March 15, 2024

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.  

March 13, 2024

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.

March 5, 2024

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.

February 29, 2024

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.

February 26, 2024

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

February 25, 2024

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.

February 20, 2024

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.

February 15, 2024

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. 

February 13, 2024

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.

February 12, 2024

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.

February 8, 2024

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.

February 6, 2024

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.

February 2, 2024

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

February 1, 2024

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.

January 31, 2024

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.

January 29, 2024

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/.

January 26, 2024

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). 

January 24, 2024

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.

January 23, 2024

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.

 


January 22, 2024

Bahnson and Shreve on Legal Treatises and the Evolution of Civil Rights Case Law @DukeLawLibrary @DukeLaw

Jane Bahnson and Wickliffe Shreve, both of Duke University School of Law, have published Legal Treatises and the Evolution of Civil Rights Case Law as Duke Law School Public Law & Legal Theory Series No. 2023-68. Here is the abstract.
During the 2022 term, the Supreme Court cited treatises to change legal precedent in two important civil rights cases. We examined the Supreme Court’s use of treatises in previous terms to reverse course on civil rights. Of 315 opinions identified, approximately half included treatise citations, more often by conservative-leaning Justices. This paper discusses the use of treatises by the Supreme Court to support its decisions in civil rights cases.
Download the article from SSRN at the link.

Zhang on The Private Law Influence of the Great Qing Code @ZhangTaisu @YaleLawSch @CambridgeUP

Taisu Zhang, Yale Law School, has published The Private Law Influence of the Great Qing Code in The Making of the Chinese Civil Code 249-268 (Hao Jiang & Pietro Sirena eds., Cambridge Univ. Press, 2023). Here is the abstract.
This chapter considers the socioeconomic functionality of legal codes and codification through the lens of late imperial Chinese legal history. Specifically, it asks whether formal legal codes can wield significant influence over private socioeconomic behavior despite being poorly enforced—or even unenforced—and whether such influence derives, in part, from the symbolic value of codification itself. It argues that the answer to both questions is likely “yes,” at least in the context of Qing Dynasty private law. This contains potentially generalizable insights into the nature of legal authority and prestige, some of which may potentially be applied to the recent passage of the Chinese Civil Code in 2020.
Download the essay from SSRN at the link.

January 19, 2024

van den Berge on Roman Dictatorship: Emergency Government and the Limits of Legality @berge_lukas @UniUtrecht

Lukas van den Berge, Utrecht University Faculty of Law, has published Roman Dictatorship: Emergency Government and the Limits of Legality as a Utrecht University School of Law Research Paper. Here is the abstrac
Doctrinal approaches to Roman law are currently often supplemented by contextual legal-historical scholarship that aims to expose Roman law’s connections with its socio-political, religious and broader intellectual environment. This article draws attention to the relevance of such contextual research for modern legal problems. An analysis of the Roman dictatorship and its reception history in legal and constitutional scholarship serves as a case in point. Contrary to common belief, the far-reaching powers of the Roman dictator – acting to save the Roman Republic in times of great peril – were controlled by informal rather than formal legal restraints. A corrected understanding of the Roman dictatorship is arguably not only important for an appropriate assessment of the Roman constitution itself, but also for current debates on the limits of legality in times of emergency.
Download the article from SSRN at the link.

January 16, 2024

Stanchi on The Rhetoric of Rape Through the Lens of Commonwealth of Berkowitz @BoydLawUNLV

Kathryn Stanchi, University of Nevada, Las Vegas, School of Law, is publishing The Rhetoric of Rape Through the Lens of Commonwealth v. Berkowitz in the International Journal for the Semiotics of Law. Here is the abstract.
United States law and culture have yet to find a constructive and fair way to talk about rape, especially in “non-paradigmatic” rape cases like acquaintance or date rape. Particularly on college campuses, acquaintance rape is an ongoing, severe problem. Leading legal minds disagree sharply on how to address it. In part, this polarizing debate stems from our collective inability to free our language of the myths and stock stories that plague the subject of rape. No court case better exemplifies the problem than the notorious decision of the Pennsylvania Supreme Court in Commonwealth v. Berkowitz, one of the most widely taught rape cases in the United States. In his empirical study of attitudes on rape, Professor Dan Kahan used the Berkowitz facts in part because they are such an iconic representation of some of the more difficult and troubling issues surrounding acquaintance rape. In that study, Kahan concluded that whether people perceive a story as describing “rape” depends primarily on cultural cognition, meaning the cultural group to which the reader of the story belongs. The text and substance of the law’s definition of rape mattered little. Kahan concluded that if we wish to change outcomes in rape cases, the cultural understandings of rape, more than the law, must change. This essay takes Kahan’s conclusion that cultural understanding is the primary driver of rape outcomes and asks the question: from where does that cultural understanding come? In no small part, this essay argues, those cultural beliefs come from the law, particularly from legal narratives. The facts of judicial opinions reflect the judges’ cultural understanding of rape and then that cultural understanding becomes what rape is (and isn’t). That image of rape then powerfully influences cultural understanding within and outside of law. It is a recursive process by which legal narratives create and reinforce cultural understanding which then itself creates and reinforces legal narratives and so on in an endless loop. In this way, law is neither irrelevant nor innocent in the outcome of rape cases. It is just exerting its influence, often imperceptibly, through rhetoric.
Download the article from SSRN at the link.

January 14, 2024

Epps and Green on Black Lawyers Matter: An Oral History of Race-Inclusive Admissions at Yale @TempleLaw @TempleEpps

JoAnne Epps and Craig Green, both of Temple University School of Law, have published Black Lawyers Matter: An Oral History of Race-Inclusive Admissions at Yale as Temple University Legal Studies Research Paper No. 2023-21. Here is the abstract.
Almost no one knows that Yale had the first affirmative action policy of any elite law school in the country. Twelve Black students who were admitted in 1968 formed the largest nonwhite group to attend Yale Law School in 150 years. At the time, race-inclusive admissions were immediately condemned as an “explosive sociological experiment” in apartheid segregation that would damage Yale’s reputation while producing a sense of “intellectual superiority among the white students” and “intellectual inferiority among the Black students.” Critics endorsed a general aspiration for law schools to educate students from racial minority groups, but not at elite institutions like Yale: “There are many good regional and local law schools in Philadelphia, Boston, Los Angeles, and other metropolitan areas, where Black law students . . . can study law in competition with students of similar qualifications and aptitudes.” Despite those critiques and predictions, all of the twelve Black Yale students eventually became judges, professors, civil rights lawyers, government leaders, in-house counsel, or successful private attorneys. For more than fifty years—an “Affirmative Action Era”—elite law schools across the United States have admitted Black students who transformed the history of legal education, the legal profession, and society at large. To understand and document that phenomenon, we sought to contact every Black Yale law student from the entering classes of 1963 to 1978. Using oral history techniques, we interviewed forty-seven people in thirteen states, including one person from each class year. Such interviews offer unparalleled detail about Black students who attended Yale in this period, what law school was like at the time, professional opportunities that emerged afterward, and structural obstacles that individuals had to confront, overcome, or dismantle in law school and throughout their professional lives. This Article uses new historical materials and interpretations to challenge modern stereotypes and generalizations about affirmative action that have been endorsed by prominent critics including Justice Clarence Thomas. Specific historical narratives from former Yale students illustrate dramatic risks of colorblind constitutionalism across the country, and this Article’s multilayered history of affirmative action supports solutions that recognize the profound importance of Black law students in the past, present, and future. 
Download the article from SSRN at the link.

Hooton and Murphy on Provincial Poor Laws and Pauper Auctions: The Elizabethan Welfare System in Colonial Canada @MPICSL @mpilhlt @maxplancklaw

Victoria Hooton, 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 Provincial Poor Laws and Pauper Auctions: The Elizabethan Welfare System in Colonial Canada as Max Planck Lawcast, Episode 3. Here is the abstract.
In this episode Christopher Murphy travels back in time with Victoria Hooton to discuss the regulation of poverty in England and Wales in the early 17th century, with a specific focus on the 1601 Act for the Relief of the Poor. The Act reflected the prevailing moral sensibilities of the time, regarding who the worthy and the unworthy poor were and where the boundaries of welfare responsibility were to be drawn. After providing an overview of the legislation, the focus turns to the implementation of this welfare system in the Canadian provinces of Nova Scotia and New Brunswick during the mid-18th and 19th century.
Listen on: Spotify and Apple. For more Max Planck Lawcasts: https://law.mpg.de/lawcast/.

January 13, 2024

Edmonds on Why We Should Stop Talking About Violent Offenders: Storytelling and Decarceration @UMichLaw @nulawreview

Mira Edmonds, University of Michigan Law School, is publishing Why We Should Stop Talking About Violent Offenders: Storytelling and Decarceration in the Northeastern University Law School. Here is the abstract.
The movement to decarcerate risks foundering because of its failure to grapple with so-called “violent offenders,” who make up nearly half of U.S. prisoners. The treatment of people serving sentences for offenses categorized as violent is a primary reason for the continued problem of mass incarceration, despite widespread awareness of the phenomenon and significant bipartisan interest in its reduction. People convicted of “violent offenses” are serving historically anomalous and excessively long sentences, are generally denied clemency and compassionate release, and are excluded from a wide array of legal reform and policy changes with decarceral aims. Keeping these people in prison for life or near life sentences is extraordinarily expensive for state budgets, largely unnecessary from a public safety perspective, and cruel and unusual punishment from the viewpoint of international and historical standards. While the moral imperative to release those serving draconian sentences for nonviolent drug offenses is widely if not universally accepted, such efforts will ultimately be a drop in the bucket if we fail to address the 58% of state prisoners who are serving sentences for offenses categorized as violent. Quantitative data about the low rates of recidivism for people released after serving long sentences for violent offenses will not alone shift the focus of our policies or politics. Rather, we need to develop a more nuanced understanding of violent offenses and violent offenders by hearing the voices of people who have been directly impacted by violence and by the system’s response to violence. These are, in many cases, the same people. Their stories are complex and human, defying simplistic narratives about innocent victims and bad offenders. Storytelling offers possibilities for reconceptualizing the stale terminology around violence and for shifting the discourse. This Article draws on insights from the literature on epistemic injustice and criminal law democratization, together with the legal storytelling literature. It explores the power of storytelling as an advocacy tool in the slow work of person-by-person decarceration during back-end processes like clemency, parole, and compassionate release, as well as part of the broader movement for systemic decarceration. Storytelling is an important tool for advocates working within the system, as well as for abolitionists seeking to end the system. In some contexts, advocates and activists are best situated to tell these stories, but ultimately people should be given the opportunity and tools to tell their own stories.
Download the article from SSRN at the link.

Buffington on Being vs. Because: New Observations on the Syntax & Semantics of the US Constitution's Second Amendment @AlbanyLaw

Joe Buffington, Albany Law School, has published Being vs. Because: New Observations on the Syntax & Semantics of the US Constitution’s Second Amendment. Here is the abstract.
The Second Amendment of the US Constitution is ambiguous due to its subordination of one clause to another without the use of an overt subordinating conjunction. Many scholars have argued that the subordination is more or less similar, if not identical, to what is seen in because-clauses. One such scholar, Karen Sullivan, has recently used corpus linguistics to conclude that the likeliest interpretation of the Second Amendment’s subordination when the Amendment was written was one of “external causation,” where the militia clause is understood as the real-world reason why the right-to-bear-arms clause is true. This essay responds to Sullivan’s significant work by presenting three synchronic differences between being-clauses and because-clauses that suggest that external causation may not be an optimal interpretation of the Amendment’s structure, after all. An alternative analysis, where the missing conjunction is modeled as a covert proform, is proposed, and consequences of the analysis are considered – in particular, I present a novel argument that the US Supreme Court’s controversial decision in District of Columbia v. Heller was, in essence, correct.
Download the essay from SSRN at the link.

January 7, 2024

ICYMI: Shugerman on Removal of Context: Blackstone, Limited Monarchy, and the Limits of Unitary Originalism @jedshug @BU_Law

ICYMI: Jed H. Shugerman, Boston University School of Law, has published Removal of Context: Blackstone, Limited Monarchy, and the Limits of Unitary Originalism at 33 Yale Journal of Law & the Humanities 125 (2022). Here is the abstract.
This article is part of a series on Article II, questioning the unitary theory’s three pillars: the Executive Vesting Clause, the Take Care Clause (or the “Faithful Execution” clauses), and the Decision of 1789 (or more accurately, the Indecisions of 1789). “Removal of Context” focuses on the “executive power” part of the Vesting Clause: Did “executive power” imply supervision and removal in the eighteenth century? What do the unitary theorists cite to support their claim that “executive power” includes removal, and “indefeasibly” so? Unitary executive theorists rely on the English Crown in the seventeenth and eighteenth centuries, but they overlook or obscure the problems of relying on England’s limited monarchy, the era’s rise of Parliamentary supremacy over the Crown and its power to eliminate or regulate (i.e., make defeasible) royal prerogatives. There appears to be no evidence that executive removal was ever conceived as a “royal prerogative” at all, and the historical record indicates that the king did not have a general removal power at pleasure. The structure of the historical comparison has a major flaw: They concede that the Constitution explicitly limits many core royal powers, such war, peace (treaties), and the veto, so that the president is weaker than the king, but somehow Article II implies unnamed “executive powers” (like removal) that make a president stronger than a king? Moreover, there were eighteenth-century royal prerogatives related to law execution (prorogue and dissolution), but no one claims Article II “executive power” implies them. When one investigates the unitary evidence more closely and follows their sources, one finds a pattern of misinterpreting historical sources, especially Blackstone in amicus briefs and law review articles in the unitary executive scholarship. In particular, the recent brief by unitary scholars in Seila Law misinterprets Blackstone’s use of the word “disposing” of offices as removing, instead of dispensing or appointing (which are indicated by context and general usage) and then misquotes a passage from Blackstone, reversing his meaning from his uncertainty about the relevant law of offices to a certain positive claim about removal. These misreadings are more than just small or narrow errors. They obscure more significant points: Blackstone was fundamentally in favor of parliamentary supremacy, against “indefeasible” executive powers; and Blackstone never mentions removal as a royal prerogative or a general executive power, which is powerful counter-evidence to the unitary theorists’ assumptions. These errors are also a cautionary moment about originalist methods and the notion that originalism is more reliable or objective than other methods of interpretation.
Download the article from SSRN at the link.

See also 

Jed H. Shugerman, The Indecisions of 1789: Appendices on the Misuse of Historical Sources in Unitary Executive Theory, Fordham Law Legal Studies Research Paper No. 4359596.

December 13, 2023

Logan on Policing Emotions: What Social Psychology Can Teach Fourth Amendment Doctrine @FSUCollegeofLaw @buffalolawrev

Wayne A. Logan, Florida State University College of Law, is publishing Policing Emotions: What Social Psychology Can Teach Fourth Amendment Doctrine in volume 77 of the Buffalo Law Review.
Police officers, like the citizens they serve, often believe that they can accurately and reliably discern emotions from the faces of individuals they encounter on street patrol. An officer, for instance, might interpret a facial expression to infer that an individual is surprised by the officer’s presence, which can serve as a factor justifying a seizure based on reasonable articulable suspicion of criminal activity. Judges, for their part, often defer to the facial emotion recognition (FER) wherewithal of police when assessing the sufficiency of police assertions of reasonable suspicion. There is a major problem, however, with the accepted wisdom: it lacks empirical support. As a growing body of research shows, human faces are not like emojis or emoticons; not only is the purported connection between particular emotions and facial expressions weak, but facial expressions themselves are variously interpreted. Moreover, FER depends on multiple individualized factors such as the viewer’s age, gender, personality traits, life experiences, and emotional intelligence, and whether the viewer and viewed are of the same racial or ethnic background. Worse yet, conventional experimental studies advanced in support of FER suffer from major methodological problems, undercutting its averred accuracy and reliability. This essay aims to explode the myth of FER and urges its judicial disregard in the assessment of whether police have reasonable suspicion to detain an individual. The intervention is as timely as it is important. In the immediate term, allowing continued judicial reliance on an empirically unfounded data point raises obvious constitutional concern. Longer term, reliance on FER is problematic because it is now being combined with artificial intelligence technology, soon to likely include roboticized policing and “emotiveillance” efforts more generally. To neutralize these threats, the essay urges that, like similar pseudo-sciences of the past, such as phrenology and physiognomy, FER should be relegated to the dustbin of history, rather than serving as an accepted basis for police seizures, with all the significant personal and social harms they impose.
Download the article from SSRN at the link.

Tobia on Methodology and Innovation in Jurisprudence @kevin_tobia @kevintobia.bsky.social @GeorgetownLaw

Kevin Tobia, Georgetown University Law Center; Georgetown University Department of Philosophy, has published Methodology and Innovation in Jurisprudence at 123 Columbia Law Review 2483-2516 (2023). Here is the abstract.
Jurisprudence aims to identify and explain important features of law. To accomplish this task, what method should one employ? Elucidating Law, a tour de force in “the philosophy of legal philosophy,” develops an instructive account of how philosophers “elucidate law,” which in turn elucidates jurisprudence’s own aims and methods. This Review introduces the book, with emphasis on its discussion of methodology. Next, the Review proposes complementing methodological clarification with methodological innovation. Jurisprudence should ask some timeless questions, but its methods need not stagnate. Consider that jurisprudence has a long tradition of asserting claims about how “we” understand the law—in which “we” might refer to all people, citizens of a jurisdiction, ordinary people, legal experts, or legal officials. There are now rich empirical literatures that bear on these claims, and methods from “experimental jurisprudence” and related disciplines can assess untested assertions. Today’s jurisprudence can achieve greater rigor by complementing traditional methods with empirical ones.
Download the article from SSRN at the link.

(Reviewing Dickson, Elucidating Law, OUP, 2022).

Koppelman on Essentially Contested Histories: On Recent Efforts to Cabin the Meanings of Slavery and Disestablishment @AndrewKoppelman @NorthwesternLaw @_WayneLaw

Andrew Koppelman, Northwestern Uniersity School of Law, is pulishing Essentially Contested Histories: On Recent Efforts to Cabin the Meanings of Slavery and Disestablishment in the Wayne Law Review. Here is the abstract.
Some of the Constitution’s provisions decree that certain specific historical evils must not happen again. Such provisions generate a unique interpretive problem. The object of interpretation is not a word or a phrase, but a repudiated cluster of practices. Any construction of such provisions must offer a description of what was wrong with the original evil, so that the interpreter can decide whether the challenged action repeats that wrong. The description will inevitably be shaped by the values of the interpreter. Every historical episode is susceptible to multiple interpretations, depending on which aspects the interpreter deems salient. One danger, which happened in the past and is happening again, is that an interpreter who is untroubled by some aspects of the historical evil may improperly narrow its scope by deeming those aspects outside the prohibition. I illustrate this by focusing on two constitutional provisions, the Thirteenth Amendment’s prohibition of slavery and the First Amendment’s prohibition of establishments of religion. Each has been subjected to narrowing constructions, which focus on uncontroversial aspects of the historical wrong and then assert without further argument that they exhaust the provision’s coverage. The most recent instance of this maneuver is Justice Gorsuch’s reformulation of Establishment Clause law, cited with approval in his opinion for the Court in Kennedy v. Bremerton, which would allow previously impermissible public endorsements of specific religious beliefs. His interpretive strategy is the same one that the Court used to restrict the scope of the Thirteenth Amendment in the Civil Rights Cases, Plessy v. Ferguson, and Hodges v. United States.
Download the article from SSRN at the link.

December 11, 2023

Annual Semiotics of Law Roundtable, Keele University, July 16-18, 2024

From Mark Featherstone, Professor of Sociology, Keele University:
I am writing to draw your attention to the upcoming 24th Annual Semiotics of Law Roundtable that will be held at Keele University from 16th to 18th July, 2024.

Law in an Age of Permacrisis

‘Permacrisis’ was the word of the year in 2022. By then it had become clear that several interconnected crises had, for decades, not shown any sign of abating. On all levels - local, regional and global - crises seem to have been caught in ever-intensifying spirals. In the spheres of international relations, politics, economics, environmental policy, energy and critical resource/infrastructure, demographic evolution, culture and ideological formation, unpredictability or the sheer unravelling of consistency seem to be spreading through linkages, nodes, and interlocked networks. Reactions and remedies often contributed to the overall instability, leading to a generalised sense of perpetual, unstoppable crisis.

Economic and ecological collapse is easier to imagine than before. This begs the question as to how law operates in an era marked by such a pervasive sense of ‘permacrisis’. Can law operate in what some might perhaps call an age of near entropy? Where and how does law manifest itself in times of continuous crisis? What is the future of law? Will law have to be re-imagined, or has it been re-imagined already? Where and how? The conference invites contributions to these and related questions and themes.

For further details and information relating to registration and fees, please visit the conference website at:

https://www.keele.ac.uk/law-age-permacrisis/


Spitzer on Understanding Gun Law History After Bruen: Moving Forward by Looking Back @spitzerb @WMLawSchool

Robert J. Spitzer, SUNY Cortland; College of William & Mary School of Law, is publishing Understanding Gun Law History After Bruen: Moving Forward by Looking Back in volume 51 of the Fordham Urban Law Journal. Here is the abstract.
The Supreme Court’s 2022 Bruen Second Amendment decision has remade the criteria for judging the constitutionality of contemporary gun laws. As a consequence, every manner of modern gun law has been subject to new court challenges. Courts and lawyers are now struggling to determine whether modern challenged gun laws are “consistent with this Nation's historical tradition of firearm regulation.” My article takes Bruen at its word that American weapons law history matters as the primary basis for determining the constitutionality of modern gun laws. Therefore, this article does two things. First, I argue that a specific and sequential set of steps explains the relationship between the invention and development of various weapons and weapons technologies, their circulation in society, and subsequent governmental efforts to regulate, restrict, or prohibit those weapons in order to protect public safety and thwart crime. This relationship exists consistently throughout American history and is found to apply to three types of dangerous weapons—guns, fighting knives, and certain types of clubs and other blunt objects—that were subject to widespread, extensive, and varied regulation in the colonies, states, and localities across 300 years of American history. Second, this framework is applied through a detailed examination of weapons and weapons laws, including state restrictions on fully automatic and semiautomatic firearms in the early twentieth century; surprisingly extensive regulation of ammunition feeding devices during the same period; pre-20th century firearms technologies, incorporating an array of experimental multi-shot weapons dating back several hundred years; and historical restrictions on fighting knives (most notably the Bowie knife), blunt weapons and clubs, pistols, and trap guns. This article demonstrates that firearms and other dangerous weapons were subject to remarkably strict, consistent, and wide-ranging regulation throughout our history when they entered society, proliferated, and resulted in violence, harm, criminality, or threats to public safety and good order. This is even more remarkable given that the United States was an evolving and developing nation-state that could not claim to have reached maturity until the twentieth century. Gun ownership is as old as the country. But so are laws restricting guns and other dangerous weapons. If this history teaches anything, it is that the state has no less an abiding interest in preserving public safety today by restricting the tools that magnify violence than it did in prior centuries. Contemporary firearms restrictions are merely the latest iteration of a centuries-long tradition of weapons regulation and restriction.
Download the article from SSRN at the link.

December 7, 2023

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

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

CFP (Updated): In the Thick of Images: Law, History, and the Visual

From Laura Petersen, University of Lucerne, co-sponsor of the conference In the Thick of Images: Law, History, and the Visual, here is an updated version of the CFP and a list of the keynote speakers.


CALL FOR PAPERS
In the Thick of Images: Law, History, and the Visual 
Conference

Monday 10 + Tuesday 11 June 2024 
University of Lucerne 

“Suppose that whatever we’ve done, felt, and thought has always happened in the thick of images.” (Anand Pandian, Reel Word: An Anthropology of Creation) 

The ‘visual turn’ has long been turning in critical and cultural studies of law (see Douzinas & Nead 1999). In the past twenty-five years, a growing body of scholarship has evolved that emphasises law’s “constitutive imbrication” (Crawley 2020) with an array of visual forms, and elaborates on the ways in which images “shape and transform legal life” (Sarat et al. 2005). Weaving together an eclectic set of theories, concepts, methods and materials, such studies refuse thin readings of images as merely illustrative of law, and invite us to think more deeply about their ideological and visual operations – about the meanings they carry and make available, about their material presence and affective effects, and about the cultural-political and cultural-legal work they perform across their multiple contexts of production, circulation and reception.

Much of this scholarship focuses on the contemporary conjuncture of law and visuality. Yet law’s imbrication with the visual is not exclusive to the present; law has always lived, happened and mattered “in the thick of images”. This is the starting point for our two-day conference, which seeks to explicitly foreground historical and historicist work on law and the visual. Situated at the disciplinary crossroads of law, history, visual cultural studies, art history, film and photography studies, In the Thick of Images invites multiple viewpoints and approaches to converge on ways of negotiating the entanglements of law, history and the visual – in various contexts, scales and timeframes.

Link to the full Call for Papers and other information

Proposals due by 19 January 2024 to laura.petersen@unilu.ch 

Convenors

Steven Howe (steven.howe@unilu.ch)
Laura Petersen (laura.petersen@unilu.ch)

Nicole Schraner (nicole.schraner@unilu.ch)

 

The conference forms part of the SNSF research project: Imagining Justice: Law, Politics and Popular Visual Culture in Weimar Germany

 


Keynote speakers:


  • Valérie Hayaert (University of Warwick)
  • Desmond Manderson (Australian National University)
  • Jolene Rickard (Cornell University)
  • Frederic J. Schwartz (University College London)