is the abstract.

A new technology of interpretation is taking the legal world by storm. Legal corpus linguistics, an approach generally unknown in the field until a few years ago, has suddenly become a focus for articles, conferences, legal briefs, and even judicial opinions. Taking advantage of evolving computational approaches and data collection abilities, legal corpus linguistics searches big data sets of language use to help interpret legal texts. This Article puts legal corpus linguistics in the context of other meaning-making technologies and suggests an approach for analyzing any technology of language in the law. One of my aims is to caution against technological exceptionalism—a view that computerized, automated, or big-data approaches are somehow special, perhaps more trustworthy, less subjective, and most likely to succeed. Rather, I argue that we should ask the same questions, and make the same demands, of any method of interpretation. As science and technology studies (STS) and related scholarship has demonstrated, technology is not neutral or passive. It is a cause in its own right. That makes it particularly important to examine the underlying assumptions that help construct, and are perpetuated through, a given technology. To elucidate these points, I draw on theorists who have influenced our understandings of the production of knowledge and technological development, showing how he key contributions by Bruno Latour, Ian Hacking, and Michel Foucault should inform our evaluation of legal language technologies. I then introduce legal corpus linguistics, describing its origins in academic linguistics and the somewhat different way it has been practiced in legal interpretation. Having laid this groundwork, I ask how we should evaluate this emerging technology in legal interpretation. I argue that legal corpus linguistics fails to coherently relate its methods, questions, aims, and claims. Moreover, it inscribes a peculiar view of legal meaning: a narrow, asocial, and abstracted notion of things that are in fact broad, social, and practice-based. The illusion of simplicity that legal corpus linguistics propagates undermines our evolving understanding of the real complexities of law and leaves out participants and contexts that are crucial to the production of law as a social force. To probe its implications further, I then put legal corpus linguistics in the context of some other ways of giving laws meaning. I choose two that sit at the extremes of simplicity and complexity: dictionary definitions, on the one hand, and administrative rulemaking procedures, on the other. These may seem unrelated or incommensurable, but in fact they all are technologies of legal interpretation that should be considered in comparison to one another. Comparison also helps illuminate those aspects of legal corpus linguistics that fit it snugly into particular legal ideologies, but blind it to the realities of how law functions in society.

Download the article from SSRN at the link.

Zipporah B. Wiseman Prize for Scholarship on Law, Literature, and Justice: Writing Competition The Bernard and Audre Rapoport Center for Human Rights and Justice at the University of Texas School of Law @UTexasLaw

 From the Bernard and Audre Rapoport Center for Human Rights and Justice:

The Bernard and Audre Rapoport Center for Human Rights and Justice at the University of Texas School of Law is proud to administer the Zipporah B. Wiseman Prize for Scholarship on Law, Literature, and Justice. Awarded to the winners of an annual international and multidisciplinary writing competition, the prize is made possible by donations from the friends, family, and colleagues of the late Zipporah Batshaw Wiseman, in honor of her important work at the intersection of law and literature.

TOPIC: We welcome papers from any discipline that engage both legal and literary methods or texts. For these purposes, literary texts include written and other narrative forms, such as film. Papers should use an interdisciplinary lens to explore issues of justice, broadly understood. The papers may work from any of a variety of perspectives: legal and literary, of course, but also philosophical, historical, sociological, political, economic, or cultural.

PRIZE: The winning paper will receive $1,250 and will be published in the Working Paper Series of the Bernard and Audre Rapoport Center for Human Rights and Justice. A second-place prize of $750 might also be awarded, with the paper considered for publication in the Working Paper Series.

ELIGIBILITY: The prize is open to students currently enrolled in graduate or professional programs as well as to those who have graduated from such programs in or after May 2020. Papers must consist of original work, primarily undertaken as a student, that has not been published or undergone professional editing at the time of submission. Authors must have rights to the content and be willing to publish the paper in the Rapoport Center’s Working Paper Series shortly after the winner has been announced. If papers are later published in a journal or other edited collection, they may be replaced in the Working Paper Series with a citation to that publication.

JUDGMENT CRITERIA: An interdisciplinary and international panel of scholars will judge the papers anonymously. Relevant judgment factors include the strength and logic of the thesis, depth of the analysis, originality and importance of intervention, thoroughness and soundness of the research, and quality of writing (clarity and organization).

FORMAT: Papers must be between 8,000 and 12,000 words, including notes and appendices, and written in English. Text should be double-spaced, with 12-point font and 1-inch margins. Citational style should be disciplinarily appropriate. Via email, please submit, in three separate documents, the paper (without any identifying information), abstract (100 to 250 words), and full contact details (including university, degree, and anticipated/actual graduate date). Include “Zipporah Wiseman Prize” in the subject line of the email. All submissions must be submitted in .doc or .docx format.

DEADLINE: June 15, 2021, 11:59 p.m. (CT).  Submissions should be sent via email to humanrights@law.utexas.edu.

Gerber on The Intellectual History of European Laws about Religious Toleration Prior to the Planting of English America

Scott D. Gerbert, Ohio Northern Univeristy College of Law, is publishing The Intellectual History of European Laws about Religious Toleration Prior to the Planting of English America in Glossae: The European Journal of Legal History (2021). Here is the abstract.

Law matters, and laws about religion matter a lot. Both the European laws about religious toleration prior to the planting of English America and the laws about religious toleration enacted by the settlers who founded English American colonies for religious reasons employed law primarily as a means of social control. European monarchs wanted power, and they utilized laws about religion to help them acquire it and maintain it. The leaders of the English American colonies planted for religious reasons used law to effectuate their designs: to foster religious toleration in those colonies committed to that animating principle (Maryland, Rhode Island, and Pennsylvania); to try to create an ideal Bible commonwealth for the colonies dedicated to the idea that religion must be practiced as God had ordained (Connecticut and Massachusetts). In short, the settlers of English America were impacted by the European laws about religious toleration that preceded their voyages to the New World. The planters of religiously tolerant colonies tried to learn from what they regarded as Europe’s mistakes, while those who strove for religious purity rejected the prevailing European notion that divine sovereignty must occupy a decidedly secondary place to the sovereignty of the state.

Download the article from SSRN at the link.

Safner on Honor Among Thieves: How 19th Century American Pirate Publishers Simulated Copyright Protection @ryansafner

Ryan Safner, Hood College, has published Honor Among Thieves: How 19th Century American Pirate Publishers Simulated Copyright Protection. Here is the abstract.

From 1790 to 1891, the United States prevented foreign authors from obtaining domestic copyright protection, implicitly subsidizing a domestic reprinting industry. With foreign works a “free” and unprotected resource, American publishers created a system of voluntary norms, known as “trade courtesy” to create and enforce psuedo- property rights in uncopyrighted foreign works, simulating the effects of legal copyright protection. This paper analyzes this system using the Bloomington School’s Institutional Analysis and Design (IAD) framework to under- stand its effectiveness, and pitfalls, in managing the commons of unprotected foreign works in 19th Century America.

Download the document from SSRN at the link.