Rose on Property in the Merchant of Venice

Carol M. Rose, University of Arizona James E. Rogers College of Law, has posted Property and Literature: the View From Shakespeare’s Venice, which is forthcoming in The Elgar Concise Encyclopedia of Law and Literature, ed. Robert Spoo and Simon Stern (2024).

Merchant of Venice (1955) (NYPL)

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.

--Dan Ernst

Literary–Legal Imagining: An Early Modern Workshop

[We have the following announcement.  DRE.]

Literary–Legal 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 [the Centre for Early Modern Studies] 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.

Current doctoral students and recently doctored ECRs will present examples from their work-in-progress, stimulating discussion of how early modernists might approach the legal–literary interface. It will showcase the vibrancy of current work in the law and literature movement and highlight new directions for research in the interstices between these two disciplines.

Speakers: Alex Laar (Oxford); Jonathan Powell (Leiden); Dan Haywood (Oxford); Herin Han (Oxford); and Jake Wiseman (UCL). A keynote will be given by Lotte Fikkers (Leiden), with Lorna Hutson (Oxford) acting as a respondent.

The workshop will be in two parts. In the morning session, Alex Laar will give a paper on ‘Sir Thomas Smith’s Legal Annotations’ at New College Library. At this session, there will be an opportunity to examine annotations made in sixteenth–century lawbooks in New College’s Special Collections.

After lunch at St John’s, there will be two panels and a keynote, with breaks between and time for Q & A at each. The first panel, on ‘Gender, Scripture and Legal Imagining’ will feature papers by Jake Wiseman and Herin Han. The second, on ‘Common Law and Literary Genre’ will feature papers by Dan Haywood and Jonathan Powell. Finally, Lotte Fikkers will give a keynote paper on early modern women’s life-writing in law and literature, with a response from Lorna Hutson and a round-up discussion.

The workshop will conclude with a drinks reception at St John’s.

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.

Timetable and key information [after the jump]:

Weekend Roundup

• Via the New Books Network, an interview with Robert Post (Yale Law School) on The Taft Court (10): Making Law for a Divided Nation, 1921-1930.

• Over at JOTWELL, Mary Ziegler (UC Davis School of Law) has posted an admiring review of Nicholas Syrett's The Trials of Madame Restell: Nineteenth-Century America’s Most Famous Female Physician and the Campaign to Make Abortion a Crime (2023). 
  

• John Q. Barrett, St. Johns Law, delivered “Nuremberg Laws and Nuremberg Trials: Abuses and Uses, and Hopes, Regarding the Rule of Law,” at Touro Law Center's commemoration of International Holocaust Remembrance Day (YouTube).
  

• 
  Owen Fiss, Yale Law School, discusses his book, Why We Vote, including "his work with the DOJ in southern states and his time as a clerk for then-U.S. Supreme Court Justice Thurgood Marshall (then on the 2nd U.S. Circuit Court of Appeals in New York) and then-Justice William J. Brennan Jr." on the ABAJ's Modern Law Library Podcast.
  

• Jack Rakove discusses The Constitution, Trump, and the Struggles of U.S. Courts to Interpret History with Rich Ford and Pam Karlin on the Stanford Legal Podcast.

• William A. Harris, Director of the Franklin D. Roosevelt Presidential Library and Museum, will discuss the Library’s special exhibit, “Black Americans, Civil Rights, and the Roosevelts, 1932-1962" in an event live-streamed on the White House Historical Association's Facebook page starting at 5:30 pm ET on Tuesday, February 6  (More).
  

• Katherine Hobbs on Wilkie Collins, "The Sensation Novelist Who Exposed the Plight of Victorian Women" (Smithsonian).
  

• A thread on a recent dispute between historians of political thought and of international law by Daragh Grant.  H/t: Christian Burset, who notes that, while it focuses "most immediately on the tension between legal and intellectual historians from Cambridge," it has broader implications for how these disciplines relate to each other." 
  

• Did you know of the interactive websites of Leigh Bienen, Northwestern University, on Chicago history, including homicides and Florence Kelly?  (Infodocket)
  

• ICYMI, Trump v. Anderson Edition.  Harvard Magazine on the Professors Blight, Faust and Lepore's amicus brief.  Blight and Lepore discuss the case with NPR's Steve Inskeep (NPR).  The National Constitution Center on Congress and the disqualification of Victor Berger under the 14th Amendment (NCC).  Scalia, J., thought Presidents were "officers of the United States" (Lawfare). Lawrence O'Donnell on the historians' brief (MSNBC).  Sean Wilentz on the Case for Disqualification (NYRB).
  

• Update: Manisha Sinha on her amicus brief on Dahlia Lithwick's Amicus podcast.
  

 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

 

Wang's "Making of Felony Procedure in Middle English Literature"

Elise Wang, California State University, Fullerton, has published The Making of Felony Procedure in Middle English Literature in the Law and literature series at Oxford University Press:

The Making of Felony Procedure in Middle English Literature explores the literary inheritance of criminal procedure in thirteenth to fifteenth century English law, focusing on felony, the gravest common law offense. Most scholarship in medieval law and literature has focused on statute and theory, drawing from the instantiating texts of English law: acts of Parliament, judicial treatises, the Magna Carta. But those whose job it was to write about the law rarely wrote about felony. Its definition was left to its practice--from investigation to conviction--and that procedure fell to local communities who were generally untrained in the law. Left with many practical and ethical questions and few legal answers, they turned to cultural ones, archived in sermons they had heard, plays they had seen, and poetry they knew. This book reads the documents of criminal procedure--coroners' reports, plea rolls, and gaol delivery records--alongside literary scenes of investigation, interrogation, and witnessing to tell a new intellectual history of criminal procedure's beginnings.

The chapters of The Making of Felony Procedure guide the reader through the steps of a felony prosecution, from act to conviction, examining the questions local communities faced at each step. What evidence should be prioritized in a death investigation? Should the accused consider narrative satisfaction when building his plea? What are the dangers of a witnessing system that depends so heavily on a few "oathworthy" men? What can a jury do if the accused's guilt seems partial or complex? And what if the defendant-for whatever reason--refuses to participate in this new, still--delicate system of justice? The book argues that answers they found, and the sources that informed them, created the system that became modern criminal procedure. The epilogue offers some thoughts about the resilience and incoherence of the concept of felony, from the start of the jury trial to the present day.

The TOC is here.

--Dan Ernst

Cracow Studies of Constitutional and Legal History

We're grateful to Maksymilian Del Mar, Queen Mary University of London, for drawing our attention to the online repository of papers, Cracow Studies of Constitutional and Legal History?  Those of us who lack Polish might still be interested in papers posted there in English, including James Gordley's Betrayal of the French Civil Code: A Tragedy in Three Acts and Professor Del Mar’s Animating the Past: History-Making, Memory-Making, Law-Making:

This paper examines certain history-making and memory-making practices that allow us to see how the past may be animated. These practices are: first, the Ancient Greek sophistic arts, as exemplified by Gorgias’s Encomium of Helen, and as revived, in dialogue form, in Renaissance humanism; and second, Ancient Greek, Ancient Roman, and medieval memory arts, with particular attention to the composite generative imagery of those arts. Animating the past – as these practices of history-making and memory-making do – is of great epistemic and political value to communities: it enables acts of argument and judgement, and, more generally, it is vital for vibrant democracies. The paper signals, albeit only briefly, how these practices are also intertwined with legal history, and in particular the history of legal reasoning, suggesting some ways forward, in future work, for investigating the entangled histories of history-making, memory-making, and law-making.

--Dan Ernst

Howcroft's "Dickens and His Lawyers"

Now available for preorder from Talbot Publishing: Dickens and His Lawyers, by Paul Howcroft,  a retired English solicitor advocate who specialized in civil litigation:

The life and works of Charles Dickens were permeated by lawyers and the legal system. As a boy, he endured his father's imprisonment for debt. At 17, he became a solicitors' clerk. At 19, he became a court reporter and later a parliamentary reporter. As a successful author, he engaged in litigation to protect his copyright and campaigned for law reform. He had numerous friends and acquaintances in the legal world and, near the end of his life, his son Henry chose to follow a career at the bar. Most of Dickens' novels have legal themes and lawyers that are usually portrayed with his dark and ironic humour. Dickens' personal involvement and fictional creations within the legal world are drawn together and put into context by an author who has spent a career practicing as a lawyer in central London. He brings an in-depth knowledge and experience of a legal world that still reflects the one known to Dickens. This includes its lawyers, clerks, judges, courts, offices and ancient inns of court. This book is partly biographical and partly a study of the Victorian legal world based on the many descriptive extracts from the novels. The legal characters are examined in detail with extensive quoted passages, providing an entertaining anthology and a useful work of reference.

--Dan Ernst

Stern on Blackstone's Colon and Trollope's Dash (Typographically Speaking)

Simon Stern, University of Toronto Faculty of Law, has posted Blackstone’s Page and Trollope’s Jurisprudence: From Doctrine to Fiction, which will appear in A History of Punctuation in English Literature, ed. Elizabeth M. Bonapfel, Mark Faulkner, Jeffrey Gutierrez, and John Lennard  (Cambridge University Press, 2024):

This book chapter explores connections between law and literature by attending to print format, page layout, and typography. It considers William Blackstone’s use of the colon in his Commentaries on the Laws of England (1765-69), showing how he exploits the sign as a means of achieving the balance, rationality, and clarity that he seeks to attribute to the common law more generally. The chapter then turns to Anthony Trollope’s The Eustace Diamonds (1873). Chapter 25 provides Mr. Dove’s opinion letter as to the legal status of the diamonds that drive the plot. Trollope noted in his autobiography that this chapter was composed by the barrister Charles Merewether. What has not been recognized is that Merewether transcribed most of the letter from a leading work on inheritance and estate law, A Treatise on the Law of Executors and Administrators by Edward Vaughan Williams. It is hard to tell whether Trollope or Merewether (or both) were responsible for the differences in wording (though some are likely to be Trollope’s). However, the letter also features a very Trollopean use of the dash to signal hesitation and temporization, generally at Mr. Dove’s expense. These examples from Blackstone and Trollope show how the conjunction of the legal and the literary may present distinctive typographical features, in addition to more frequently studied features involving legal norms, analytical styles, and doctrinal questions.

--Dan Ernst

Steinberg's "Law and Mimesis in Boccaccio's Decameron"

Justin Steinberg, University of Chicago, has published Law and Mimesis in Boccaccio's Decameron: Realism on Trial (Cambridge University Press):

In Boccaccio's time, the Italian city-state began to take on a much more proactive role in prosecuting crime – one which superseded a largely communitarian, private approach. The emergence of the state-sponsored inquisitorial trial indeed haunts the legal proceedings staged in the Decameron. How, Justin Steinberg asks, does this significant juridical shift alter our perspective on Boccaccio's much-touted realism and literary self-consciousness? What can it tell us about how he views his predecessor, Dante: perhaps the world's most powerful inquisitorial judge? And to what extent does the Decameron shed light on the enduring role of verisimilitude and truth-seeming in our current legal system? The author explores these and other literary, philosophical, and ethical questions that Boccaccio raises in the Decameron's numerous trials. The book will appeal to scholars and students of medieval and early modern studies, literary theory and legal history.

--Dan Ernst

McFarlin on Mark Twain and Mary Ann Cord

Timothy McFarlin, Samford University Cumberland School of Law, has posted three papers, one coauthored, about Mark Twain and Mary Ann Cord, a freedwoman whose story Twain told in an article in The Atlantic.  As the abstract for one of the articles explains, they address the questions:

Did Mark Twain and the Atlantic infringe a copyright belonging to Mary Ann Cord in the telling of how enslavers tore her family apart and how her son returned years later, as a Union soldier, to liberate her from bondage? If so, could that long-ignored infringement be remedied today?

In answering those questions, Professor McFarlin writes, the articles provide

wide-ranging insights into how the doctrines of consent, estoppel, laches, abandonment, adverse possession, escheat, and the statute of limitations apply in copyright law. Cord's case—nearly a century-and-a-half-old but examined for the first time in this project—can also help chart a course for how to address other longstanding wrongs in intellectual property and beyond. This includes those raised in recent lawsuits against Harvard for its exploitation of enslaved people's images and Tulsa for the 1921 race massacre on Black Wall Street.

The first article, A Copyright Ignored: Mark Twain, Mary Ann Cord, and the Meaning of Authorship, is forthcoming in the Journal of the Copyright Society of the U.S.A.  The second, A Copyright Restored: Mark Twain, Mary Ann Cord, and How to Right a Longstanding Wrong, appears in the Wisconsin Law Review.  The third article, coauthored with his Samford Law colleague Alyssa A. DiRusso, is Identity Appropriation and Wealth Transfer: Twain, Cord, and the Post-Mortem Right of Publicity.

--Dan Ernst

Raffield's "Shakespeare's Strangers and English Law"

Paul Raffield, University of Warwick, has published Shakespeare's Strangers and English Law (Hart/Bloomsbury):

Through analysis of 5 plays by Shakespeare, Paul Raffield examines what it meant to be a 'stranger' to English law in the late Elizabethan and early Jacobean period. The numbers of strangers increased dramatically in the late sixteenth century, as refugees fled religious persecution in continental Europe and sought sanctuary in Protestant England.

In the context of this book, strangers are not only persons ethnically or racially different from their English counterparts, be they immigrants, refugees, or visitors. The term also includes those who transgress or are simply excluded by their status from established legal norms by virtue of their faith, sexuality, or mode of employment.

Each chapter investigates a particular category of 'stranger'. Topics include the treatment of actors in late Elizabethan England and the punishment of 'counterfeits' (Measure for Measure); the standing of refugees under English law and the reception of these people by the indigenous population (The Comedy of Errors); the establishment of 'Troynovant' as an international trading centre on the banks of the Thames (Troilus and Cressida); the role of law and the state in determining the rights of citizens and aliens (The Merchant of Venice); and the disenfranchised, estranged position of the citizen in a dysfunctional society and an acephalous realm (King Lear).

--Dan Ernst

Stern on Mansfield and Burrow's Law Reports

Simon Stern, University of Toronto Faculty of Law, has posted Mansfield, Burrow, and the Reformulation of the Legal Decision, which is forthcoming in British Law and Literature in the Long Eighteenth Century, ed. Melissa Ganz (Cambridge University Press):

Lord Mansfield (NYPL)

Whereas scholarship on the role of precedents and precedential reasoning in law has tended to focus on questions concerning a commitment to stare decisis, and the nature of analogy and justification, this discussion focuses on rhetorical and formal features of legal opinions, such that they present themselves as eligible for use as precedents. A judge’s deliberate effort to create a precedent manifests a distinctive conception of the judicial role—a conception that carries with it a raft of assumptions about the law’s role in guiding behavior, the public’s access to judicial decisions, and judges’ ability to understand and anticipate the typical person’s response (such that the proposed solution can be expected to achieve its goal). Lord Mansfield, Chief Justice of the King’s Bench from 1756 to 1788, used a range of rhetorical and formal features to indicate that he was changing the law and to signal that a given decision should govern future cases. These include express rejection of earlier cases, careful articulation of the holding in a prominent place to enable its future use, and more explicit presentation of the facts than many of his precursors and contemporaries. His law reporter, James Burrow, credited as the creator of the headnote, complemented these efforts through his use of typography and page layout. Burrow’s ideas about clearer, fuller, and more focused reporting of legal decisions probably owed a considerable amount to his longstanding involvement with the Royal Society, whose published Transactions exhibit a series of generic changes in the first half of the eighteenth century, anticipating in some respects those that Burrow would adopt.

--Dan Ernst

CFP: Celebrating Women in Legal History

 [We have the following CFP.  DRE]

Selden's Sister invites abstracts for the Symposium, “Celebrating Women in Legal History: The Lives and Legacies of Early Women Legal Historians,” The University of Liverpool School of Law and Social Justice, 1st September 2023.

This one-day hybrid symposium aims to celebrate the contributions of women to early legal historical scholarship, to commemorate the achievements of under-appreciated figures in legal history, and to assess their contributions in light of present understandings of the discipline. We particularly encourage papers that engage with the work of nineteenth and twentieth-century researchers.

Papers might consider (but are not restricted to): 

• The work of particular women, or groups of women, whose research significantly impacted legal, constitutional, or administrative history.
  

• Current research projects that make extensive use of the work of one or multiple early women legal historians.
  

• Biographical accounts of women who undertook legal historical research in the nineteenth and twentieth centuries.
  

• Historiographical accounts of areas of legal history that have been significantly developed by women scholars.
  

• Accounts of other contributions made by women to early legal historical scholarship, for example as patrons, librarians, editors, or typists.  
  

• Fictional or artistic accounts of women in legal history

Abstracts are welcomed from scholars of all genders, disciplines, and career stages. Delegates will be able to present their papers in-person or online. There is a limited amount of funding for travel within the UK and accommodation expenses, priority for which will be given to postgraduate and early-career scholars.

Please submit any queries and abstracts of no more than 300 words to seldenssister@gmail.com by Friday 21st April 2023.

Selden's Sister are a collaborative body of legal historians across multiple UKHE institutions. We seek to champion the work of contemporary female legal historians, and highlight past contributions of women to legal history.

Walker on Del Mar's "Artefacts of Legal Inquiry"

In the Netherlands Journal of Legal Philosophy, Greg Walker, Regius Professor of Rhetoric and English Literature at the University of Edinburgh, has published a very thoughtful assessment, from “a literary perspective,” of Maksymilian Del Mar’s Artefacts of Legal Inquiry: The Value of Imagination in Adjudication (Hart, 2020).  It commences:

Maksymilian Del Mar’s ground-breaking monograph, Artefacts of Legal Inquiry: The Value of Imagination in Adjudication (hereafter Artefacts) offers a rich, multi-faceted account of what happens when judges examine the submissions of advocates and decide how the English common law should be applied in particular cases. Based on voracious reading in, and thinking through, the principles and practises of English common law, European philosophy, and global literary studies, it is a book which only someone trained and acculturated in all three disciplines could produce. It is demonstrably a tour de force of up-to-the-minute interdisciplinary scholarship.

But what, it might be asked, does a book that offers a detailed, case-specific account of the linguistic and cognitive dimensions of judicial inquiry in the field of twentieth-century common law practise have to interest a scholar of sixteenth-century literature and politics? The answer, it turns out, is a great deal, not least because many of the roots of both modern legal conventions and early Tudor literature, deep and long-lasting in the first case, relatively newly formed and close to the surface in the second, can be traced to the legal training, the moots and disputations of the early-modern Inns of Court, an institution in which both Del Mar and I have an abiding scholarly interest. But, more generally, what is not to like for a literary scholar in a book that talks about genres, figures, metaphors, audiences and performances, scenarios, figures and tropes, and which discusses the literariness and narrativity of inquiry, and its ‘poetic character’?

More.

---DRE

GLOSSAE 19 (2022)

Volume 19 (2022) of GLOSSEA: European Journal of Legal History is now on-line.  Its editor, Professor Aniceto Masferre, Legal History & Comparative Law, Faculty of Law, University of Valencia, tells us that its editorial board welcomes articles written in English dealing with legal history, no matter their geographical and chronological context .  Submissions are through its website.  The journal is is indexed in SCOPUS, SJR-2019 is 0.111, Q4 on Law & History and available through such the databases as SCOPUS, HEINONLINE-Law Journal Library, Directory of Research Journals Indexing (DRJI), DIALNET, and WorldCat.

--Dan Ernst

Yovel on Renaissance Drama's Lessons for Lawyers

Jonathan Yovel, University of Haifa Faculty of Law, has posted What Can Lawyers Learn from Renaissance Drama?

Sampson Bringing Down the Temple (NYPL)

What can lawyers, who are typically engaged in challenges of persuasion across the entire spectrum of practice, learn from the use of normative language in literature, particularly drama? Normative -- and specifically legal -- language offers parties shared vocabularies for forming and organizing disputes. It mediates grievances, shapes positions, and restricts the expression of legitimate argument. While it does so in legal settings, the reach of legal language extends beyond the law. Legal and normative languages are restrictive and generative: like grammar, they restrict valid modes of expression while inviting speakers to challenge, explore, expand and create new ones. Normative language is relevant to argument since it responds to the latter's need to bridge different points of view through a commitment to effective communication. Absent a shared basis of discourse ethics and the recognition it entails, talk deteriorates to linguistic quarrel and a struggle for domination.

The present study looks at the creative and restrictive roles of legal and normative language in two central dramas of the renaissance, that present distinctive and diverse approaches to normativity and the use of legal language: Bradamante (1582) by Robert Garnier (who was also a high ranking judge), and John Milton’s passionately personal work, Samson Agonistes (1671). While The latter abounds with legal metaphors and structures, the former lacks them almost entirely. The article explores the effects of this variance and offers a systematic treatment of key elements of discourse ethics and their role in persuasion and the construction of dispute.

--Dan Ernst

Virtual Launch of a Special Issue: Rethinking Chaucer and Cecily Chaumpaigne

After a content warning that the event would "discuss sensitive and potentially triggering topics including sexual assault," the National Archives of the United Kingdom posted the following announcement of and registration for a virtual launch of a special issue of the Chaucer Review, entitled Geoffrey Chaucer and Cecily Chaumpaigne: Rethinking the Record:

NYPL

Few medieval records have received as much attention from literary scholars as a group of documents dating from May to July 1380 that involve Geoffrey Chaucer and Cecily Chaumpaigne, the daughter of a London baker. At the heart of this group of records is a quitclaim of May 4, enrolled in the Close Rolls of the English Chancery, releasing Chaucer from “all manner of actions related to my raptus”. The word raptus, which in legal contexts can denote “rape,” “abduction,” and much of the spectrum lying between these terms, has challenged Chaucer scholars ever since Frederick J. Furnivall announced this find in 1873. The matter was given significant new impetus in 1993, when Christopher Cannon discovered a second quitclaim by Chaumpaigne – with the word raptus removed – enrolled in the plea rolls of the Court of King’s Bench a few days after the first. Cannon’s discovery has energised foundational strands of Chaucer studies, in particular feminist scholarship, over the last thirty years, but in this time no new documentary evidence has come to light.

Now, new research into the medieval legal collections at The National Archives has uncovered two new life-records relating to the dispute of 1380 – including evidence of the original legal accusations brought against the poet – which offer a radically different understanding of the documentary evidence

More.

--Dan Ernst

Peters's "Law as Performance"

Julie Stone Peters, the H. Gordon Garbedian Professor of English and Comparative Literature at Columbia University, has published Law as Performance: Theatricality, Spectatorship, and the Making of Law in Ancient, Medieval, and Early Modern Europe (Oxford University Press):

Tirades against legal theatrics are nearly as old as law itself, and yet so is the age-old claim that law must not merely be done, but be “seen to be done.” Law as Performance traces the history of legal performance and spectatorship through the early modern period. Viewing law as the product not merely of edicts or doctrines but of expressive action, it investigates the performances that literally created law: in civic arenas, courtrooms, judges’ chambers, marketplaces, scaffolds, and streets. In so doing, it recovers a long, rich, and largely overlooked tradition of jurisprudential thought about law as a performance practice. This tradition not only generated an elaborate poetics and politics of legal performance. It provided western jurisprudence with a set of constitutive norms that, in working to distinguish law from theatrics, defined the very nature of law. In a crucial opposition, law stood for cool deliberation, by-the-book rules, and sovereign discipline. Theatre stood for deceptive artifice, entertainment, histrionics, melodrama. And yet legal performance, even at its most theatrical, also appeared fundamental to law’s realization: a central mechanism for shaping legal subjects, key to persuasion, essential to deterrence, indispensable to law’s power—as it still does today.

Here are some endorsements:

“In this extraordinarily detailed study, Peters establishes the symbiotic relationship between law’s desire to inhabit a cool center and the inevitable eruption of eloquence and emotion in the service of causes both noble and savage. A fine achievement.” -Stanley Fish, FIU College of Law

“Peters pursues the puzzle of law’s vividae rationes with her characteristic erudition, analytic acuity and verbal verve. Exhaustive and meticulous, Law as Performance brilliantly transforms the cold gray face of the jurist into the terpsichorean figure of justice being done.” -Peter Goodrich, Cardozo Law School

“Rich anecdotal detail enlivens nearly every page.” -William Chester Jordan, Princeton University

“This volume is a treasure trove of ideas and images.” -Judith Resnik, Yale University 

--Dan Ernst

Legal & Literary Perspectives on Fox-hunting

Ross Davies's edited work, Regulation & Imagination: Legal & Literary Perspectives on Fox-hunting, is now out from Green Bag Press:

This is our first try at an odd mode of legal scholarship: the coffee-table treatise. It is
handsome enough to merit display (many nice pictures, and maps), and scholarly enough to merit study (many eloquent experts).

The story at the center of the book — Arthur Conan Doyle's The King of the Foxes — is both an exciting tale and a provocative prompt for discussion of law and literature affecting, and affected by, fox-hunting.

Jennifer L. Behrens, Duke University School of Law, J. Michael Goodson Law Library, has separately posted her chapter from the volume, On the Scent: A History of 'The King of the Foxes' Autograph Manuscript:

Frank Hogan (LC)

The autograph manuscript of Sir Arthur Conan Doyle's 1898 short story "The King of the Foxes" now resides in the Dartmouth College Library. While the complete provenance of the manuscript remains elusive, bookplates and notations provide enough information to sketch an approximate timeline of its travels and a brief biography of several holders, including legendary attorney and former American Bar Association president Frank Hogan (1877-1944), the founder of law firm Hogan & Hartson (now Hogan Lovells). 

--Dan Ernst

Jouet on Camus's (and Amsterdam's) Influence on Furman

Mugambi Jouet, McGill Faculty of Law, has posted A Lost Chapter in Death Penalty History: Furman v. Georgia, Albert Camus, and the Normative Challenge to Capital Punishment, which is forthcoming in the American Journal of Criminal Law:

Overlooked historical sources call into question the standard narrative that the Supreme Court’s landmark decision in Furman v. Georgia (1972), which temporarily abolished the death penalty, reflected a challenge to its arbitrary, capricious, and discriminatory application. This Article examines materials that scholars have neglected, including the main brief in Aikens v. California, a companion case to Furman that presented the fundamental constitutional claim: the death penalty is inherently cruel and unusual.

Aikens was largely forgotten to history after it became moot, leaving Furman as the main case before the Court. The Aikens brief’s humanistic claims and rhetoric are at odds with the widespread idea that Furman was a case about administrative or procedural problems with capital punishment. This is truer of the Furman decision itself than of the way the case was litigated. Depicting any execution as “barbarity,” as an “atavistic horror,” the Aikens brief marshaled an argument that has garnered much less traction in modern America than Europe: the death penalty is an affront to human dignity. Yet the transatlantic divergence in framing abolitionism was not always as pronounced as it came to be in Furman’s aftermath. Since the Enlightenment, American and European abolitionists had long emphasized normative arguments against capital punishment, thereby revealing why they played a central role in Aikens-Furman.

Strikingly, the Aikens brief insistently quoted a European figure whose role in this seminal Supreme Court case has received no attention: Albert Camus. “Reflections on the Guillotine,” Camus’s denunciation of the death penalty’s inhumanity, is among the sources prominently featured in the Aikens-Furman briefs. The architect of this strategy was Anthony Amsterdam, a famed litigator. Subsequent generations of American abolitionists have placed less weight on humanistic objections to executions, instead stressing procedural and administrative claims. This shift has obscured how a lost chapter in death penalty history unfolded.

These events are key to understanding the evolution of capital punishment, from its resurgence in the late twentieth century to its present decline as the number of executions nears record lows. On Furman’s fiftieth anniversary, the Article offers another window into the past as scholars anticipate a future constitutional challenge to the death penalty in one or two generations. 

--Dan Ernst

Widener on "Legal Books"

Michael Widener has published From Law Book to Legal Book: The Origin of a Species” is now out, open access, in volume 29 of Rechtsgeschichte Rg, the journal of the Max Planck Institute for Legal History:

This article responds to the question posed in the title of the 18 June 2020 workshop of the Max Planck Institute for European Legal History: “What is a Legal Book? Crossing Perspectives between Legal History and Book History.” Bridging the gap between legal history and book history requires a broader conception of legal literature, one that the term “legal book” captures more accurately than the narrower “law book.” The field of legal history has begun to take greater interest in legal books as social and cultural phenomena, as objects of commerce and as artifacts. The article develops a definition of “legal book” using illustrations of law books that are taken from the books themselves, including allegorical images, author portraits, and depictions of lawyers at work. These images highlight the book’s function in law as symbol, text, and artifact. The article concludes by pointing to opportunities for collecting, research, and teaching that the broader definition of “legal book” presents for curators and the historians they serve.

--Dan Ernst