The Origins of Legal Language

Peter Tiersma, Loyola Law School (Los Angeles), has published The Origins of Legal Language in the Oxford Handbook on Language and Law (L. Solan and P. Tiersma, eds., 2010). Here is the abstract.

This paper examines the origins of legal language. It begins with a discussion of language in the civil law system, which originated in Rome, was refined in Byzantium, rediscovered in Italy, codified in Prussia and France, and ultimately spread throughout most of Europe and, via colonialism, to many other parts of the world. The common law, which developed in England, was heavily influenced by Anglo-Saxon invaders, Latin-speaking missionaries, and French-speaking Normans. Its language also took root in much of the world via the British empire. Finally, we discuss what might be called mixed legal systems, and we conclude by speculating on the possible effects of globalization on the languages of law.

Download the chapter from SSRN at the link.

Telling Stories About the Founders

Tom Donnelly, Harvard Law School, has published Our Forgotten Founders: Reconstruction, Public Education, and Constitutional Heroism, at 58 Cleveland State Law Review 115 (2010). Here is the abstract.

This Article examines a set of constitutional stories that has not been the subject of focused study by legal scholars — the stories we tell our schoolchildren about the Founding and Reconstruction. These stories offer new clues about the background assumptions that elite lawyers, political leaders, and the wider public bring to bear when they consider the meaning of the Constitution. Since the early twentieth century, our leading high school textbooks have tended to praise the Founding generation and canonize certain Founding Fathers, while, at the same time, largely ignoring Reconstruction’s key players and underemphasizing the constitutional revolution these “Forgotten Founders” envisioned (and began to wage). As a result, generations of students have been left with a relatively pristine view of the Founding, while receiving (at best) a “warts-and-all” account of Reconstruction. These disparate accounts (presented for decades in our classrooms) have helped to construct a constitutional culture that reveres the Founding generation, but gives short shrift to their Reconstruction counterparts.

Download the article from SSRN at the link.

Adam Smith and the Judiciary

Robin Paul Malloy, Syracuse University College of Law, has published Adam Smith in the Courts of the United States, at 56 Loyola Law Review 33 (2010). Here is the abstract.

Be it on topics of property, contract, commerce, trade, tax, legal history, or other matters, jurisprudence in the United States often invokes economic thinking in providing a rationale for legal outcomes. Consequently, I wondered how often the appeal to economic thinking in the courts included a reference to Adam Smith, the founder of modern economics. This essay traces the citations to Adam Smith in the judicial opinions of the Federal Courts starting with the first two cases to cite Smith in 1796; 214 years ago. The essay provides a brief contextual discussion about Smith and the way in which he has been cited over the years. This is followed by a report on the full set of citations to Adam Smith in the case opinions of the Federal Courts and in the legal briefs filed in those cases.



Between the years 1796 and 2009, Adam Smith is directly referenced in 162 cases, and in legal briefs filed in 213 cases. Over time Smith is cited for different purposes. He is cited in case opinions dealing with a range of topics including: tax, trade, commerce, labor, antitrust, and private property. The way in which Smith is referenced over time also changes. In general, references to Smith shift over time as he goes from being an authoritative reference on matters of taxation to being a mere iconic punctuation point in the arguments of those seeking to promote free markets and laissez-faire.



The article offers quotations from case opinions and establishes a record of Adam Smith’s appearances in the Courts of the United States. Interestingly, 70% of the citations to Smith occur since 1970. Hopefully, the article will be a fun piece to read no matter what one’s specialized research or teaching area may be.

Download the article from SSRN at the link.

Slavery As Immigration

Rhonda V. Magee, University of San Francisco Law School, has published Slavery as Immigration? in volume 44 of the University of San Francisco Law Review (2009). Here is the abstract.

Slavery as Immigration? In this essay, the author argues that transatlantic slavery was, in significant part, an immigration system of a particularly pernicious sort – a system of forced migration immigration aimed at fulfilling the nascent country's needs for a controllable labor population, and desire for a racialized one. As such, the law and policy of chattel slavery should be viewed as perhaps the most important historical antecedent to contemporary immigration law regarding low- and unskilled labor in the United States. Following an analysis of the treatment of chattel slavery in general immigration history scholarship, and in scholarship on the history of immigration law, the author concludes that immigration law texts must include a discussion of chattel slavery that properly locates that system as a forerunner of modern immigration law and policy, and immigration scholars should devote more attention to chattel slavery. She concludes with a discussion of the broader implications of such a reframing for the American national community as a whole.

 Download the article from SSRN at the link.

New Law and the Humanities Books From Ashgate Publishing

New books available or due out soon from Ashgate Publishing:

Cathrine O. Frank, Law, Literature, and the Transmission of Culture in England, 1837-1925 (2010)

Christopher Frank, Master and Servant Law: Chartists, Trade Unions, Radical Lawyers and the Magistracy in England, 1840-1865 (2010)

Kelly Hager, Dickens and the Rise of Divorce: The Failed Marriage Plot and the Novel Tradition (2010)


Henry Ansgar Kelly, Law and Religion in Chaucer's England (2010) (Variorum Collected Studies Series; CS957)

Dennis R. Klinck, Conscience, Equity and the Court of Chancery in Early Modern England (2010)

Bridget M. Marshall, The Transatlantic Gothic Novel and the Law, 1790-1860 (January 2011)

The Nuremberg Trials in Historical and Cultural Context

Christiane Wilke, Carleton University, Department of Law, has published Reconsecrating the Temple of Justice: Invocations of Civilization and Humanity in the Nuremberg Justice Case, at 24 Canadian Journal of Law and Society 181 (2009). Here is the abstract.

The Nuremberg Trials provide the foundation for contemporary international criminal law. Yet these trials are rarely explored in their broader ideational and social context. This article examines the context and role of the concept of “civilization” as used in U.S. v Altstoetter, the 1947 trial of Nazi judges and judicial administrators at Nuremberg. I place the reference to civilization in Altstoetter within a tradition of international law that understood law and civilization as co-constitutive. The Altstoetter Court conceptualized Germany as an essentially civilized country that lapsed into barbaric and therefore lawless violence. This account helped the Court to establish the blameworthiness of the defendants’ conduct, blame the Nazi violence on lawlessness, and establish its own authority.

Download the article from SSRN at the link.

The History of Fair Use

Matthew Sag, DePaul University College of Law, has published The Pre-History of Fair Use. Here is the abstract.

This article reconsiders the history of copyright’s pivotal fair use doctrine. The history of fair use does not in fact begin with early American cases such as Folsom v. Marsh in 1841, as most accounts assume - the complete history of the fair use doctrine begins with over a century of copyright litigation in the English courts. Reviewing this ‘pre-history’ of the American fair use doctrine leads to three significant conclusions. The first is that copyright and fair use evolved together. Virtually from its inception, statutory copyright went well beyond merely mechanical acts of reproduction and was defined by the concept of fair abridgment. The second insight gained by extending our historical view is that there is in fact substantial continuity between fair abridgment in the pre-modern era and fair use in the United States today. These findings have substantial implications for copyright law today, the principal one being that fair use is central to the formulation of copyright, and not a mere exception.



The third conclusion relates to the contribution of Folsom v. Marsh itself. The pre-modern cases illustrate a half-formed notion of the derivative right: unauthorized derivatives could be enjoined to defend the market of the original work, but they did not constitute a separate market unto themselves. Folsom departs from the earlier English cases in that it recognizes derivatives as inherently valuable, not just a thing to be enjoined to defend the original work against substitution. This subtle shift is important because while the boundaries of a defensive derivative right can be ascertained with respect to the effect of the defendant’s work on the plaintiff’s original market, the boundaries of an offensive derivative right can only be determined with reference to some other limiting principle. This extension of the derivative right may well have been inevitable. It seems likely that as more and more derivatives were enjoined defensively, courts and copyright owners began to see these derivatives as part of the author’s inherent rights in relation to his creation. In other words, once copyright owners were allowed to preclude derivatives to prevent competition with their original works, they quickly grew bold enough to assert an exclusive right in derivative works for their own sake. A development which, for good or ill, bridges the gap between pre-modern and modern copyright.

Download the article from SSRN at the link.

Another Review of David Rabban's Law's History

Roy Kreitner, Harvard University Institute for Global Law and Policy, and Tel Aviv University, Buchmann Faculty of Law, has published Heroes, Anti-Heroes, and Villains, at  1 Jerusalem Review of Legal Studies 96 (2010). Here is the abstract.

This is Roy Kreitner's contribution to the symposium on David Rabban's book “Law’s History: Late Nineteenth-Century American Legal Scholarship and the Transatlantic Turn to History”.

Download the article from SSRN at the link.

A Review of David Rabban's Law's History

Ron Harris, Tel Aviv University, Buchmann Faculty of Law, has published The Politics of Historical Narratives: Comment on David Rabban’s Law’s History at 1 Jerusalem Review of Legal Studies 81 (2010). Here is the abstract.

This is Ron Harris's contribution to the symposium on David Rabban's book “Law’s History: Late Nineteenth-Century American Legal Scholarship and the Transatlantic Turn to History”.

Download the article from SSRN at the link.

Socrates

Ah, the Socratic Method, pedagogical tool beloved of law students. NOT. Angus Kennedy examines some new books devoted to the life and legacy of Socrates here, who is supposed to have annoyed those around him with that device so much that they told him to begone permanently. Well, he did some other things that annoyed his neighbors too. Notes Mr. Kennedy, "In Plato’s Meno, Socrates offends a man called Anytus by suggesting that even great men such as Themistocles and Thucydides were not capable of teaching their sons to be good. Anytus warns him to be careful, that he is ‘too ready to speak evil of men’. It was Anytus who brought the prosecution against Socrates in 399 BC, on charges of impiety and corrupting the youth, which led to Socrates’ execution."

Interpreting the Effects of Jim Crow

Brando Simeo Starkey, Harvard Law School Research Fellow; Equal Justice Society, has published Jim Crow and the Birth of Uncle Tom: Law’s Impact on Black Culture . Here is the abstract.

Uncle Tom has grown into the most injurious pejorative that blacks can hurl at one another. That it occupies such a 'lofty' status is due to segregation. During Jim Crow, law and legal institutions vehemently reflected America’s racist priorities. All three branches of the federal government subordinated blacks. State and local governments, meanwhile, disfranchised blacks and required their segregation from mainstream life. The biggest reminder to blacks of their second-class citizenship was segregation. In response, many blacks realized the need to unify to repel the onslaught of Jim Crow. Some blacks, however, might either retreat from the daunting struggle or be co-opted by the majority and become double agents hindering the race’s ability to fight American apartheid. To prevent potential turncoats, blacks needed to enforce loyalty. Many sketched the contours of acceptable behavior; that blacks must both resist their subordination and refuse enlisting for the opposition. Deserters would be denounced with the most opprobrious epithet of which blacks could conceive: Uncle Tom. This paper argues that law frequently steers and directs black culture and that it does is best seen through the community’s use of Uncle Tom in the context of segregation.

Download the paper from SSRN at the link.

Roman Law and European Culture

Reinhard Zimmermann, Max Planck Institute for Comparative and International Private Law, has published Roman Law and European Culture (Derecho Romano y Cultura Europea), at Revista de Derecho Privado no. 18, 5-35 (2010). Here is the abstract.

The European legal tradition takes its distinctive feature of the ius commune, which is rooted primarily in Roman law. This paper aims to establish its relationship and analyze, within that context, the most influential features of the ancient Roman law. It also describes the transformations in the perception of Roman law and finally asks the following question: How Roman is the current Roman law? How European is the European legal "tradition?"

Download the article from SSRN at the link. It is in Spanish.

Susan Sage Heinzelmann's "Riding the Black Ram" Is Published

From Stanford University Press:

Stanford University Press is pleased to announce the publication of Riding the Black Ram: Law, Literature, and Gender, by Susan Sage Heinzelman. Susan Sage Heinzelman is Associate Professor of English and Director of the Center for Women's and Gender Studies at the University of Texas at Austin.

Unruly women are not often represented in a good light. Whether historical, or fictional, disruptive women with their real or imagined excesses have long provided the material for literary and legal narratives. This probing new work analyzes a series of literary, legal, and historical texts to demonstrate the persistence of certain gender stereotypes.

In her 1820 adultery trial, Queen Caroline was depicted in a cartoon riding into the House of Lords on a black ram that had the face of her Italian lover. As this book reveals, a number of women, remembered largely for their insubordinate presence, have metaphorically "ridden the black ram" in the last 700 years. Heinzelman's historicized understanding of the relationship between law and literature reveals a disquieting pattern in the legal and literary representations of women and provides a new recognition of the significance of sexuality and gender in the way we narrate our world.

More information about this book may be found at http://www.sup.org/book.cgi?id=11686.

The publisher has sent me a copy of this book, and I will be publishing a review in the near future.

Native Americans in Popular Culture and the Law

andré douglas pond cummings, University of Iowa College of Law, University of Utah College of Law, and West Virginia University College of Law, has published A Shifting Wind?: Media Stereotyping of American Indians and the Law. Here is the abstract.

An accurate historical narrative of the treatment imposed upon American Indians at the hands of the United States Government reveals a sordid tale. The portrayal and stereotyping of North America’s indigenous civilizations by the United States’ popular media emulates this foul history. The U.S. legal system’s contemptuous judicial decrees and legal policies promulgated for more than two centuries testifies to the Government’s and the popular media’s hostility and historical abuse toward American Indians. Unfortunately for historical (and modern) purveyors, each of these abhorrent deeds is memorialized for the world to read and see in innumerable broken treaties, motion pictures, literary works and judicial reporters.

In recent decades, historians and scholars, both American Indian and non-native alike have skillfully documented the deceitful trail of broken promises and near annihilation. In addition, the popular U.S. media and the U.S. legal system have intersected curiously over the years in connection with a tag-team treatment of and discrimination against American Indians. The media, including print advertising, newspapers, literary works, television, online sources and motion pictures, seems to have borrowed historical stereotypical characterizations from the judiciary and U.S. government policies, and vice versa, simultaneously portraying American Indians as ferocious and savage yet simple and helpless. Proven instances of governmental abuse and discrimination, hostile portrayal and stereotyping by the media and contemptible judicial decrees are innumerable.

In very recent years, there is some evidence that the winds are shifting. Slowly and steadily, segments of the mass media seem to be trending toward a more honest historical account of U.S. history, and the portrayal of American Indians is becoming more reflective of reality and humanity. In the past decade, encouraging signs that the wind is shifting have signaled a potential sea change in the way that American Indians are presented to the United States public through the media and the law.

That said, favorite American Indian stereotypes and comfortable discriminations die hard. As the law and media stumble forward awkwardly, attempting to get it right, an assortment of U.S. contingencies, including professional sports franchises and American Universities, cling desperately to time-worn typecasts and hostile imagery.

While a veritable candelabra of options exist when attempting to describe the shameful historical treatment of American Indians, the following three brief snapshots will be presented to capture the essence of that treatment and to contemplate any further change in the curious intersection between the media and the law. The three snapshots will include a glimpse of the historical United States Government treatment of American Indians, followed by a look at the traditional stereotyping of American Indians by U.S. mass media and finally a brief examination of a few of the historically offensive judicial decrees handed down by federal judges. Thereafter an examination of the connection between the modern media and the law will be undertaken to assess whether a sea change is truly upon us.

Download the paper from SSRN at the link.

Roman Sumptuary Laws

Giuseppe Dari-Mattiacci, University of Amsterdam, Amsterdam Center for Law & Economics, and Centre for the Study of European Contract Law; Tinbergen Institute, and Anna E. Plisecka, University of Amsterdam, Amsterdam Center for Law & Economics, have published Luxury in Ancient Rome: Scope, Timing and Enforcement of Sumptuary Laws as Amsterdam Center for Law & Economics Working Paper No. 2010-03. Here is the abstract.

Between 182 BC and 18 BC, Roman lawmakers enacted a series of sumptuary laws regulating banquet expenditures. These regulations included a maximum for the number of guests and restrictions on specific foods; moreover, they were reiterated over time but were rarely enforced. Traditional explanations based on morals, protection of patrimonies and political competition do not fully account for the scope, timing and enforcement patterns of such laws. We advance and formalize a novel hypothesis, which is based on four elements: (1) luxury is a signal of wealth; (2) the senatorial class holding political power enacts sumptuary laws to restrict signaling when individuals coming from an emerging class (the equestrians) become wealthier than them; (3) enforcement of such laws would facilitate signaling of wealth and hence would be counterproductive; finally (4), the reiteration of these laws can be explained as an attempt to leverage on the expressive function of the law. The rise of sumptuary legislation occurred when the senatorial class lost economic power to the equestrians, its fall when they also lost political power to the princeps (and later the emperor). These points are discussed against the historical and legal background and presented formally.

Download the paper from SSRN at the link.

The Legal History of Citizenship

Elizabeth F. Cohen, Syracuse University, has published Jus Tempus in the Magna Carta: The Sovereignty of Time in Modern Politics and Citizenship , in PS: Political Science and Politics (2010). Here is the abstract.

A genealogy of early modern British subjecthood reveals that law based on dates and temporal durations - what I will call collectively jus tempus - creates sovereign boundaries as powerful as territorial borders or bloodlines. This concept has myriad implications for how citizenship comes to be institutionalized in modern politics. In this article, I briefly outline one route through which jus tempus became a constitutive principle within the Anglo-American tradition of citizenship and how this concept works with other principles of membership to create subtle gradations of political status beyond the binary of subject and alien. I illustrate two main points about jus tempus: first, how specific dates create sovereign boundaries among people and second, how durational time takes on an abstract value in politics that allows certain kinds of attributes, actions, and relationships to be translated into rights-bearing political statuses. I conclude with some remarks about how, once established, the principle of jus tempus is applied in a diverse array of political contexts.

Download the article from SSRN at the link.

The McCarthy Hearings

The New York Times reminds us that on this day in 1954, attorney Joseph Welch faced down Wisconsin Senator Joseph McCarthy. On behalf on his young colleague Fred Fisher, whom McCarthy had assailed indirectly as a Communist because he was a member of the National Lawyers Guild, Welch stormed,"[U]ntil this moment, Senator, I think I never really gauged your cruelty or your recklessness." According to the Times, he went on, "If there is a God in heaven, it [the attack on Mr. Fisher] will do neither you nor your cause any good." Members of the audience applauded Welch.

Welch later went on to be cast as the judge in Otto Preminger's film Anatomy of a Murder, opposite Jimmy Stewart as Paul Biegler, Ben Gazzara as Frederick Manion, and Lee Remick as Laura Manion. He also was a guest host on the Kraft Television Theatre and had some other hosting roles on television.

Race and Legal History at the University of Texas

Thomas D. Russell, University of Denver College of Law, has published ‘Keep the Negroes Out of Most Classes Where There Are a Large Number of Girls’: The Unseen Power of the Ku Klux Klan and Standardized Testing at The University of Texas, 1899-1999, as University of Denver Legal Studies Research Paper No. 10-14. Here is the abstract.

The paper’s title is a quotation from The University of Texas registrar nine days after the decision in Brown v. Board of Education. This paper examines 20th-century techniques of racial domination at The University of Texas by crosscutting two narratives.

The first narrative that the paper presents is one of the development of bureaucratic or institutional forms of racial exclusion. The paper describes the university’s efforts to limit the application of the Brown v. Board of Education.

In the immediate years after the United States Supreme Court’s decision in Brown v. Board of Education, The University of Texas developed and instituted entrance exams that university officials knew would exclude a disproportionate number of African-American applicants. Publicly, the university presented the testing as race-neutral. The university stalled post-Brown integration until the exclusionary admissions testing was in place.

An explicit concern of the university in seeking to exclude African-American students during the 1950s was a racialized sexual concern about the university’s white women.

The second narrative is the story of William Stewart Simkins, a law professor at The University of Texas from 1899 to 1929. Professor Simkins helped to organize the Ku Klux Klan in Florida at the conclusion of the American Civil War, and he advocated his Klan past to Texas students.

Like the university registrar during the 1950s, Professor Simkins was explicitly concerned with the sexual defense of white women. Relying upon the analysis of historian Grace Elizabeth Hale, the paper links Professor Simkins’s advocacy of the Klan to the early 20th-century history of lynching and white supremacist violence.

During the 1950s, the memory and history of Professor Simkins supported the university’s resistance to integration. As the university faced pressure to admit African-American students, the university’s faculty council voted to name a dormitory after the Klansman and law professor. The dormitory carries his name to the present day. During this time period, alumni also presented the law school with a portrait of Professor Simkins. Portraits and a bust of Professor Simkins occupied prominent positions within the law school through the 1990s.

The sources for the paper are drawn largely from primary materials of the university’s archives, including the papers of the university’s Board of Regents, Chancellor, President, and faculty committees. The author completed this research during the 1990s while a member of The University of Texas School of Law faculty

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Download the paper from SSRN at the link.

Update: Professor Russell notes coverage of the issue, and discussion of his work, in the Austin American-Statesman, here.

A Little Light Reading

End of exam grading (or maybe just lazy mid-spring reading): from Malcolm Gladwell, in the New Yorker, musings on the story of a man who never was, via a review of a new book on the subject, Ben Macintyre's Operation Mincemeat; buckle that swash! with Allan Massie, as he considers the real value of historical fiction in a piece for Standpoint. Survey the battle between print and ebook with Ken Auletta (again for the New Yorker)--do we value electronic less than paper? I wonder if that's the mindset that creates so much piracy (ah! back to swashbuckling). Then check out a new evaluation of the young Alexis de Tocqueville's discovery of a young United States--a review of Leo Damrosch's Tocqueville's Discovery of America by Sean Wilentz for The American Prospect.

A Review of William Domnarski's "Federal Judges Revealed"

Chad M. Oldfather, Marquette University Law School, has published "Oral History and the Study of the Judiciary," in volume 78 of George Washington Law Review Arguendo (2010). Here is the abstract.

This essay, which is a review of William Domnarski’s “Federal Judges Revealed” (Oxford University Press, 2008), explores the usefulness of oral history as a vehicle for understanding the judiciary. “Federal Judges Revealed” presents the insights gleaned from a study of over 100 oral histories given by Article III judges, ranging across the span of the judges’ lives. The essay first explores the methodological strengths and weaknesses of oral history as a general matter, and then further develops the analysis through a review of three oral histories given by the late Seventh Circuit Judge Thomas Fairchild. The essay then turns specifically to Domnarski’s book, outlining the ways in which it contributes to our understanding of judges and the judiciary.