Ryu on How Reasons Make Law

Angelo Ryu, University of Oxford, Saint John's College, is publishing How Reasons Make Law in the Oxford Journal of Legal Studies. Here is the abstract.

According to legal anti-positivism, legal duties are just a subset of our moral duties. Not every moral duty, though, is legal. So what else is needed? This article develops a theory of how moral duties come to be law, which I call the constitutive reasons account. Among our moral reasons are legal reasons—and those reasons make moral duties into legal duties. So the law consists of moral duties which have, as one of their underlying reasons, a legal reason. Such legal reasons arise from a relationship with the body for which it is the law of. The legal reasons in America, then, are the moral reasons flowing from a relationship with the United States. These reasons include consent, democracy, association and fair play. They are law’s constitutive reasons. By looking for them, we can better explain why some moral duties form part of the law, while others do not.

Download the article from SSRN at the link.

Bonadio and Khan on Remix, Reuse, and Reggae: Creativity and Copyright in Jamaican Music @CityUniLondon

Enrico Bonadio, City University, London, City Law School, and Bryan Khan, University of the West Indies, have published Remix, Reuse and Reggae: Creativity and Copyright in Jamaican Music in Enrico Bonadio - Chen Zhu (eds.), Music Borrowing and Copyright Law (Enrico Bonadio and Chen Zhu eds., Hart Publishing 2023. Here is the abstract.

What makes the story of the rise of reggae music so fascinating are the circumstances in which the genre evolved. It seems to have been birthed by a cosmic alignment of the right social and cultural factors, rather than an anticipatable evolution of existing cultural institutions. Unlike neighbouring islands, which had hosted vibrant creole musical cultures since the nineteenth century, a formal music scene was not a major component of the Jamaican cultural landscape until the mid-twentieth century. And the contributions to global culture made by the Caribbean Island of Jamaica are remarkable given the country’s size. The country has birthed many musical genres which have made a mark on popular culture, including mento, ska, rocksteady, reggae, and dancehall, and these genres have in turn influenced a wide range of musical subcultures from American hip-hop to British drum and bass, and beyond. Against this broad history, this chapter explores the factors that facilitated the creative processes of Jamaican music scene, and its remarkable rise as global cultural force. Specifically, it provides a discussion on the history of Jamaican music, with a focus on the social and creative norms of remix and reuse. In doing so, the chapter features numerous examples of Jamaican songs.

The text of the essay is not available from SSRN.

Brooks and Gamage on The Original Meaning of the Sixteenth Amendment @FordhamLawNYC @davidsgamage

John R. Brooks, Fordham University School of Law, and David Gamage, University of Missouri School of Law, are publishing The Original Meaning of the Sixteenth Amendment in the Washington University Law Review. Here is the abstract.

The Sixteenth Amendment to the United States Constitution enshrines Congress’s “power to lay and collect taxes on incomes, from whatever source derived.” Challenges to the exercise of that power have typically turned on whether the thing being taxed is “income” or not. In the most recent example, the 2023 Supreme Court case of Moore v. United States, taxpayers have argued that the Sixteenth Amendment only authorizes taxation of realized income—this is, that gain from appreciated property can only be taxed as “income” when there has been a sale or conversion of that property. In this Article we argue—based on the original meaning of the Sixteenth Amendment—that this approach to constitutional tax questions is wrong. The focus of the Sixteenth Amendment and of the Congressional income tax power is not “income” per se, but rather “taxes on incomes, from whatever source derived.” Thus, the question should not be whether the thing being taxed satisfies some isolated definition of “income,” but rather whether that tax in question comports with the original meaning of “taxes on incomes.” This is because, as we show here, the explicit and well-understood original meaning of the Sixteenth Amendment was to overrule the Supreme Court case of Pollock v. Farmers’ Loan & Trust Co. and restore the “complete and plenary power of income taxation” as it was understood at the time. The Amendment did not create Congress’s power to tax income, a power which it had been exercising since the Civil War; rather, it merely removed the impediment Pollock had introduced. This original meaning of the Amendment was communicated clearly at that time both in Congress and in the press. Thus, to understand the power the Sixteenth Amendment authorized, we should look at the practice and experience of income taxation at that time. Our examination shows that federal (and state) income taxes explicitly included many items of “unrealized” income, such as shareholders’ shares of undistributed corporate earnings (the issue in Moore). We also show—for the first time in the modern literature—that the federal corporate income tax law at the time of the Sixteenth Amendment’s ratification incorporated elements of “mark-to-market” taxation—treating unrealized gain from the appreciation of assets as gross income for tax purposes. This historical review thus reveals that Congress’s power to tax income is broad and should not be limited by appeals to constrained definitions of “income” isolated from the historical context.

Download the article from SSRN at the link.

Ristuccia on "Dangerous to the Liberties of a Free People": Secret Societies and the Right to Assemble

Nathan Ristuccia, Institute for Free Speech, is publishing 'Dangerous to the Liberties of a Free People': Secret Societies and the Right to Assemble in volume 4 of the Journal of Free Speech Law. Here is the abstract.

Americans in the eighteenth and nineteenth centuries often feared that secret assembly threatened republican government. Oath-bound secret societies were allegedly elitist cabals that would establish an imperium in imperio oppressive to ordinary citizens. Yet despite this hostility, many early Americans also insisted that freedom of assembly included the right to gather anonymously. According to this view, laws could not prohibit or excessively burden secrecy. This article, therefore, examines the discourse around secret societies both at America’s founding and at the time the Fourteenth Amendment was ratified. It demonstrates that—although there were voices on both sides of the debate—the weight of the evidence indicates that the First Amendment’s Assembly Clause originally protected the right to assemble in secret.

Download the article from SSRN at the link.

Keay, Inwood, and Long on Institutional Change and Criminal Sentencing on the Frontier: Evidence from British Columbia's Jails, 1864-1913 @kris_inwood

Ian Keay, Queen's University, Department of Economics, Kris Inwood, University of Guelph, Department of Economics, and Blair Long, Cape Breton University have published Institutional Change and Criminal Sentencing on the Frontier: Evidence from British Columbia's Jails, 1864-1913. Here is the abstract.

In this paper we document the effect of transformative institutional change on criminal sentencing in a frontier environment. New historical evidence digitized from British Columbia’s (BC) prison admission ledgers allows us to track changes in sentencing distributions from 1864 to 1913. We find that as BC's criminal justice system moved from informal and locally independent colonial institutions, toward a set of institutions that closely resemble the system in place today, average sentences got longer and sentence dispersion fell. We isolate the increase in sentence length and decrease in sentence dispersion that can be attributed to changes in judicial decision-making by controlling for changes in the observable characteristics of the province's prison population. We also show that changes in the sentencing distribution were coincident with a reduction in judicial discretion, an increase in sentence predictability, and an expansion in the criminal justice system along the extensive margin.

Download the article from SSRN at the link.

Syed on Legal Realism and CLS from an LPE Perspective @BerkeleyLaw

Talha Syed, University of California, Berkeley, Law, has published Legal Realism and CLS from an LPE Perspective. Here is the abstract.

What is the role of law in political economy? And what is the role of political economy in law? And in both cases, when we speak of “law” and “political economy,” are we speaking of academic disciplines or social realities? This tangle of questions constitutes, I take it, the orienting research agenda of the emerging “law and political economy” movement in legal academia. Questions concerning not so much the interaction as the interrelation of law and political economy, with each of these understood simultaneously as fields of study and areas of social life. And within that agenda the legacy of two prior efforts at grappling with these questions—Legal Realism and Critical Legal Studies (CLS)—looms large. This Article seeks to take stock of that legacy, and to advance a critique of central aspects of the received traditions of Realism and CLS, for the sake of developing new foundations for the analysis of both law and political economy. The best way to understand Legal Realism and CLS, this Article contends, is along two dimensions: (1) the first concerns the critique of legal reasoning; (2) the second the role of law in society. After setting out the central Realist and CLS claims on both these fronts, I offer critiques on each, ones that seek to push further in the same direction as the Realist/Crit views but in ways that ultimately repudiate the premises underlying these views. The main lines of Realism and CLS are, I contend, hostage to formalist premises in legal theory and liberal ones in social theory. This owes to the posture of internal critique that both adopted as their dominant strategy. Yet a central claim of the present Article is that the method of critique is always already a method of construction, both in the critique of law and the critique of political economy. To think the two may be separated is perhaps the fundamental flaw in the dominant strands of Legal Realism and CLS. And so in that vein, the Article offers a set of contrasting ideas for the development of legal, political, and social theory.

Download the article from SSRN at the link.

Feigenson on Saying It With Pictures: Image and Text in Andy Warhol Foundation for the Visual Arts v. Goldsmith

Neal Feigenson, Ouinnipiac University School of Law, has published Say It With Pictures: Image and Text in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. Here is the abstract.

The majority and dissenting opinions in the Supreme Court’s recent case on fair use, Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, feature an unprecedented number of pictures: seventeen separate illustrations, almost all color photographs, and all but one embedded in the opinions instead of being relegated to an appendix. Images have appeared in SCOTUS opinions before, but never like this. This paper explores the functions and deeper significance of this outburst of visuality. In the two opinions, Justice Sotomayor’s for the majority and Justice Kagan’s dissent, the selections and sequences of the images tell very different stories of the dispute. The Justices also use their pictures to present their divergent theories of the case. No SCOTUS opinions have come close to using pictures this purposefully before, so it’s worth examining how the Justices did it here. Those pictures, of course, are surrounded by words. The pervasive picturing invites us, as no previous SCOTUS cases have, to think about the relationships between images and text in judicial opinions. Justices Sotomayor and Kagan verbally frame our viewing in contrasting ways. Not surprisingly, the words they use to refer to and describe the pictures they show underscore their opposing narratives and arguments. More than that, their words conceive of looking at pictures differently. Justice Sotomayor implies that we should regard her pictures simply as visual support for and authentication of her verbal claims. Justice Kagan, in contrast, exhorts us to really look at the pictures, a more active engagement that may make us more responsive to what pictures, perhaps especially pictures like Warhol’s, can do. Relatedly, their opinions reflect different ideas about pictorial meaning in general. For Justice Sotomayor, pictures just are (or, in this case, who what) they depict. This is characteristic of a naïve realist stance toward pictures. For Justice Kagan, pictorial meaning is a more complicated matter, emerging not only from what can be seen in the picture but also from the picture’s contexts, including expert commentary and other pictures. This matters for two reasons. First, while the Justices’ contrasting stances on pictorial meaning may follow from their opposing interpretations of the first fair use factor, the converse may also be true: They may approach fair use as they do in part because they have different ideas about pictorial meaning. Second, and more broadly, as pictures of all kinds play an ever greater role in legal proof and legal argument, getting decisions right depends on getting pictures right. What judges think pictures mean, and when it should even be part of their job to figure out what they mean, become increasingly important. Andy Warhol Foundation tells us something about this.

Download the article from SSRN at the link.

Bernick on Horrifying Jurisprudence @NIU_Law

Evan D. Bernick, Northern Illinois University College of Law, has published Horrifying Jurisprudence as a Northern Illinois University College of Law Legal Studies Research Paper. Here is the abstract.

This Essay uses the horror video game Alan Wake 2 as a jumping-off point to discuss and critique horrifying jurisprudence—accounts of law that evoke the emotion of horror. By centering on a horror writer whose storytelling shapes the real world, Alan Wake 2 invites analogies to legal interpretation. Legal interpretation often involves storytelling and produces real-life horrors. No legal philosopher captures the narrative and horrific elements of lawmaking as vividly as Robert Cover. Challenging Ronald Dworkin’s optimistic account of judges as chain-novelists who can creatively bend the arc of the law towards justice, Cover contends that judges are generally uncreative members of violence-dispensing organizations. They spend most of their time killing—physically and metaphysically, destroying bodies and entire worlds. More horrific still is the vision articulated by the most memorable character in Cormac McCarthy’s Blood Meridian, Judge Holden. The Judge embraces as inevitable the killing that Cover laments and denies a hope that Cover left open—that of messianic legal transformation from without the system. Although Alan Wake 2 isn’t about jurisprudence, it depicts transformative acts of democratic storytelling for which there are analogues in ongoing resistance to unjust legal systems. As horrific as legal systems can be, things are not so bad as Cover and McCarthy suggest. We can transform what might appear to be inescapable loops of domination into empowering spirals. We don’t have to create horrors.

Download the Essay from SSRN at the link.

Engstrom and Stone on Auto Clubs and the Lost Origins of the Access-to-Justice Crisis @StanfordLaw @YaleLJournal

Nora Freeman Engstrom and James Stone, both of Stanford Law School, are publishing Auto Clubs and the Lost Origins of the Access-to-Justice Crisis in the Yale Law Journal. Here is the abstract.

In the early 1900s, the country’s 1,100 automobile clubs did far more than provide the roadside assistance, maps, and towing services familiar to AAA members of today. Auto clubs also provided, free to their members, a wide range of legal services. Teams of auto club lawyers defended members charged with driving-related misdemeanors and even felonies. They filed suits that, mirroring contemporary impact litigation, were expressly designed to effect policy change. And they brought and defended tens of thousands of civil claims for vehicle-related harm. In the throes of the Great Depression, however, local bar associations abruptly turned on the clubs and filed scores of suits, accusing them of violating nascent legal ethics rules concerning the unauthorized practice of law (UPL). In state after state, the bar prevailed—and, within a few short years, auto clubs’ legal departments were kaput. Drawing on thousands of pages of archival material, this Article recovers the lost history of America’s automobile clubs, as well as their fateful collision with the bar. It then surveys the wreckage and shows that the collision’s impact continues to reverberate throughout the legal profession and law itself. For one, we show how the bar’s litigation campaign against auto clubs—as well as the era’s many other group legal service providers, including banks, unions, and homeowners’ associations—helped establish the so-called “inherent powers doctrine,” which cemented courts (not legislators) as the ultimate arbiters of legal practice regulation. The result was a profound power shift, with the authority to regulate legal services consequentially placed in politically insulated courts, not politically accountable legislators. More practically, the bar’s concerted campaign decimated a once-thriving system for the provision of group legal services to ordinary Americans, which, we argue, ultimately consigned millions of individuals with legal problems to face them alone, or not at all. Finally, in the rise and fall of America’s auto clubs, we find new, untapped evidence that contributes to a range of critical contemporary debates. In particular, our story uncovers fresh evidence to support the value of corporate practice, currently—but controversially—banned by Model Rule 5.4. In the bar’s relentless campaign to shutter auto clubs, not because they harmed members but, rather, because they threatened lawyers’ livelihoods, we unearth direct proof that today’s UPL bans, which continue to stymie the delivery of affordable legal services, have fundamentally rotten roots. And ultimately, we show that the present-day access-to-justice crisis—a crisis that dooms the vast majority of Americans to navigate complex legal processes without any expert assistance—isn’t a product of inattention or inertia. The crisis was, rather, constructed by the legal profession of which we are a part.

Download the article from SSRN at the link.

Literature and Laws: Online Symposium, April 13, 2024: Bournemouth University

News of an interesting online symposium:

From Julia Round, Associate Professor of English and Comics Studies, Head of the Narrative, Culture and Community Research Centre, Bournemouth University

'Literatures and Laws' Online Symposium on April 13th, 10 am to 5.15 pm. 

 

The registration link is here:

https://www.eventbrite.co.uk/e/literatures-and-laws-online-symposium-tickets-873226523037?aff=oddtdtcreator

 

The Zoom link for the event should be in the confirmation email.

 

and the programme is available here:

https://www.bournemouth.ac.uk/research/centres-institutes/narrative-culture-community-research-centre —we will keep attendees posted regarding any changes.​

Spaak on Legal Argumentation and the Nature of Law

Torben Spaak, Stockholm University, Faculty of Law, has published Legal Argumentation and the Nature of Law as Stockholm University Research Paper No. 133. Here is the abstract.

The primary task of judges is to decide cases and give reasons for their decisions, whereas the primary task of doctrinal legal scholars is to provide a thought-out picture of the law of the land, or some part thereof; and in order to perform these tasks judges interpret and apply the law, whereas legal scholars interpret the law without applying it (except in their imagination). However, thinking or theorizing about the nature of law, something legal philosophers tend to find quite interesting, is not something most judges or legal scholars engage in, or even consider interesting. The main reason this is so, I suspect, is that they think that such theorizing has no interesting implications for legal argumentation. But are they right? Could it not be that theories of law have interesting implications for legal argumentation? To answer such a general question would be easier said than done, however. In this chapter, I therefore wish to focus on a more limited question, one that is easier to handle, namely, the question of whether any of four carefully selected contemporary theories of law, namely, Michael Moore's, Joseph Raz's, Robert Alexy's, and Alf Ross's theories, have interesting implications for legal argumentation. While such a limited investigation cannot yield general results, it can tell us whether some theories of law have interesting implications for legal argumentation; and the result, whatever it may be, may suggest, though it will not prove, that the same may be true of other theories of law. Accordingly, having discussed these four theories, I argue (1) that Moore’s and Alexy’s theories of law have interesting implications for the interpretation and application of the law; (2) that Raz’s thesis has interesting implications both for the interpretation and application of the law and for legal argumentation more broadly conceived, namely, for the legitimacy of judicial decision-making; (3) that Ross’s theory, interesting though it is, lacks interesting implications for legal argumentation more broadly conceived and thus for the interpretation and application of the law, too; and (4) that claims (1)-(3) suggest, though they do not prove, that other theories of law, too, may have interesting implications for legal argumentation.

Download the article from SSRN at the link.

ICYMI: Greenfield on Original Penumbras: Constitutional Interpretation in the First Year of Congress @Kentgreenfield1 @BCLAW @ConnLRev

ICYMI: Kent Greenfield, Boston College Law School, has published Original Penumbras: Constitutional Interpretation in the First Year of Congress at 26 Connecticut Law Reivew 79 (1993).

The records of the floor debates in the House of Representatives during 1789, the first year of Congress, are among the most revered historical sources for constitutional scholars. In 1789, the House was filled with men who had been instrumental in both the fight to gain independence from Britain and in the founding of the nation. Eight members of the House, including James Madison, had been delegates to the Constitutional Convention in Philadelphia two years earlier. The First Congress was charged with putting the new Constitution into effect. Its decisions on issues ranging from the creation of the executive departments to the establishment of the judiciary amounted to, in effect, the first institutionalized constitutional decision making of the new nation. The Supreme Court has used the records of the First Congress as the basis for numerous decisions on specific constitutional questions. Constitutional scholars have also looked to the First Congress for insight into substantive constitutional issues. Unfortunately, neither the Court nor scholars have looked to the records of the First Congress to guide or to inform the contentious debate over broad questions of constitutional interpretation. Taking advantage of the recent publication of a comprehensive record of the First Congress, this Article provides a review of the major debates that turned on constitutional issues and the interpretive methodologies Members used in reaching their conclusions. In addition, this Article sets out two important insights: (1) Members of the First Congress used an extraordinarily broad range of interpretive methodology to construe the Constitution, and (2) Members did not generally consider the intent of the Philadelphia Framers to be determinative. These insights have implications for how judges and scholars interpret the Constitution today. Part II of this Article describes in detail the six major debates in the House of Representatives in 1789 that turned on questions of constitutional interpretation. Part III demonstrates more fully the implications of these findings and suggests that the records of the First Congress should be used as a guide by judges and scholars as they grapple with modem constitutional interpretation.

Download the article from SSRN at the link.

Syed on Morty's Two Testaments @BerkeleyLaw

Talha Syed, University of California, Berkeley, Law, has published Morty's Two Testaments. Here is the abstract.

Almost a half century after it was first launched, Morton Horwitz’s diptych on The Transformation of American Law remains a colossus on the landscape of American legal historiography. The reason lies not with any universal assent the books commanded, either then or now. Indeed, upon its publication, Book 1 was the target of more vociferous attacks than any work of American legal history since Charles Beard and today is often taken to have been decisively “refuted.” Book 2, meanwhile, although more respectfully received, has also had less of an impact, so muffled as to be muted. No, the reason for the Mt. Rushmore status of the two volumes lies in the virtuoso manner in which Horwitz combined in a single person two talents rarely brought together: the historian’s eye for deep context and the telling detail, and the theorist’s eye for large, even sweeping, themes. Yet three puzzles persist about the two volumes: First, has Book 1 really been refuted? Two, why has Book 2’s impact been so much more muted? Finally, can the two testaments be reconciled or must one choose between the Old and the New? The stakes of these questions are not limited to the reception and interpretation of Transformations. Rather, they go to some of the largest substantive and methodological issues in American legal history today: (1) the relation of legal doctrine to socioeconomic developments; (2) the relation of legal theory to social ideology; and (3) the relation of each to the other. The present Essay offers a revisionary account of Transformations that seeks to answer the three interpretive puzzles in a way shedding new light on the three substantive issues. It argues, first, that in contrast to commonly received wisdom, Book 1 was in fact less an exercise in Marxian than Beardian analysis, albeit one strongly inflected by Polanyi. So reconceived, its fundamental substantive and methodological lessons—regarding the relation of legal doctrine to socioeconomic transformations—still stand up quite well today, despite the dual onslaught of internalist legal scholars and externalists from law-and-economics. Second, and again in contrast to prevailing wisdom, Book 2 is in fact more, not less, Marxian than its predecessor, although here too with a Polanyian inflection. And so reconceived, its central substantive and methodological lessons—regarding the relation of legal thought to social ideology—now subject to the dual onslaught of critical legal scholars and those from law-and-society, also hold up well. Finally, not only can the central lessons of each book be integrated with the other, but such a synthesis is precisely what is needed to rejuvenate a critical legal historiography that, in the mode of law and political economy, seeks simultaneously to investigate law’s institutional with its ideological dimensions.

The article is not available for download from SSRN.

Levine on Law and Redemption: Expounding and Expanding Robert Cover's Nomos and Narrative @TouroLawCenter

Samuel J. Levine, Touro University Law Center, has published Law and Redemption: Expounding and Expanding Robert Cover’s Nomos and Narrative at 34 Yale J. L. & Human. 253 (2023). Here is the abstract.

The article explores two interrelated themes that distinguish much of Robert Cover’s scholarship: Cover’s reliance on Jewish sources and his efforts to redeem American law and constitutionalism. These themes figure most famously, and in some ways most notably, in Cover’s groundbreaking Nomos and Narrative, published in 1983 and widely considered among the most significant law review articles ever written. Though less well-known, Cover’s unfinished and posthumously published book chapter, Bringing the Messiah Through the Law: A Case Study, expands upon these themes, relying more directly on Jewish law and legal history to illuminate Cover’s conceptions of legal redemption. The Article maintains that, taken together, these two pieces provide complementary views of Cover’s approach, demonstrating, at once, both the potential and the limitations of the redemptive power of law within the American legal system. The article begins with a close reading of Nomos and Narrative, noting Cover’s disappointment with American law’s failure to implement a redemptive response to the legal and societal wrongs of slavery and racial discrimination. The article then turns to Bringing the Messiah, which extends and applies Cover’s vision of law as a bridge to an alternative future, considered through the express lens of Jewish legal history. The article further examines the redemptive and transformative power of law in the context of both legal and narrative areas of Jewish tradition, suggesting that the law must acknowledge and respond to the faults of the past to allow for repentance and reconstruction toward a redeemed future. Finally, the Article closes with the proposition that perhaps Cover’s frustration with the redemptive failure of the American legal system reflects a failure of American law and society to undertake a full accounting of collective culpability for past wrongs, leaving unfulfilled a prerequisite for reconciliation, reconstruction, and redemption.

Download the article from SSRN at the link.

Muller on The President of the Senate, the Original Public Meaning of the Twelve Amendent, and the Electoral Count Reform Act @derektmuller @NDLaw @CaseWRsrvLRev

Derek T. Muller, Notre Dame Law School, has published The President of the Senate, the Original Public Meaning of the Twelfth Amendment, and the Electoral Count Reform Act at 73 Case Western Reserve Law Review 1023 (2023). Here is the abstract.

When Congress convenes under the Twelfth Amendment and the votes of presidential electors are counted, there are three different responsibilities to consider. First, who presides over the joint session where counting takes place, and what is the role of that presiding officer? Second, who counts the electoral votes? Third, who resolves disputes about those electoral votes? This Essay answers those questions. First, the presiding officer in the joint session is the President of the Senate, and she acts as any other presiding officer of a legislature. She initiates actions pursuant to precedent, parliamentary procedures, and the wishes of the chamber. And that means the chamber—here, the joint session—can constrain the President of the Senate as presiding officer. Congress did exactly that when it chose to further constrain the discretion of the President of the Senate in the Electoral Count Reform Act of 2022. Second, Congress counts electoral votes. The evidence in the text and structure of the Constitution and congressional practice before the ratification of the Twelfth Amendment supports this interpretation. Third, the power to resolve disputes runs with the power to count. And that means Congress also has the power to resolve disputes about presidential electors. Separating these responsibilities is crucial because it can be too easy to conflate some of these activities, which in turn elides over the distinctions in responsibilities. When the presiding officer acts, she does so not to count votes, but to preside over the joint session and help it proceed according to the rules and precedents set by Congress. The actions she takes may resemble the substantive act of counting. But close scrutiny of the record reflects that the President of the Senate does not count, and has never counted, votes. That is because the power to count resides in Congress, where the Twelfth Amendment lodges that power. This Essay begins by examining the text of Article II, specifically its Counting Clause. It argues that a change in verb voice in the clause removes the President of the Senate from the role of counting electoral votes. Part II then moves to the original public meaning of the Twelfth Amendment through an interpretation of congressional practices. Majorities of both houses of Congress in 1800 believed Congress had the substantive power to resolve disputes over electoral votes. These details give an important gloss to the Twelfth Amendment, which was ratified in 1804. Part III examines the structure of the Constitution. Crucially, the President of the Senate, not the Vice President, bears the responsibilities in the Twelfth Amendment. While these two terms are often used interchangeably, they are not interchangeable for purposes of understanding the separation of powers and the role of Congress. Part IV concludes with an examination of the newly enacted Electoral Count Reform Act. It identifies the major elements of the Act and it focuses on the Act's decision to expressly narrow the responsibilities of the President of the Senate in the joint session where Congress counts electoral votes. Congress’s decision to define the role of the presiding officer is squarely within its constitutional authority.

Download the article from SSRN at the link.

Siegel and Ziegler on Comstockery: How Government Censorship Gave Birth to the Law of Sexual and Reproductive Freedom, and May Again Threaten It @YaleLawSch @maryrziegler

Reva Siegel, Yale University Law School, and Mary Ziegler, University of California, Davis, School of Law, are publishing Comstockery: How Government Censorship Gave Birth to the Law of Sexual and Reproductive Freedom, and May Again Threaten It in the Yale Law Journal. Here is the abstract.

In the aftermath of the overturning of Roe v. Wade, the antiabortion movement has focused on a new strategy: transforming the Comstock Act, a postal obscenity statute enacted in 1873, into a de facto national ban on abortion. Claims on the Comstock Act have been asserted in the medication abortion case now before the Supreme Court and in the campaign for the Presidency. This Article offers one of the first legal histories of the Comstock Act that reaches from its enactment to its post-Dobbs reinvention, offering critical resources for evaluating claims for revived enforcement of Comstock that are now being asserted in courts and in politics. The history this Article uncovers undermines revivalists’ claims about the Comstock statute’s meaning and the democratic legitimacy of reviving its enforcement. Yet the Article’s significance ranges well beyond the revival debate, as it uncovers in conflicts over Comstock’s enforcement popular claims on democracy, liberty, and equality in which we can recognize roots of modern free speech law and the law of sexual and reproductive liberty lost to constitutional memory.

Download the article from SSRN at the link.

Tate on Magna Carta and the Definition of Fundamental Rights @JCTate1215 @TulsaLawReview @SMULawSchool

Joshua C. Tate, Southern Methodist University School of Law, is publishing Magna Carta and the Definition of Fundamental Rights in volume 59 of the Tulsa Law Review (2024). Here is the abstract.

The U.S. Supreme Court has long relied on the language of Magna Carta in interpreting the U.S. Constitution, particularly the Fifth and Fourteenth Amendments. In recent years, the Court has concluded that the absence of certain rights from Magna Carta—and the common law tradition more generally—means that those rights ought not to be considered fundamental today. Some Justices of the Court have also crafted a highly restrictive definition of “liberty” on the basis of Magna Carta and the common law texts interpreting it. This Article argues that the Court has viewed Magna Carta too narrowly, and that “liberty” has a broader meaning in the common law tradition. Reviewing the privileges and liberties of medieval cities that were reaffirmed in Magna Carta, the Article concludes that rights to travel, to conduct one’s business without interference, and to avoid the jurisdiction of oppressive courts are all a part of the common law tradition of liberty and should be considered deeply rooted in our nation’s history and tradition.

Download the article from SSRN at the link.

Akande on An Imperial History of Race-Religion in International Law @RabiatAkande @OsgoodeNews

Rabiat Akande, Osgoode Hall, has published An Imperial History of Race-Religion in International Law at 118 American Journal of International Law 1 (2024). Here is the abstract.

More than half a century after the UN’s adoption of the International Convention on the Prohibition of All Forms of Racial Discrimination, a debate has emerged over whether to extend the Convention’s protections to religious discrimination. This Article uses history to intervene in the debate. It argues that racial and religious othering were mutually co-constitutive in the colonial encounter and foundational to the making of modern international law. Moreover, the contemporary proposal to address the interplay of racial and religious othering is hardly new; iterations of that demand surfaced in the earlier twentieth century, as well. By illuminating the centrality of race-religion othering to the colonial encounter and chronicling failed attempts by Europe’s “others” to secure international legal protections, this Article makes a case for crafting an attuned response in the present.

Download the article from SSRN at the link.

Bulleit on Rumpole and the Dissatified Client @RopesGray

Thomas Bulleit, Ropes & Gray LLP, has published Rumpole and the Dissatisfied Client: Four Case Studies in Client Objectives v. Lawyer Means at 14 St. Mary's Journal on Legal Malpractice & Ethics 1 (2024). Here is the abstract.

Fictional barrister-at-law Horace Rumpole is a skillful, tenacious, and even fearsome courtroom advocate for his criminal defense clients. He cares deeply about winning. But Rumpole departs from the stereotypical heroes and antiheroes of fictional courtroom drama in that he typically complies fully with the ethical constraints on advocacy and the truth-finding process. When Rumpole does occasionally stumble, it is in the other direction: by losing track of his client, and presenting often unwanted truths to elevate victory above other needs or interests that the client considers just as, or sometimes much more, important than a favorable verdict. Using several of John Mortimer’s Rumpole of the Bailey short stories to illustrate, this Article explores the sometimes-awkward interaction of the client’s right to control decisions about the objectives of a legal representation, with the lawyer’s duty to make decisions about the means. The Article tries to show how this interaction surfaces client self-determination as a positive, if not always properly-appreciated, principle of justice in our legal system, and closes with a discussion of lessons the Rumpole stories may have for so-called movement lawyering.

Download the article from SSRN at the link.

For more on Rumpole and law and literature, see 

Paul Bergman, Rumpole's Ethics, 1 Berkeley J. Ent. & Sports L. 117 (2012).

Christine A. Corcos, Law and Silence in the Legal Drama: Rumpole of the Bailey, 1 Compar(a)ison 145 (2003).

John A. Flood, Rake and Rumpole: Mavericks for Justice--Purity and Impuity in Legal Professionalism, in Law, Lawyers, and Justice: Through Australian Lenses 17.

ICYMI: Husa on Exploring Imaginative Legal History: The Legalism of the House Stark in the Game of Thrones @HusaJaakko

ICYMI: Jaakko Husa, University of Helsinki Faculty of Law, has published Exploring Imaginative Legal History: The Legalism of the House Stark in the Game of Thrones at 20 Media & Arts Law Review 181 (2015). Here is the abstract.

This article examines George R R Martin’s imaginative historical narrative in his book series A Song of Ice and Fire. The first book of the series (A Game of Thrones) is highlighted and discussed from the points of view of legal history and applied legal theory. The article concentrates on the legal mentality of one of the noble Houses in A Game of Thrones and discusses Martin’s rich narrative in its relation to the real feudal legal history and jurisprudential frameworks it displays. Analysis focuses on the rules of succession. It will be argued that even though the House Stark’s attitude and mentality can be labelled as legalistic and surprisingly modern it can be seen as a natural part of the imaginative feudal world of A Game of Thrones. The article concludes that, by studying the legalistic attitude and mentality of the House Stark, we can also learn about the legal theoretical nature of modern legalism. Paradoxically, it is also suggested that the study of imaginative legal history deepens our understanding of ‘real’ legal history. Moreover, the author argues that analysis of imaginative legal history expands our legal mind and immerses us in alternative horizons of law.

Downoad the article from SSRN at the link.

Rabban on Jhering's Influence on American Legal Thought @UTexasLaw

David M. Rabban, University of Texas School of Law, is publishing Jhering's Influence on American Legal Thought in Jhering Global (Stephan Meder and Christoph-Eric Mecke, eds., V&R unipress, 2023). Here is the abstract.

This article was published as a chapter in Jhering Global, edited by Stephan Meder and Christoph-Eric Mecke (V&R unipress 2023), a collection of essays about Jhering and his influence throughout the world. Before 1900, Jhering was a well-known model for American legal scholars, some of whom had studied law in Germany, including with Jhering himself. The most enduring work of legal scholarship ever written by an American, Oliver Wendell Holmes, Jr.’s The Common Law, published in 1881, reflects Jhering’s substantial influence, though Holmes himself often did not acknowledge it. Roscoe Pound, whose development of sociological jurisprudence before World War I trans- formed American legal scholarship, graciously and repeatedly indicated how much his own major themes derived from Jhering. Legal realists of the next generation saw themselves as extending Pound’s sociological jurisprudence, recognized its roots in Jhering, and memorably invoked Jhering himself. Eminent German law professors who emigrated to the United States as refugees from Nazi Germany in the 1930s applied Jhering’s ideas to scholarly and judicial developments in the United States. Though citations of Jhering by American scholars have continued at a relatively constant rate since World War II, most occur while assessing his influence on previous American scholars rather than as a living source for current legal analysis. Many of the recent scholars who cite Jhering, in contrast to their predecessors who often knew German, are only able to read him in translation. My strong impression is that most American legal scholars today have never even heard of Jhering. An important influence on American legal thought in the past, he is now largely unknown.

The essay is not available for download from SSRN.  

Larson on Treason and the Treatise: English Legal Treatises in the American Revolution and Early National Period @carltonfwlarson @UCDavisLaw

Carlton F. W. Larson, University of California, Davis, School of Law, has published Treason and the Treatise: English Legal Treatises in the American Revolution and Early National Period in Perspectives on the Legal Treatise: Proceedings of the Second Yale Legal Information Symposium. Here is the abstract.

Following independence, American attorneys and judges relied extensively on English legal treatises to interpret the framework of American treason law. These treatises became vital participants in the ongoing national conversation about sovereignty, allegiance, and independence. Despite the significant changes wrought by independence, the American legal establishment relied on an English legal framework—defined almost entirely by treatises—when interpreting the highest crime known to the law.

Download the article from SSRN at the link.

Solove and Hartzog on Kafka in the Age of AI and the Futility of Privacy as Control @DanielSolove @hartzog @gwlaw @BU_Law @BULawReview

Daniel J. Solove, George Washington Law School, and Woodrow Hartzog, Boston University Law School, Stanford Law School Center for Internet and Society, are publishing Kafka in the Age of AI and the Futility of Privacy as Control in volume 104 of the Boston University Law Review. Here is the abstract.

Although writing more than a century ago, Franz Kafka captured the core problem of digital technologies – how individuals are rendered powerless and vulnerable. During the past fifty years, and especially in the 21st century, privacy laws have been sprouting up around the world. These laws are often based heavily on an Individual Control Model that aims to empower individuals with rights to help them control the collection, use, and disclosure of their data. In this Essay, we argue that although Kafka starkly shows us the plight of the disempowered individual, his work also paradoxically suggests that empowering the individual isn’t the answer to protecting privacy, especially in the age of artificial intelligence. In Kafka’s world, characters readily submit to authority, even when they aren’t forced and even when doing so leads to injury or death. The victims are blamed, and they even blame themselves. Although Kafka’s view of human nature is exaggerated for darkly comedic effect, it nevertheless captures many truths that privacy law must reckon with. Even if dark patterns and dirty manipulative practices are cleaned up, people will still make bad decisions about privacy. Despite warnings, people will embrace the technologies that hurt them. When given control over their data, people will give it right back. And when people’s data is used in unexpected and harmful ways, people will often blame themselves. Kafka’s provides key insights for regulating privacy in the age of AI. The law can’t empower individuals when it is the system that renders them powerless. Ultimately, privacy law’s primary goal should not be to give individuals control over their data. Instead, the law should focus on ensuring a societal structure that brings the collection, use, and disclosure of personal data under control.

Download the article from SSRN at the link.

Priel on The Legal Realists on Law and Literature @OsgoodeNews @Elgar_Law @ElgarPublishing

Dan Priel, Osgoode Hall, is publishing The Legal Realists on Law and Literature in The Elgar Concise Encyclopedia of Law and Literature (Robert Spoo & Simon Stern eds., 2024) (Forthcoming). Here is the abstract.

This encyclopedia entry considers the legal realists’ neglected contribution to law and literature. Starting with Cardozo’s essay ‘law and literature’ on the importance of judicial style, it then considers the contributions of the legal realists to the topic, focusing especially on Karl Llewellyn and Jerome Frank. Cardozo and Frank—both judges who were interested in making sure they effectively conveyed their ideas—focused on the style a judge should adopt. By contrast, Llewellyn’s more sociological perspective was concerned with how different periods (as well as different jurisdictions) were dominated by different judicial styles. However, in both cases the question of judicial style also had a political aspect. For Frank, judicial style was important for clearly communicating with the average person subject to law; for Llewellyn, judicial style mattered, because there was a connection between the form of a decision and its substantive quality.

Download the essay from SSRN at the link.

Rose on Property and Literature: the View From Shakespeare's Venice @uarizonalaw @ArsScripta @@ElgarPublishing @Elgar_Law @

Carol M. Rose, University of Arizona College of Law, is publishing Property and Literature: the View From Shakespeare’s Venice in The Elgar Concise Encyclopedia of Law and Literature(Robert Spoo & Simon Stern eds., 2024). Here is the abstract.

This entry explores property issues in The Merchant of Venice, and in particular the Merchant’s posture toward important claims that have been made for property since the Enlightenment: that secure property enhances social wealth, that property protects individual autonomy, and that property permits the projection of personal projects in the world. The conclusion is that Merchant critiques each from the perspective of considerably older views of the role of property in society. The entry also discusses another claim for property and commerce that some have found in Merchant—that property and commerce soften manners and promote cooperation--but concludes that Merchant does not address that claim despite its setting in the then highly commercial city of Venice.

Download the essay from SSRN at the link.

Announcement: Summer Institute on the Cultural Study of the Law

From the University of Osnabrueck Summer Institute:

Announcement

Rights without Borders? Subjects, Precarity, Agency

9th International Osnabrück Summer Institute on the Cultural Study of the Law

https://eur02.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.osi.uni-osnabrueck.de%2F&data=05%7C02%7Ct.giddens%40dundee.ac.uk%7C44117da70d1a48f991ee08dc332730c3%7Cae323139093a4d2a81a65d334bcd9019%7C0%7C0%7C638441491381021989%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C60000%7C%7C%7C&sdata=yontL%2BS%2FLckhoQZRk3ypa2IOCGJ0u7d%2FJRsrhFPcYyM%3D&reserved=0

The 9th International Osnabrück Summer Institute on the Cultural Study of the Law (OSI) will be held from July 6 to 14, 2024 at Osnabrück University, Germany. It aims to encourage and further promote the interdisciplinary study and research of the interrelations between law and culture, based on the idea that the extended cultural study of the law will foster productive scholarly exchange and dialogue between legal studies and the humanities.

The 2024 OSI will concentrate on key issues and debates within contemporary cultural legal studies, exploring questions related to, for instance, rights in general, legal personhood and citizenship, human rights, and the rights of migrants. We are interested specifically in the following:

• The historical evolution of predominant (legal) concepts of rights, human rights, and legal personhood, regarding current debates on culture as an abiding discourse that enables legal subjectivity and rights claims, as much as it offers a resource for legal critique.
• The cultural presence and portrayal of the law and the influence of culture in depicting and disseminating concepts of rights, human rights, ownership, appropriation, dispossession, etc. (e.g., in fields such as law and literature, critical humanities, life writing and human rights, philosophy of human rights, migration and rights).
• How the (cultural and historical) semantics of rights, human rights, and legal personhood manifest in critical theory and discourse, exploring the application of rights theory in the humanities and critical cultural studies.
• How a precarious legal status or a flexible approach to legal personhood, both historically and in current debates, facilitates critical discussion on (human) rights and our understanding of their nature and scope (how or whether they might be claimed by people on the move, enslaved people, indigenous peoples, stateless people, women, LGBTQ+ individuals etc.).

The OSI brings together leading scholars in the field of cultural legal studies with international graduate students from the humanities, legal studies, the social and political sciences, art, and history to create a rare opportunity for the comparative study of law and culture and their complex interrelation. The Institute will offer a combination of thematic workshop sessions, small group seminars and a concluding conference which will focus on key issues and debates in current cultural legal studies. lt will offer placements for up to 20 international participants (doctoral, post-doctoral and advanced M.A.).

Confirmed faculty for the 2024 OSI include:

Jeannine DeLombard (English and History / UC Santa Barbara)
Leila Neti (English and Postcolonial Literature / Occidental College, LA)
Leti Volpp (Law / UC Berkeley)
Bryan Wagner (English / UC Berkeley)
Marco Wan (Law / U of Hongkong)

Eligibility

The Summer Institute invites doctoral and postdoctoral students from various academic fields whose research interests and projects are situated at the interface between law and the humanities and who are concerned with a better understanding of the interdependence of law and culture.
Doctoral candidates in literature, the law, the arts, the humanities, and the related social sciences are encouraged to apply, as are advanced students pursuing a J.D. or its equivalent (such as the L.L.B). Young scholars or junior faculty members who have received a Ph.D. or corresponding degree in the last five years are also eligible. While applications by doctoral/post-doctoral students are prioritized, the Summer Institute will also consider strong applications from advanced Master students about to conclude their studies and with a strong interest in interdisciplinary research.

Application Process

Students interested in taking part in the Summer Institute should submit their applications no later than April 1st, 2024. Detailed and updated information about the Institute, the sessions, international faculty, admission and fees can be found at:

https://eur02.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.osi.uni-osnabrueck.de%2F&data=05%7C02%7Ct.giddens%40dundee.ac.uk%7C44117da70d1a48f991ee08dc332730c3%7Cae323139093a4d2a81a65d334bcd9019%7C0%7C0%7C638441491381027788%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C60000%7C%7C%7C&sdata=tlJcvBoZmFJS4NCuK2OoznGm3FvA6SeNEy9YY%2FyJZv8%3D&reserved=0

*Questions*

Please direct all inquiries and questions to the OSI coordinator at lawandculture@uos.de

--
OSI Team
International Osnabrück Summer Institute
c/o Institute for English and American Studies (IfAA)
Universität Osnabrück
Neuer Graben 40
D-49074 Osnabrück / Germany
e-mail: lawandculture@uos.de
https://eur02.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.osi.uni-osnabrueck.de%2F&data=05%7C02%7Ct.giddens%40dundee.ac.uk%7C44117da70d1a48f991ee08dc332730c3%7Cae323139093a4d2a81a65d334bcd9019%7C0%7C0%7C638441491381032252%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C60000%7C%7C%7C&sdata=Ce9v8UZKTEWpHTLC8UGWfCT4iFq60zKdudpqWGESNhM%3D&reserved=0

Webber on Gilead Constitutionalism @GregoireWebber @queensulaw @LSELaw

Grégoire Webber, Queen's University Faculty of Law; London School of Economics, Law School, has published Gilead Constitutionalism as Queen's University Legal Research Paper 2024-001. Here is the abstract.

This essay explores the concept of government by drawing on the liberal tradition of limited government. In that tradition, moral autonomy and independence are situated as the source of limits on government justified on other grounds. An alternative relationship between government and moral autonomy and independence is here examined, one according to which such autonomy and independence lie at the very heart of the justification for government rather than limiting its activity. The task of government is thus conceived as enabling moral autonomy and independence. One consequence of this way of understanding the justification for government is to deny that a government uncommitted to the liberal ideas of autonomy and independence counts as a government. Drawing on the example of Gilead in Margaret Atwood’s The Handmaid’s Tale, I explore how the claim of the officers of Gilead to be a government fails: in indiscriminately violating moral autonomy and independence, those officers are tyrants, oppressors, dictators, autocrats—but they are no government. This essay, to be included in a collection in celebration of Leslie Green, concludes by exploring how Green’s contributions to our understanding of government and governing were developed in conversation with one whose ideas on many matters were at a great distance from Green’s own. Green’s example of honourable engagement is a reminder of how progress in jurisprudence is facilitated by seeking the truth in charitable collaboration with others.

Download the article from SSRN at the link. NB: There are two versions of this article.

Ziegler on The History of Neutrality: Dobbs and the Social Movement Politics of History and Tradition @maryrziegler @YaleLJournal

Mary Ziegler, University of California, Davis, School of Law, is publishing The History of Neutrality: Dobbs and the Social Movement Politics of History and Tradition in the Yale Law Journal Forum. Here is the abstract.

By excavating the history around the history-and-tradition test used in Dobbs v. Jackson Women's Health Organization and the alternative it pushes to the side, this Essay reconsiders the meaning—and plausibility—of neutrality claims turning on the Dobbs Court’s use of history and tradition.

Download the essay from SSRN at the link.

Legal-Literary Imagining: An Early Modern Workshop, 11 March 2024. 10.30am – 6.00pm. New College, Oxford & St John’s College, Oxford

 Literary-Legal Imagining is a one–day workshop, hosted by New College and St John’s College, and supported by CEMS and the English Faculty. This workshop will explore the kinds of research questions that arise from the pervasive overlapping of the legal and the literary in early modern life and texts.

Registration is free but essential for catering purposes. If you would like to attend, please contact daniel.haywood@sjc.ox.ac.uk to register by 28 February 2024.

 More about the workshop here. 

Davies on Square Dancing and a Cat at the Supreme Court @horacefuller @georgemasonlaw

Ross E. Davies, George Mason University School of Law, has published Square Dancing and a Cat at the Supreme Court: Justice Harry A. Blackmun’s First Moment in Charge at 11 Journal of Law 1 (2023). Here is the abstract.

Associate Justice Harry A. Blackmun served on the Supreme Court of the United States from June 1970 to August 1994. He had mixed feelings about the Chief Justices with whom he served. How might a Blackmun Chief Justiceship have been different?

Download the essay from SSRN at the link.

Pardo on Rethinking Antebellum Bankruptcy @WashULaw @COLawReview

Rafael I. Pardo, Washington University, St. Louis, School of Law, is publishing Rethinking Antebellum Bankruptcy in volume 95 of the University of Colorado Law Review. Here is the abstract.

Bankruptcy law has been repeatedly reinvented over time in response to changing circumstances. The Bankruptcy Act of 1841—passed by Congress to address the financial ruin caused by the Panic of 1837—constituted a revolutionary break from its immediate predecessor, the Bankruptcy Act of 1800, which was the nation’s first bankruptcy statute. Although Congress repealed the 1841 Act in 1843, the legislation lasted significantly longer than recognized by scholars. The repeal legislation permitted pending bankruptcy cases to be finally resolved pursuant to the Act’s terms. Because debtors flooded the judicially understaffed 1841 Act system with over 46,000 cases, the Act’s administration continued into the 1860s, thereby allowing further development of the law. Importantly, the system operated at a time when the role of the business of slavery in the national economy was increasingly expanding. This Article focuses on two postrepeal episodes involving legal innovation under the Act to demonstrate how an expanded periodization of its duration yields fresh insights into understanding the interaction between federal bankruptcy law and slavery: (1) the judicial constitutional settlement of voluntary bankruptcy relief, part of which occurred through a case involving a bankrupt enslaver; and (2) the practice pursuant to which some federal district courts empowered assignees—the federal court officials appointed to administer property surrendered by bankrupts in 1841 Act cases—to operate a bankrupt’s business before liquidating it, as evidenced by certain cases involving plantation owners who sought relief under the Act.

Download the article from SSRN at the link.

Call For Papers, Authoring Slavery, Aarhus University, June 18-19, 2024

 From Symposium organizers, Aarhus University, Denmark

 

Dear colleagues,

 

Please find attached a call for papers for our 2 day seminar on ‘Authoring slavery’  which we are organizing at Aarhus University, from 18-19th of June 2024. Here is the link to the event on our website: Authoring slavery.

 

The deadline for paper proposals is March 1, 2024.

 

Please send a 300-500 words abstract, with name, email and institutional affiliation to:

 

Pelckmans@hum.ku.dk and madsbaggesgaard@cc.au.dk

 

You may also consider to propose an article for our upcoming publication on Slavery, Authorship and Literary Culture, vol. 3 of Comparative Literary History of Modern Slavery. Here the deadline is April 1.

 

Looking forward to your inspiring contributions!

 

And please share with interested colleagues.

 Mads Anders Baggesgaard

Associate professor, PhD

Direct: +45 87 16 30 92

Mobile: +45 61 65 81 94

Dr. Lotte Pelckmans

 

P.S. Unfortunately, we do not dispose of funding to support travel, but participation is free.

 

Pozen on The Common Law of Constitutional Conventions @ColumbiaLaw @CalifLRev

David Pozen, Columbia University Law School, is publishing The Common Law of Constitutional Conventions in the California Law Review. Here is the abstract.

Professor Jill Lepore's Jorde lecture paints a rich portrait of state constitutional conventions as engines of democratization during the 1800s and issues a dire warning about the United States' ongoing amendment drought. Citing their unfamiliarity, however, Lepore declines to consider federal constitutional conventions as a possible corrective. In this response Essay, I argue: first, that Lepore's marginalization of Article V's convention mechanism is in tension with her own historical and normative account; second, that while Lepore's wariness of conventions is entirely understandable given the state of our politics—and entirely commonplace among progressives—it carries significant risks of its own; and third, that constitutional conventions are not as unfamiliar as they might seem and that our long experience with this institution at the state level supplies guidance as to how a federal convention might be made less scary and more legitimate. If we wish to revive the Framers' "philosophy of amendment" and reclaim popular control over fundamental law, we must figure out how to operationalize that philosophy through credible procedures. The common law of constitutional conventions is a vital resource for this task.

Download the article from SSRN at the link.

Phillips on A Corpus Linguistic Analysis of "Possessions" in American English, 1760-1776 @BYU

James Cleith Phillips, Brigham Young University, is publishing A Corpus Linguistic Analysis of "Possessions" in American English, 1760-1776 in the Chapman Law Review. Here is the abstract.

The U.S. Constitution’s Fourth Amendment protects against unreasonable searches and seizures of persons, houses, papers, and effects. Yet state constitutions often use different language, thus providing a different scope of protection. Specifically, starting with Pennsylvania in 1776, sixteen states have constitutional provisions that include possessions as protected from unreasonable searches and seizures. And currently there is litigation in various state courts, including the Pennsylvania State Court, over the meaning of this constitutional protection. Possessions potentially implies more than houses, papers, or effects—arguably covering anything one possesses, including private land, which would significantly expand the coverage of such constitutional protection. But traditional tools of constitutional interpretation, such as dictionaries or etymology, often fall short in uncovering the original public meaning of constitutional text. Hence, increasingly courts (including the U.S. Supreme Court) have looked to corpus linguistics to better answer the linguistic questions that judges face in interpreting the words of the law. Understandably, judges use economic tools to tackle economic questions and historical tools to answer historical questions. Should they not use linguistic tools for linguistic questions? “[W]ords are . . . the material of which laws are made. Everything depends on our understanding of them.” We can and should use the right tools for seeking this understanding. This article will proceed in four parts. Part I introduces the question at issue in the context of the first state constitution to include the term: the Pennsylvania Constitution. It does so, at least in part, because other state constitutions arguably copied the Pennsylvania Constitution, and thus the meaning of the that constitution likely sheds light on the state constitutions that followed it. Part II highlights shortcomings of the traditional tools usually employed in constitutional interpretation. Part III explains how the tools of corpus linguistics can address these shortcomings. And Part IV presents a corpus linguistic analysis of the term possessions. This approach, more rigorous than that usually undertaken, provides data on the linguistic question that undergirds the legal issue—which reading of these state constitutions is more probable than the other. After all, a “problem in [legal interpretation] can seriously bother courts only when there is a contest between probabilities of meaning.” Corpus linguistics can help with that contest. And this article finds that founding-era Americans sometimes used the word possessions to include land one owned, and sometimes not. In the context of the lemma land, a majority of the time the word possessions appeared to include land as property. More significantly, when looking more broadly at any instance of the term possessions, whether or not the lemma land was used nearby, early Americans used the term to include land approximately 86% of the time. This is evidence, then, that the Pennsylvania Constitution, and likely other state constitutions, were originally understood to protect against unreasonable searches of one’s land—thus providing broader protection than the U.S. Constitution’s Fourth Amendment.

Download the article from SSRN at the link.

Simon on More True Confessions of a Legal Writing Professor @uarizonalaw

Diana Simon, University of Arizona College of Law, is publishing More True Confessions of a Legal Writing Professor: Down the Rabbit Hole with Doe in Arizona Attorney. Here is the abstract.

This, at times, irreverent, article is about the practice of using Doe parties in litigation. First, the history of the practice is covered. Second, expansion of the practice is covered along with the reasons why it is disfavored and what the legal test is for allowing fictitious names in litigation, Finally, the article addresses the wide range of names used for pseudonyms beyond just Jane and John Doe.

Download the essay from SSRN at the link.

Call For Papers, Brazilian Journal of International Law @franca_marcilio

From Professor Marcilio Franca, a call for papers for a special issue of the Brazilian Journal of International Law:

BRAZILIAN JOURNAL OF INTERNATIONAL LAW Call for Papers Vol. 21 n. 2 2024   Deadline for submissions: 1st June 2024   SPECIAL ISSUE   The Brazilian Journal of International Law, a SCOPUS-indexed review, invites submissions for a special issue on “International Food Law” to be published in October 2024. The issue will be edited by Professors Marcílio Toscano Franca Filho (Federal University of Paraíba) and Ardyllis Alves Soares (University Centre of Brasilia).   The relationships between food, flavor, taste, palate and law are as old as they are broad. For many centuries, legal norms have been responsible for regulating our ways of eating, drinking, producing food and consuming it, including rules on health protection, labelling, geographical demarcations, authenticity, international trade, food safety, human rights to food, religion (kosher and halal foods) and gastronomic cultural heritage. Private international law, in turn, in addition to many types of contracts on the production, consumption and transport of food, also deals with the “duty of food”. In Europe and the United States, an autonomous branch of Law called Food Law has long been well established, a transdisciplinary field located somewhere between Economic Law, Administrative Law, International Law and Consumer Law. It is also important to mention international organizations related to specific products, such as the “Association Internationale des Juristes pour le Droit de la Vigne et du Vin” (AIDV), founded in 1985 to analyze legal issues relating to the international wine trade. All these circumstances denote the current nature of the debate on Law & Food and legitimize the production of a Dossier on "Food and International Law", in the Brazilian Journal of International Law, which could host texts by Brazilian and foreign colleagues on the following topics:   - Human Right to Food - Food safety - Labeling, risks, precautions and traceability - New Foods (insects, flowers, GMOs, etc.) and international regulation - Intellectual property and food - ESG and international food trade - International regulation of certain foods in kind such as sugar, coffee, wine, spirits and cheese - International protection of food consumers - SDGs and food - Climate change and food - The protection of animals - Sanitary and phytosanitary measures - International organizations with influence on the agri-food sector: FAO, UNESCO, WHO, Codex Alimentarius, World Organization for Animal Health (OIE).   Formal aspects (requirements): 1) Manuscripts should be written in Times New Roman, size 12, space between lines 1,0 throughout the manuscript (including all quotations, endnotes and references). 2) Minimum degree: * Individual authorship: Doctor; * Co-authorship: Master, being in co-authorship with a Doctor. If there are three or more authors, only one co-author must be a non-doctor with the aforementioned minimum degree (Master). 3) Footnote citation (author-date will be rejected without review); 4) Do not use Latin expressions on footnotes (id., ibid., op. cit, supra, note…). Repeat the whole reference and the referred pages. 5) Reference list at the end; 6) 15-25 pages, including the reference list at the end. Link: https://www.publicacoesacademicas.uniceub.br/rdi   Important remarks: - Only International Law and Comparative Law approaches will be considered. National or majorly national approaches won't be considered.     REVISTA DE DIREITO INTERNACIONAL Chamada para submissão Vol. 21 n. 2 2024   Prazo para inscrições: 1º de junho de 2024   Dossiê Especial A Revista de Direito Internacional abre inscrições para um dossiê especial sobre “Direito Alimentar Internacional” a ser publicado em outubro de 2024. O número será editado pelos professores Marcílio Toscano Franca Filho (Universidade Federal da Paraíba) e Ardyllis Alves Soares (Centro Universitário de Brasília).   As relações entre alimento, sabor, gosto, paladar e direito são tão antigos quanto amplas. Há muitos séculos que as normas jurídicas cuidam de regular as nossas formas de comer, beber, produzir alimentos e consumi-los, nisso incluindo as regras sobre a proteção à saúde, rotulagem, demarcações geográficas, autenticidade, comércio internacional, segurança alimentar, direito humano à alimentação, religião (comidas kosher e halal) e patrimônio cultural gastronômico. O direito internacional privado, por seu turno, além de muitos tipos de contratos sobre a produção, o consumo e o transporte de alimentos, trata ainda do “dever de alimentos”. Na Europa e nos Estados Unidos, há tempos também já está bem estabelecido um ramo autônomo do Direito denominado Food Law (Direito da Alimentação), campo transdisciplinar localizado algures entre o Direito Econômico, o Direito Administrativo, o Direito Internacional e o Direito do Consumidor. Também importante mencionar organizações internacionais relacionadas a produtos específicos, como a “Association Internationale des Juristes pour le Droit de la Vigne et du Vin” (AIDV), fundada em 1985 com o objetivo de analisar as questões jurídicas relativas ao comércio internacional do vinho. Todas essas circunstâncias denotam a atualidade do debate sobre Direito & Alimentação e legitimam a produção de Dossiê sobre "Comida e Direito Internacional", na Revista de Direito Internacional, que poderia albergar textos de colegas brasileiros e estrangeiros sobre os seguintes temas:   - Direito Humano à Alimentação - Segurança alimentar - Rotulagem, riscos, precaução e rastreabilidade - Novos Alimentos (insetos, flores, OGM etc.) e regulação internacional - Propriedade Intelectual e alimentação - ESG e comércio internacional de alimentos - Regulação internacional de determinados alimentos em espécie como açúcar, café, vinho, destilados e queijo - Proteção internacional dos consumidores de alimentos - ODS e alimentação - Mudanças climáticas e alimentos - A proteção dos animais - Medidas sanitárias e fitossanitárias - As organizações internacionais com influência no setor agro-alimentar: FAO, UNESCO, OMS, Codex Alimentarius, World Organization for Animal Health (OIE).   Aspectos formais (requisitos): 1) Os manuscritos deverão ser escritos em Times New Roman, tamanho 12, espaço entre linhas 1,0 em todo o manuscrito (incluindo todas as citações, notas finais e referências). 2)Titulação mínima: * Autoria individual: Doutor; * Coautoria: Mestre, estando em coautoria com um Doutor. Havendo três ou mais autores, apenas um co-autor deverá ser não-doutor com a titulação mínima acima mencionada (Mestre). 3) Citação em nota de rodapé (texto com citação autor-data serão rejeitados sem avaliação); 4) Não use expressões latinas em notas de rodapé (id., ibid., op. cit, supra, nota…). Repita as informações da referência e as páginas referidas. 5) Lista de referências no final; 6) 15-25 páginas, incluindo lista de referências no final. Link: https://www.publicacoesacademicas.uniceub.br/rdi Importantes considerações: - Somente abordagens de Direito Internacional e de Direito Comparado serão consideradas. Abordagens exclusivamente ou majoritariamente nacionais não serão consideradas.

Emerging Normativities: Hybrid Public Lecture Series on Law, Governance, and Digital Technologies, University of Westminster Law School

From Daniela Gandorfer, Legal Scholar//Co-Director of LoPh//Founder of Code-X-Diagrams//Blockchain Gov Consultant Westminster University School of Law

I am writing to invite you to 'Emerging Normativities,’ a hybrid Public Lecture Series on Law, Governance, and Digital Technologies, at University of Westminster L:aw School and in collaboration with LoPH+.

 

In a nutshell, we ask: What happens at the new governmental frontier and who is drafting the social digital contract?

 

THE SERIES As climate change is shifting the material and social conditions of existence on planet Earth, skepticism towards representative governmental structures and a desire for alternative economic models rise. This transformative shift unfolds amidst the ascendancy of authoritarian regimes and a surge in global conflicts. Concurrently, cutting-edge technologies like distributed ledgers, IoT, robotics, AI, and mixed reality are dismantling traditional political and legal paradigms. This series dissect this intricate interplay shaping a novel governance frontier, both online and offline, often overlooked in mainstream discourse. It focuses on emerging tech-driven governance models - whether public or private, centralized or decentralized- driving fundamental shifts in legal and political theories through jurisdictional design, legal experimentation, and tech-democratization.

 

FIRST SESSION: FEB 8th Our first session, “Ground-Level Narratives: Digital Democracy (Taiwan) and Web3-City Prototyping (Zanzibar)," will take place on THU, Feb 8th, 2024, 2pm-4pm GMT, UG04 University of Westminster (Regent Street Campus)

 

DETAILS: You find the Zoom link on the poster. More information and posters also here. 

 

PLEA I would be grateful if you could share the invite with your network, friends, and colleagues, siblings, political opponents, unbearable neighbor, beloved critics, and tech-enthusiasts, perhaps your your digital pets.

 

Best wishes, Daniela

Waller on Antitrust and Pop Culture: The Sequel @LoyolaLaw

Spencer Weber Waller, Loyola University Chicago School of Law, has published Antitrust and Pop Culture: The Sequel at 37 Antitrust 53 (Summer 2023). Here is the abstract.

Every pop culture success receives the inevitable sequel. In spring 2022, I published A Pop Culture Guide to Antitrust showing how antitrust is depicted in the movies, on stage, in pop music, fiction, true crime, and on television and streaming services. Since 2022, the connection between antitrust and pop culture has only grown in importance. Note: Copyright 2023 American Bar Association. Reproduced by permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

See also A Pop Culture Guide to Antitrust.

Frampton on The First Black Jurors and the Integration of the American Jury @TFrampton @UVALaw @nyulawreview

Thomas Frampton, University of Virginia School of Law, is publishing The First Black Jurors and the Integration of the American Jury in the New York University Law Review for 2024. Here is the abstract.

Supreme Court opinions involving race and the jury invariably open with the Fourteenth Amendment, the Civil Rights Act of 1875, or landmark cases like Strauder v. West Virginia (1880). Legal scholars and historians unanimously report that free people of color did not serve as jurors, in either the North or South, until 1860. In fact, this Article shows, Black men served as jurors in antebellum America decades earlier than anyone has previously realized. While instances of early Black jury service were rare, campaigns insisting upon Black citizens’ admission to the jury-box were not. From the late 1830s onward, Black activists across the country organized to abolish the all-white jury. They faced, and occasionally overcame, staunch resistance. This Article uses jury lists, court records, convention minutes, diaries, bills of sale, tax rolls, and other overlooked primary sources to recover these forgotten efforts, led by activists who understood the jury-box to be both a marker and maker of citizenship. A broader historical perspective—one that centers Black activists in the decades before the ratification of the Fourteenth Amendment in 1868—offers a new way of thinking about the relationship between race, rights, citizenship, and the jury.

Download the article from SSRN at the link.

Ollikainen-Read and Murphy on Law as a Means of Communicating Colonial Control in India: Max Planck Lawcast, Episode 8 @maxplancklaw @mpilhlt

Erica Ollikainen-Read, Max Planck Institute for Legal History and Legal Theory, and Christopher Murphy, Max Planck Institute for the Study of Crime, Security and Law, have published Law as a Means of Communicating Colonial Control in India, as Max Planck Lawcast, Episode 8. Here is the abstract.

In this episode of the Lawcast, Erica Ollikainen-Read explains to Christopher Murphy that the British Empire was not just shipping, merchants, soldiers, cannon, and conquest. Rather, some of the most long-lasting parts of the British Empire are the ideas, laws, and symbols which Britain transplanted to their colonies, some of which remain to this day. One such case in point is India, where the British colonial presence and the nature of Britain’s priorities shifted over time. By viewing the law from the perspective of communication, we can see how colonial legal culture and the way in which it was used as a tool for control in India also changed

. Listen on: Spotify and Apple. For more Max Planck Lawcasts: https://law.mpg.de/lawcast/.

Teaching Materials on Comics, From Nick Sousanis @nsousanis on all the socials fwiw @SFSU

Newly available from Nick Sousanis:

Wonderful materials on how to make and use comics in the classroom at Spin, Weave, and Cut.

Nick is a professor at San Francisco State University and the author of the brilliant Unflattening (Harvard University Press, 2015). 

Davies on A Stout Stanza of Many Meanings, Maybe: The Romantic Roots of Some Buried Caesar @GB2d @horacefuller @georgemasonlaw

Ross E. Davies, George Mason University Law School; The Green Bag, has published A Stout Stanza of Many Meanings, Maybe: The Romantic Roots of Some Buried Caesar at 25 The Gazette, a Journal of Detective Fiction 4 (Autumn 2023).

This paper presents a bit of speculation — actually, two speculations — about Rex Stout’s sixth Nero Wolfe / Archie Goodwin novel, Some Buried Caesar. I hope those speculations will inspire — or perhaps it would be better to say incite — discussion about Stout’s choice of title for the tale. First, the question: Where did the title for this story come from? Second, the answers: (a) Stout’s familiarity (during an early romance) with the bloody yet bucolic lines from a famous poem — Omar Khayyam’s Rubáiyát — made the titling of a bloody murder mystery with a romantic plot thread in a bucolic setting easy, and (b) the Rubáiyát was connected in Stout’s mind not only with fine poetic lines about bloodshed and bucolics, but also with fraud, which was also a plot thread in Some Buried Caesar.

Download the article from SSRN at the link.

Call For Participation, 2024 European Society for the Study of English Conference: Panel: What Do the Humanities Have to Say to Law? @Greta_Olson_

 Call for participation: The 2024 European Society for the Study of English conference.

The conference will take place at the University of Lausanne, Switzerland, 26-30 August 2024. Calls for participation still include call for individual papers and posters and participation in the doctoral symposium. Both close January 31, 2024. 

Seminar 56, convened by Professors Greta Olson (University of Giessen, Germany) greta.olson@anglistik.uni-giessen.de,  Armelle Sabatier (Paris-Panthéon-Assas University, France) armelle.sabatier@u-paris2.fr, and Claire Wrobel (Paris-Panthéon-Assas University, France), has the following subject:

What do the Humanities have to say to Law?

 

CALL FOR SEMINAR PAPERS

 

For an in person panel at the

 

Seventeenth European Society for the Study of English conference in Lausanne, Switzerland (26-30 August 2024)

https://wp.unil.ch/esse2024/

 

 

Seminar 56: What do the Humanities have to say to Law?

 

This seminar makes the claim that the Humanities have a great deal to say to Law, legal

training, and critical legal theory. We investigate Law and Humanities research from the

perspectives of legal actors as well as scholars working in English Departments, located in

Continental Europe, bringing their own literary and legal systemic traditions to common law

and Anglophone legal texts. The seminar investigates new directions in Law and the

Humanities, including – but not exclusively – how affect and metaphor theory change the

primarily narrative-based research that has dominated the past.

 

Please send 250-word abstracts and a brief bio to all of the convenors before February 10th.