Call For Papers Extended To September 6, 2021: LAW AND LOVE: IN AND BEYOND PANDEMIC TIMES

LAW AND LOVE:

IN AND BEYOND PANDEMIC TIMES

A VIRTUAL AND IN-PERSON CONFERENCE OF THE  

LAW, LITERATURE AND HUMANITIES ASSOCIATION OF AUSTRALASIA 

MONDAY 29 NOVEMBER – THURSDAY 2 DECEMBER 2021 

UNIVERSITY OF THE SUNSHINE COAST, SIPPY DOWNS 

 

CALL FOR PAPERS DUE DATE EXTENDED TO 6 SEPTEMBER 2021

 

 

Dear Friends,

 

We hope this email finds you well in these difficult times.

 

We are absolutely delighted with the response to the call for papers to date – but we don’t want anybody to miss out on being able to submit a proposal for the conference. As such, we are extending the call for papers for the conference until the 6^th September 2021. We would also like to confirm that, subject to Covid-restrictions at the time, the conference will have both online and in-person attendance options for all the sessions – and there will be flexibility in changing attendance options if required.

 

For HDR/postgraduate students, the Association has a number of bursaries on offer – the closing date for these is still 31^st of August 2021.  Applications need to be submitted by email to kbirrell@unimelb.edu.au. Further information is available on the Association website here: https://www.lawlithum.org/postgraduate-bursaries/

 

We have a fantastic line-up of keynotes and plenaries in the works including:

• Keynote speaker: Associate Professor Ioannis Ziogas (Durham), author of Law and love in Ovid: Courting in the Age of Augustus
• Plenary Panel: “Loving and Not Loving Law” by Dr Maria Giannacopoulos (Flinders) and Dr Claire Loughnan (Melbourne)
• With more to come!

 

Registration for the conference will open shortly, but if you have not yet put in a paper or panel proposal – please do! Attached is the extended call for papers, and more information can be found at our conference website: www.usc.edu.au/lawandlove/

 

We look forward to seeing you (virtually or in-person) later this year.

 

Best wishes,

 

Dr Timothy Peters

 

On behalf of The Law and Love Conference Organising Committee

Jordan Belor, Vincent Goding, Dale Mitchell, Ashley Pearson, Timothy Peters, Justine Poon and Dyann Ross

School of Law and Society

University of the Sunshine Coast

Sippy Downs, Queensland, Australia

 

Alicea on Liberalism and Disagreement in American Constitutional Theory

J. Joel Alicea, Catholic University of America, Columbus School of Law, is publishing Liberalism and Disagreement in American Constitutional Theory in volume 107 of the Virginia Law Review (2021). Here is the abstract.

For forty years, American constitutional theory has been viewed as a clash between originalists and non-originalists. This depiction misunderstands and oversimplifies the nature of the debate within constitutional theory. Although originalism and non-originalism describe important differences between families of constitutional methodologies, the foundations of the disagreement among theorists are the justifications that they offer for those methodologies, not the methodologies themselves. Once the debate is refocused around the justifications that theorists offer for their constitutional methodologies, it becomes clear that the debate within constitutional theory is ultimately a debate about liberalism as a political theory. Specifically, it is a debate about two propositions that are central to the liberal tradition: individualism and rationalism. Viewed in this way, constitutional theorists often thought to be opposed to each other are, in fact, allies in the debate over liberalism, even if they disagree about whether their shared theoretical premises imply an originalist or non-originalist methodology. Conversely, theorists often seen as allies profoundly disagree about the premises of their constitutional theories because they disagree about liberalism. Reorienting American constitutional theory to focus on the disagreement over liberalism will help us identify which constitutional theory is best and better understand the outcomes in important constitutional cases.

Download the article from SSRN at the link.

Newly Published: Pascal Ricard, Law and Philosophy of Language @routledgebooks

 Newly published:

Pascal Richard, Law and Philosophy of Language: Ordinariness of Law (Routledge, 2021).

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

Academic legal production, when it focuses on the study of law, generally grasps this concept on the basis of a reference to positive law and its practice. This book differs clearly from these analyses and integrates the legal approach into the philosophy of normative language, philosophical realism and pragmatism. The aim is not only to place the examination of law in the immanence of its practice, but also to take note of the fact that legal enunciation must be taken seriously. In order to arrive at this analysis, it is necessary to go beyond traditional perspectives and to base reflection on an investigation of the conditions for enunciating law in our democracies. This analysis thus offers a renewal of the ethics inherent in the action of jurists and an original reflection on the role of certain legal tools such as concepts, categories, or "provisions". In this sense, the work nourishes its originality not only by the transversality of its approach, but also by the will to situate legal thought in concrete forms of its implementation. The book will be essential reading for academics working in the areas of legal theory, legal philosophy and constitutional theory.

 

Some Legal History Publications: New From Cambridge @CambridgeUP

 New or forthcoming from Cambridge Historical Studies in American Law and Society:

Robert J. Steinfeld, "To Save the People From Themselves": The Emergence of American Judicial Review and the Transformation of Constitutions (due in October 2021).

Lee B. Wilson, Bonds of Empire: The English Origins of Slave Law in South Carolina and British Plantation America, 1660-1783 (July 2021).

Holbo on Modernism's Others: Literary Realisms in an Age of Incomplete Emancipation @asuEnglish

Christine Holbo, Arizona State University, has pubished Modernism’s Others: Literary Realisms in an Age of Incomplete Emancipation in American Literary History.

More here from the publisher's website.

Call For Abstracts: Better Call Saul and Philosophy: I Think, Therefore I Scam

 

Call for Abstracts!

Better Call Saul and Philosophy: I think, Therefore I Scam

Edited by Joshua Heter and Brett Coppenger

Abstracts are sought for a collection of essays on any philosophical topic related to the hit television series Better Call Saul to be published by Carus Books (this is the same editorial team that was long with Open Court Publishing). Potential contributors may want to examine previously published volumes such a Westworld & Philosophy as well as The Man in High Castle & Philosophy.

Abstracts and eventual essays should be written for an educated but non-specialized audience (with an approximate length of 10 to 12 pages).

Contributor Guidelines:

Email abstracts (and any questions) to: bettercallsaulandphilosophy@gmail.com

1. Abstracts should be between 100 - 500 words.

2. Potential contributors must include a resume/CV for each author/coauthor.

3. Initial submissions should be made by e-mail as either a Word doc. or a PDF.

4. Deadlines:

Abstracts due by August 15, 2021

First drafts due by November 15, 2021

Final drafts due by January 15, 2022

(Early submissions are encouraged and welcomed!)

The ACD (Arthur Conan Doyle) Society Is In Session! @AcdSociety

 The ACD Society has launched! The Society is devoted to studying and enjoying Sir Arthur Conan Doyle's works.

The Society awards prizes for the best scholarly writing about Doyle, so if you have nominations, please submit them! See the Society's website for instructions. (Full disclosure: your L&H Blog editor is a member of the Scholarly Writing Committee).

There are lots of other activities the Society promotes, including awards for fiction and poetry and for visual arts involving ACD, and a newsletter you can receive if you join. Membership is inexpensive ($10 a year). 

Follow the ACD Society on Twitter at @AcdSociety.

Gold on Copyright Fair Use from 1841 to 2021: What It Means For Copyright Protections Versus Free Speech Exceptions

Sara Gold, Eastman IP, has published Copyright Fair Use from 1841 to 2021: What It Means For Copyright Protections Versus Free Speech Exceptions in The Federal Lawyer, May/June 2021. Here is the abstract.

This article, published in the May/June 2021 edition of The Federal Lawyer, examines the jurisprudential and legislative history of copyright fair use in relation to its current status in American copyright law as an "affirmative defense." Fair use as an affirmative defense is relatively ingrained into modern U.S. copyright law, even though the Copyright Act does not use this label. Because fair use is treated as an affirmative defense, defendants wholly bear the burdens of production and persuasion on all four fair-use factors articulated in Section 107 of the Copyright Act. However, this full allocation to the defendant may reflect an imbalance between the rights of copyright holders and the rights of the public. These considerations are especially evident when it comes to summary judgment, which already places the onus on the defendant to eliminate issues of fact, and when it comes to the market harm factor, which requires the defendant to prove the absence of harm to markets that not it, but the plaintiff, owns. The Copyright Act's lack of specificity as to the procedural posture of fair use could support a currently untapped judicial flexibility when it comes to approaching fair use from this standpoint. As this article concludes, a procedural approach that takes into account the parties' relative access to evidence and information could bring copyright protection and copyright exception into better balance, furthering the goal of copyright law to foster creativity.

Download the article from SSRN at the link.

Kenny on "Love Mounts to the Throne with Law": Citizenship in Northern Ireland and Seamus Heaney's Antigone @dkennytcd @TCDLawSchool

David Kenny, Trinity College Dublin School of Law, is publishing ‘Love Mounts to the Throne with Law’: Citizenship in Northern Ireland and Seamus Heaney’s Antigone in Law and Humanities (2022). Here is the abstract.

In this paper, I examine disputes about citizenship in Northern Ireland though the lens of poet Seamus Heaney’s 2004 version of Antigone, The Burial at Thebes. Citizenship and identity in Northern Ireland—if people are Irish or British—has been a central issue of the conflict there. The 1998 peace agreement promised to allow people to identify however they wished, and not be forced to adopt an identity they rejected. But recent controversies, including Brexit and a major legal challenge, have shown that the legal concept of citizenship has not been able to fulfil this promise. Sophocles’ Antigone presents a great clash between the authority of the State and deep personal/morality commitments, and the tragedy that result. Heaney’s Antigone casts light on the fundamental clash at the centre of citizenship, and points us toward a flexible, contextual multi-level citizenship as a solution to law’s rigid conception of what a citizen must be.

Download the article from SSRN at the link.

Newly Published: Hedi Viterbo, Problematizing Law, Rights, and Childhood in Israel/Palestine (Cambridge University Press, 2021) @HediViterbo

Hedi Viterbo, Queen Mary University of London, has published Problematizing Law, Rights, and Childhood in Israel/Palestine (Cambridge University Press, 2021). Here from the publisher's website is a description of the book's contents.

In this book, Hedi Viterbo radically challenges our picture of law, human rights, and childhood, both in and beyond the Israel/Palestine context. He reveals how Israel, rather than disregarding international law and children’s rights, has used them to hone and legitimize its violence against Palestinians. He exposes the human rights community’s complicity in this situation, due to its problematic assumptions about childhood, its uncritical embrace of international law, and its recurring emulation of Israel’s security discourse. He examines how, and to what effect, both the state and its critics manufacture, shape, and weaponize the categories “child” and “adult.” Bridging disciplinary divides, Viterbo analyzes hundreds of previously unexamined sources, many of which are not publicly available. Bold, sophisticated, and informative, Problematizing Law, Rights, and Childhood in Israel/Palestine provides unique insights into the ever-tightening relationship between law, children’s rights, and state violence, at both the local and global levels.

 

Rostron and Levit on Information For Submitting Articles To Law Reviews & Journals @UMKCLaw @levitn

Allen Rostron and Nancy Levit, both of the University of Missouri, Kansas City, School of Law, have published Information for Submitting Articles to Law Reviews & Journals. Here is the abstract. 

 This document contains information about submitting articles to law reviews and journals, including the methods for submitting an article, any special formatting requirements, how to contact them to request an expedited review, and how to contact them to withdraw an article from consideration. It covers 196 law reviews. 

 Download the article from SSRN at the link.

Call For Papers: Law and Love, 2021 Law, Literature, and Humanities Association of Australasia Conference

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

A VIRTUAL AND IN-PERSON CONFERENCE OF THE  

LAW, LITERATURE AND HUMANITIES ASSOCIATION OF AUSTRALASIA 

MONDAY 29 NOVEMBER – THURSDAY 2 DECEMBER 2021 

UNIVERSITY OF THE SUNSHINE COAST, SIPPY DOWNS 

Dear Friends,

 

It is our immense pleasure to invite you to the 2021 Law, Literature and Humanities Association of Australasia Conference - Law and Love (in and beyond Pandemic Times): Images and Narratives, Histories and Cultures. 

 

Available online and in-person, we hope that this event continues the tradition of critical scholarship and community that has characterised our interdisciplinary family. Please find attached the Call for Papers, and submit your abstracts via our Conference website where you can find more information about the event.

 

We are so excited to welcome you to the Sunshine Coast (virtually or in-person) later this year!

 

Best wishes,

 

The Law and Love Conference Organising Committee

School of Law and Society

University of the Sunshine Coast

Sippy Downs, Queensland, Australia

Link to the conference website.

Hadjigeorgiou on Beyond Formalism: Reviving the Legacy of Sir Henry Maine for CIL

Andreas Hadjigeorgiou, University of Groningen; University of Antwerp; Frederick University Cyprus, is publishing Beyond Formalism: Reviving the Legacy of Sir Henry Maine for CIL: The Theory, Practice and Interpretation of Customary International Law in The Theory and Philosophy of Customary International Law and Its Interpretation (P. Merkouris, J. Kammerhofer, and N. Arajavi, eds., Cambridge University Press, 2021, Forthcoming). Here is the abstract.

Not all ontological concerns which surround the concept of (customary) international law (CIL) have disappeared, rather they have shifted. Whereas the existence of a genuine international legal system is taken as a ‘given’, questions still remain about its genesis and the position of CIL within it. Some for example, still question whether we can truly speak of customary international law, while others recast the concept of CIL through a formalist perspective. Accordingly, formalism, in its moderate form, treats formal sources, documents and/or proclamations as ‘better’ tools for both a) the preservation of existing rules of CIL, and b) the ‘creation’ of new legal rules. At its more extreme, formalism purports the view that c) IL (or even CIL) finds its genesis only in formal sources, documents, or proclamations. While some formalisation is undeniably helpful and even necessary, we should be more critical of this formalist paradigm. In this way, the chapter seeks to respond to these positions through a revival of the legacy of Sir Henry Maine and the evolutionary conception of law that he laid out the first foundation for. By operationalizing this conceptualization, a new vision spawns for CIL: a vision beyond mere formalism.

Download the essay from SSRN at the link.

New Publication: Paul S. Hirsch, Pulp Empire: The Secret History of Comic Book Imperialism (University of Chicago Press, 2021) @CrimeReads @UChicagoPress

 From the wonderful website CrimeReads, an excerpt from Paul S. Hirsch's new book Pulp Empire: The Secret History of Comic Book Imperialism (University of Chicago Press, 2021). It reads in part:

The American comic book is inseparable from foreign policy, the great twentieth-century battles between capitalism and totalitarianism, and the political goals of the world’s preeminent military and cultural power. The history of the American comic book is a story of visual culture, commerce, race, and policy. These four fields are analogous to the four colors used to print comic books: cyan, magenta, yellow, and black. They lie atop one another, smearing, blending, and bleeding to create a complete image. To separate them is to disassemble a coherent whole and to shatter a picture that in its entirety shows us how culture and diplomacy were entangled during the mid-twentieth century.

 

Litman, Murray, and Shaw on A Podcast of One's Own @LeahLitman @ProfMMurray @kateashaw1

Leah M. Litman, University of Michigan School of Law, Melissa Murray, New York School of Law, and Katherine Shaw, Cardozo Law School, have published A Podcast of One's Own at 28 Mich. J. Gender & L. 51 (2021). Here is the abstract.

In this short Essay, we discuss the lack of racial and gender diversity on and around the Supreme Court. As we note, the ranks of the Court’s Justices and its clerks historically have been dominated by white men. But this homogeneity is not limited to the Court’s members or its clerks. As we explain, much of the Court’s broader ecosystem suffers from this same lack of diversity. The advocates who argue before the Court are primarily white men; the experts cited in the Court’s opinions, as well as the experts on whom Court commentators rely in interpreting those opinions, are often white men; and the commentators who translate the Court’s work for the public are also largely white men. We suggest this lack of diversity has consequences both for the Court’s work and for the public’s understanding of the Court. We also identify some of the factors that contribute to the lack of diversity in the Court’s ecosystem, including unduly narrow conceptions of expertise and a rigid insistence on particular notions of neutrality. We also note and discuss our own modest efforts to disrupt these dynamics with Strict Scrutiny, our podcast about the Supreme Court and the legal culture that surrounds it. To be sure, a podcast, by itself, will not dismantle the institutional factors that we have identified in this Essay. Nevertheless, we maintain that our efforts to use the podcast as a platform for surfacing these institutional dynamics, while simultaneously cultivating a more diverse cadre of Supreme Court experts and commentators, is a step in the right direction.

Download the essay at the link.

Ojo and Ekhator on Precolonial Legal System in Africa: An Assessment of Indigenous Laws of Benin Before 1897 @Goser_ovbiedo

Idahosa Osagie Ojo, Benson Idahosa University, and Egahosa O. Ekhator, Derby Law School, have published Pre-Colonial Legal System in Africa: An Assessment of Indigenous Laws of Benin Kingdom Before 1897 at 5 Umewaen: Journal of Benin and Edo Studies 38-73 (2020).

There were salient novelties in the legal system of the Benin Kingdom and other areas in pre-colonial Africa that promoted justice, peace, and order among people and communities. Special provisions such as collective responsibility in legal personality, the law of primogeniture, the fusion of laws and religion in theory and practice, and the recognition of societal status and political position in legal proceedings amongst other legal concepts were incorporated into the body of laws in Benin. Previous intellectual efforts center on the political, economic, and social aspects of history, largely neglecting these legal dynamics and other vital areas of the kingdom’s organization. Hence, this study analyzes indigenous legal concepts in the Benin Kingdom using several varieties of primary and secondary sources. It contends that Benin, like other African societies, developed practical and useful legal concepts that helped in the consolidation of peace and harmony throughout its length and breadth, and that these indigenous Benin legal concepts were in force till 1897.

Download the article from SSRN at the link.

Banović on John Austin's Analytical Jurisprudence: The Empirical-Rationalist Legal Positivism

Damir Banović, University of Sarajevo Faculty of Law, is publishing About John Austin’s Analytical Jurisprudence: The Empirical-Rationalist Legal Positivism in the International and Comparative Law Review (2021). Here is the abstract.

This article deals with analytical jurisprudence topics presented in John Austin’s work, his predecessors, and its influence on the contemporary theory of law. The article analyses his analytical method, understanding of what the method implies, and its application in understanding law as a social phenomenon. Not only does the article analyse the law phenomenon, but it also presents his views on similar phenomena in law, such as international and constitutional law, the phenomenon of sovereignty and a sovereign, and the principle of general utility as one of the moral principles. His theory of law was one of the most significant theoretical approaches in England of the 19th century, and also constituted the baseline for new conceptions and the basis of critical analyses of later positive law theories. Moreover, his work provides a solid ground for explanations of individual branches of law, especially criminal law. Finally, the article also presents a critical analysis of his approach, useful and important findings, and the perspectives for further development of the theory of law, especially in the domain of his analytical, empirically oriented and descriptive method.

Download the article from SSRN at the link.

Call For Papers: Art/Law Network, Summer Seminar, HOMEing, June, July, August 2021 @ArtLawNetwork

 

The Art / Law Network is holding a Summer Seminar Series, HOMEing, in June, July and August. There are two themes

• Migrants in Art
• Art, Law and the Border

It has a call for papers/submissions open for art works and papers on the two themes: https://artlawnetwork.org/event/aln-homeing-summer-series-projects-and-call-for-submissions-14-june-2021/.

Call For Applications: Institute for Interdisciplinary Legal Studies, Visiting Fellows 2022 @UniLuzern

The Institute for Interdisciplinary Legal Studies has posted this Call For Applications for Visiting Fellows for 2022.

Institute for Interdisciplinary Legal Studies – lucernaiuris

Call for Applications: Visiting Fellows 2022

 

The Institute for Interdisciplinary Legal Studies at the University of Lucerne invites applications for our Visiting Fellows Programme 2022.

 

The fellowship programme is set up to support junior scholars (PhD students and postdocs) who wish to undertake a short-term research stay at the institute. The scheme is open to all working broadly on interdisciplinary topics at the intersections between law, the humanities and the social sciences. Focusing on critical and theoretical approaches, the institute aims to bring together a diverse group of scholars who read and think widely across fields, contexts and disciplines.

 

We particularly welcome applications from those working on projects that connect with our own core interests. Currently, these include:

 

• Legal Futures and Futurity
• Law and New Technologies
• Law and the Life Sciences
• Theories of Justice and Histories of the Judiciary
• Law, Art, Politics

 

The deadline for submissions is Thursday 30 September 2021.

 

Further details on eligibility, application process and assessment criteria are available here.

 

Please direct any questions to Dr. Steven Howe (steven.howe@unilu.ch).

Koh on Univitalism and American Law @BCLAW

Steven Arrigg Koh, Boston College Law School, has published Univitalism and American Law. Here is the abstract.

Curiously, the English language lacks a word for “the belief that human beings only live once.” This Essay, as an initial matter, coins this term: univitalism (from the Latin, "uni-" and "vita"). Univitalism is a long-held belief in the United States, prevalent amongst those with both sacred and secular views. It is so common, in fact, that is assumed by American Jews, Christians, Muslims, atheists, and agnostics alike — and thus integral to the reasoning of U.S. legal and political decisionmakers. By contrast, many Eastern societies and a significant minority of Americans subscribe to a “multivitalist” worldview, wherein individuals are reborn. This Essay historically surveys how univitalism has shaped American law and policy; it also considers how, in turn, American law reifies univitalism. In particular, this Essay will show how univitalism is integral to contemporary U.S. substantive criminal law, sentencing, and broader theories of punishment. A contrasting comparative view — adopted in certain international criminal tribunals and foreign criminal legal jurisdictions — will underscore this analysis. This Essay will argue that univitalism places particular emphasis on retribution and may exacerbate punitiveness in American criminal law.

The full text is not available from SSRN.

Stern on Proximate Cause in Legal Historiography @ArsScripta @theory_history

Simon Stern, University of Toronto Faculty of Law, has published Proximate Cause in Legal Historiography at 60 History & Theory 363 (2021). Here is the abstract.

The variety of legal history published in general-interest law journals tends to differ from the variety published in history journals. This study compares the two varieties by examining footnote references in five general-interest law journals and footnote references in two journals of legal history. In the law journals, cases and statutes accounted for the single largest group of footnotes (approximately 35%), followed by references to other law journal articles (nearly 25%). In the legal history journals, these two categories accounted for less than 20% of all references; primary and secondary historical materials predominated in the footnotes. To be sure, legal decisions and law journal articles can also be historical sources: rather than being used as evidence of what the law is, they might be studied for what they reveal about legal reasoning or rhetoric in an earlier age. However, in most legal historical research that attends primarily to cases and statutes, these materials figure as evidence of the state of the law at that time. When the analysis relies on legal sources to trace the development of a certain doctrine and treats them as sufficient to account for that development, the result is the distinctive style of research that I seek to contrast against approaches that cast the net of historical inquiry more widely. To account for these different approaches, I suggest that law professors rely on a notion of proximate causation as a historiographic method. According to this approach, legal developments are proximately caused by other developments in the legal sphere, and other social and cultural developments play more attenuated roles, such that their influence is less significant. By proposing this explanation, I hope to draw more attention to assumptions about causation in legal historiography and to question their persuasive force.

Biswas on American Feminism in Formation: Margaret Fuller's Women in the Nineteenth Century and Louisa May Alcott's Little Women @IITHyderabad

Shreosi Biswas, IIT Hyderabad, has published American Feminism in Formation: Margaret Fuller's Women in the Nineteenth Century and Louisa May Alcott's Little Women. Here is the abstract.

In the last one hundred years or so, the theory and praxis of feminism have almost touched the zenith although, even in the late nineteenth and early twentieth century, feminism was only a neglected theoretical perspective, due perhaps to the fact that it liberally as well as radically challenged the mainstream patriarchal conventions. Debates and discussions were there, stray demands for rights of women were also raised here and there, a limited number of women in different countries of the world might also have risen to very high positions of power and authority, but till the last decade of the eighteenth century there was no consistent and dedicated writing to provide support to the women’s causes. My intention in this paper is to examine and evaluate the contribution of Margaret Fuller Ossoli and Louisa May Alcott in giving the necessary philosophical-theoretical support and literary justification to feminism during its formative period in America through a close study of Women in the Nineteenth Century (1845) and Little Women (1868). An exploration of the philosophical-literary back-ups which ignited the flourishing of feminism in America, even before the term ‘feminism’ was coined, is both interesting and insightful.

Download the article from SSRN at the link.

Manners on Executive Power and the Rule of Law in the Marshall Court: A Re-reading of Little v. Barreme and Murray v. Schooner Charming Betsy @Jane_C_Manners

Jane Manners, Columbia Law School, is publishing Executive Power and the Rule of Law in the Marshall Court: A Re-Reading of Little v. Barreme and Murray v. Schooner Charming Betsy in volume 89 of the Fordham Law Review (2021). Here is the abstract.

This Essay uses two 1804 opinions by Chief Justice John Marshall to explicate a world in which understandings of executive power and the rule of law were very different from those that predominate today. Scholars have misread Little v. Barreme and Murray v. Schooner Charming Betsy, this Essay argues, because they apply modern assumptions about the balance of power between Congress and the executive that do not fit the Marshall Court’s constitutional vision. Contemporary interpretations read Little for the propositions that the president’s inherent wartime power may be limited by statute and that early American jurists rejected officers’ “good faith” defenses to liability for tortious acts. But the opinion in fact reflects the Marshall Court’s view that, in an undeclared war, the president could not act at all unless authorized by Congress and that under no circumstances could the president give an officer a right to act where Congress had not. Charming Betsy, meanwhile, is known today for the “Charming Betsy canon”: Marshall’s assertion that wherever possible, courts ought to interpret the laws of Congress to accord with international law. In its historical context, however, the case illustrates Marshall’s view of the law of nations not as an external constraint on sovereignty—a common understanding of international law’s role today—but as an aspect of the rule of law critical to preserving the proper allocation of powers between Congress and the president. Indeed, read together, these cases show Marshall using the law of nations to reinforce a tenet central to the separation of powers in the new republic: that only Congress could alter the nation’s war footing. Through Little and Charming Betsy, the Marshall Court sought to foreclose Congress’s efforts to abdicate its responsibility to authorize acts of war and thus to underscore the constitutional balance that placed the war-making and lawmaking power not with the courts, not with the executive, but with Congress.

Download the essay from SSRN at the link.

Call For Papers: Political Imagination and Utopian Energies in Central and Eastern Europe, Faculty of Law, Charles University, September 16-17, 2021

 From Jan Géryk Faculty of Law, Charles Unversity

I would like to invite you to the 13th CEE Forum of Young Legal, Political, and Social Theorists which will be held on September 16-17 in Prague. The topic is "Political Imagination and Utopian Energies in Central and Eastern Europe". You can find the full Call for Papers here:

 

The deadline for sending your abstracts is on June 6, but since we use this mailing list as a channel quite late it is enough to write us that you are interested and the topic of your paper until June 6 and then have time for sending a full abstract until June 12.

 

Our contact email is ceef2021prague@email.cz

 

Best wishes, Jan Géryk Faculty of Law, Charles Unversity

Marinotti and Lubin on The Law of the Upload @JoaoMarinotti @AsafLubin

João Marinotti, Center for Law, Society and Culture, Indiana University Maurer School of Law; Information Society Project, Yale Law School; Center for Intellectual Property Research, Indiana University Maurer School of Law; The City University of New York - The Graduate Center, City University of New York, and Asaf Lubin, Indiana University Maurer School of Law; Berkman Klein Center for Internet & Society; Yale University - Information Society Project; Federmann Cybersecurity Center, Hebrew University of Jerusalem Faculty of Law have published The Law of the Upload as Indiana Legal Studies Research Paper No. 451. Here is the abstract.

In April 2020, Amazon released a new comedy series called “Upload.” The show extrapolates a future in which human consciousness is successfully simulated in silico. In this world, individuals can pay to be “uploaded” into a series of competing digital afterlives. When uploaded, human consciousness is converted into data and executable code, which can be edited, reset, throttled, or even deleted depending on each upload’s membership plan and payment status. The show breaks the boundaries between reality and virtual reality, consciousness and artificial intelligence, and even life and afterlife, entangling various legal questions in novel ways. By addressing three of these legal issues, we hope to highlight how science fiction may help launch a more nuanced conversation about what is artificial in artificial intelligence, what is virtual in virtual reality, and what is digital in digital rights. We argue that becoming early adopters of a new reconceptualized language around “us” and “them”, the “self” and the “other,” can perhaps future proof our society from the technological perils that await us.

Download the paper from SSRN at the link.

Tillman on What Oath (if Any) Jacob Henry Took in 1809 @SethBTillman

Seth Barrett Tillman, National University of Ireland, Maynooth (NUI Maynooth), Faculty of Law, has published What Oath (if Any) Did Jacob Henry Take in 1809?: The Problem of Conceptual Confusion Between State Religious Tests and Religious Test Oaths. Here is the abstract.

The Jacob Henry literature has been primarily concerned with two questions. First, why did the members of the North Carolina House of Commons on December 6, 1809 vote against Mills’s motion to vacate Henry’s seat? That is, what motivated the members—in the sense of politics, partisanship, and personalities—to vote as they did? Likewise, what constitutional or other legal or policy rationales (if any) did the members put forward to explain their votes? A surprising number of very different views have been put forward. Second, what did Henry’s victory against purported religious intolerance mean to his contemporaries and later generations? This Article addresses a different set of (albeit related) questions. The focus of this Article is not on what happened on December 5 and 6, 1809 and why the members of the North Carolina House of Commons voted as they did. Instead, the focus of this Article is on what happened on November 20, 1809—in other words, what legislative oath (if any) did Jacob Henry actually take? Second, how have later historians and legal commentators described and distorted our understanding of the events of November 20, 1809? And, third, why did the December 6, 1809 debate on the motion veer so far from any substantial discussion of the actual underlying events of November 20, 1809? Admittedly, this third question cannot be answered with clarity. A PDF is available upon request.

The full text is available from SSRN at the link.

Call For Proposals: Ecocide/Speciesism: Legislating Hierarchy, Interdependence, Death (online stream)

Call for Proposals

Critical Legal Conference, University of Dundee, 2–4September 2021

ECOCIDE/SPECIESISM: LEGISLATING HIERARCHY, INTERDEPENDENCE, DEATH (online stream)

 

The once oak trunk now your coffee table; the once bouncy calf now your steak; the once mink mother now your fur coat; the anchovy tribe now your omega-3 supplement. Our lives consist of corpses. Speciesism, as a form of discrimination, manifests as violence against “inferior” non-humans. Our speciesist beliefs and institutions are currently driving ecocides around the world. Just like racism, sexism, or colonialism, speciesism renders certain lives inferior, thus suited for discrimination and subjugation. Jurisprudence is crucial to the environmental crisis: law is shaped by what we consider normal and it determines what we normalize. The norm now remains the massive killing, torture, exploitation of non-humans for the benefit of humans. The myth of independence and autonomy pervasive in Western liberal democracies has supplanted the awareness of inevitable (inter)dependence. Our ideal unity as co-guardians of our common home collides with the hierarchization of needs, rights and bodies, driven by speciesist logics. The life of some rests on the death of many; and law condones it.

 

QUESTIONS

 

What are the conscious, unconscious, subconscious factors skewing the way we ascribe worth to different forms of life? How are speciesist beliefs driving the rights–duties dialectic embedded in our laws and institutions? How can we conceptualize the aggregate and intergenerational damage, to humans and to nature, of the violence normalized against some forms of life to the benefit of others? Why has the neoliberal ethos rendered interdependence (in both life/prosperity and death/downfall) marginal to individual beliefs and to state responsibilities? What would critical earth jurisprudence look like?

 

FORMAT

 

Research papers (environmental law, animal law, criminal law, critical legal theory, green criminology, environmental ethics, ecopsychology, conservation psychology, animal thanatology, extinction studies) & creative submissions (electronic/acoustic composition, sound & video art, documentary, photography, collage, painting, drawing, poetry, flash fiction — if informed by research in the above disciplines). Creative pieces can be circulated in advance or presented during the panel (if the format permits); artists can discuss the creative process and how it relates to the stream thematic. This online stream consists of two/three panels of 90 min each (3 x 20 min presentations + 30 min discussion).

 

SUBMISSIONS

 

Please submit a 200-word proposal and 3 keywords to rimona.afana@yahoo.com. Deadline: 30 June 2021.

 

STREAM CONVENER

 

Rimona Afana, Visiting Scholar, Vulnerability Initiative, Emory University School of Law

 

Mannoni on Legislation on the Heritage Protection and Restoration of Antiquity: The Case of the Acropolis of Athens in the Nineteenth Century @CaFoscari

Chiara Mannoni, Ca' Foscari University of Venice, has published Legislation on the Heritage Protection and Restoration of Antiquity. The Case of the Acropolis of Athens in the Nineteenth Century as Max Planck Institute for Legal History and Legal Theory Research Paper Series No. 2021-08.

The analysis of the restoration carried out on the Acropolis of Athens between 1834 and 1875 offers the opportunity to evaluate the inferences of law and artistic taste on the reconstruction of one of the most famous monuments in the world. The ethical and aesthetic ambiguities of this early work are outlined through the study of Leo von Klenze’s memoranda on the refurbishment of the Acropolis temples, and the first laws on the protection of the Greek heritage issued by the Bavarian rulers in 1834 and 1837. In particular, the discussion will consider Klenze’s guidelines in relation to his conceptual inconsistencies about Romanticism and Neoclassicism, and within the implications – both juridical and aesthetic – of the edicts issued on the safeguard of antiquity in Greece. As will be argued, this early restoration not only would transform the Acropolis historical profile, but also affect the later refurbishment completed on the site in the twentieth century.

Download the article from SSRN at the link.

Bailey and White on Counterfeiting and Michigan: The Territorial and Early Statehood Years

Christopher A. Bailey and Nancy J. White, both of Central Michigan University, have published Counterfeiting and Michigan: The Territorial and Early Statehood Years at 47 Michigan Academician 71 (2021). Here is the abstract.

Counterfeiting crime was pervasive in the early years of Michigan. This paper describes and analyzes the environment of currency counterfeiting and the causes and effects of counterfeiting in Michigan in the early- and mid-nineteenth century. The laws and changes to the laws of Michigan relating to counterfeiting are also summarized. This is the first state-level historical narrative of nineteenth century counterfeiting in the United States, allowing us to investigate the economic environment and the counterfeiting and counterfeiting law outcomes of a particular state with its particular circumstances. This will give future researchers a basis for state-to-state comparisons of causes and outcomes of counterfeiting and counterfeiting law. In our conclusion, we provide a lengthy example list of future state-to-state counterfeiting comparisons that can be made.

The full text is not available from SSRN.

Peck on Standard Oil, Consolidation Coal, and the Roots of the Resource Curse in West Virginia @wuvlaw @WVlawreview

Alison Peck, West Virginia University of College of Law, is publishing Standard Oil, Consolidation Coal, and the Roots of the Resource Curse in West Virginia in the West Virginia Law Review. Here is the abstract.

Despite its natural resource wealth, West Virginia today ranks last among all states in its residents’ overall sense of well-being, a puzzle that economists call “the resource curse.” Much of West Virginia’s wealth, in the form of coal, oil, and gas, left the state in the late nineteenth and early twentieth centuries before the state could tax it. This discouraging story was not inevitable. In 1905, a Morgantown lawyer named George C. Baker led an effort to tax coal, oil, and gas leases as personal property that nearly succeeded. Baker and his allies, Governor William M.O. Dawson and Tax Commissioner Charles W. Dillon, won a high-profile court battle in 1905 against industries that had managed to defeat hot-button tax reform efforts in the legislature the year before. While powerful Standard Oil Company was resigned to comply as it focused on more threatening battles elsewhere, the coal industry resisted. Coal companies and their attorneys succeeded in diluting the new taxes nearly out of existence at the assessment stage under a theory that the West Virginia Supreme Court of Appeals would uphold in late 1906, changing course from its decision just a year earlier. Despite the efforts of Baker and his colleagues, the corporate reforms that prospered on the national level during the Progressive Era never took root in West Virginia. This history bears revisiting in the current debates over tax reform and the prospects for economic and social development of the state.

Download the article from SSRN at the link.

Bilder on Native Nations and the Convention @BCLAW @FordhamLRev

Mary Sarah Bilder, Boston College Law School, is publishing Without Doors: Native Nations and the Convention in volume 89 of the Fordham Law Review (2021). Here is the abstract.

The Constitution’s apparent textual near silence with respect to Native Nations is misleading. As this Article reveals, four representatives of Native Nations visited Philadelphia in the summer of 1787. Their visit ensured that the Constitution secured the general government’s treaty authority with Native Nations and decisively barred state claims of authority. But, the visits also threatened to disrupt Congress’s passage of the Northwest Ordinance and the vision of nationally sanctioned white settlement. In the process of successfully preventing the representatives from reaching Congress, Secretary at War Henry Knox developed the central tenets of what would become the George Washington administration’s early Indian policy: an acceptance of Native Nation sovereignty, disapproval of unauthorized white encroachment, and an attempt to discourage Native Nations from sending additional representatives. In addition to emphasizing the strong national federal government role and Native Nation sovereignty, this history provides evidence that the Framers’ generation without doors—outside the Convention—critically affected the creation of the Constitution as an instrument and a system of government. Recovering the visits of the deputies to Philadelphia in 1787 and the promises they received, including Washington’s handshake, suggests that the United States today should reaffirm the right and the importance of Native Nations sending deputies to Congress.

Download the article from SSRN at the link.

McNeil on L’émergence d’une monarchie française indépendante, 1100-1314 : le rejet de la suprématie papale Popes and Kings: The Struggle for Supremacy in Medieval Europe @OsgoodeNews

Kent McNeil, York University, Osgoode Hall Law School, is publishing L’émergence d’une monarchie française indépendante, 1100-1314 : le rejet de la suprématie papale/Popes and Kings: The Struggle for Supremacy in Medieval Europe as an Osgoode Legal Studies Research Paper. Here is the abstract.

French Abstract:La lutte entre le pape et les dirigeants séculiers d’Europe occidentale pour la suprématie politique était un thème dominant dans la période médiévale. Les rois de France et d’Angleterre en particulier ont affirmé leur autorité et leur indépendance, conduisant au développement des États-nations. Cette forme d’organisation politique a été normalisée en Europe par la Paix de Westphalie de 1648 et exportée dans le monde entier à travers le colonialisme. Cet article raconte l’histoire de la lutte pour le pouvoir entre le pape et les rois de France, dont les rois sont sortis victorieux, contribuant à la création du monde moderne. English Abstract:The struggle between the Pope and secular rulers of Western Europe for political supremacy was a dominant theme in the medieval world. The kings of France and England in particular asserted their authority and independence, leading to the development of nation states. This form of political organization was standardized in Europe in 1648 by the Peace of Westphalia and exported to the rest of the world through colonialism. This article tells the story of the power struggle between the Pope and the kings of France, from which the kings emerged victorious, contributing to the creation of the modern world. Note: Downloadable document in French.

Download the article from SSRN at the link.

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.