July 13, 2017

Mikhail on The Definition of "Emolument" In English Language and Legal Dictionaries, 1523-1806 @_John_Mikhail

John Mikhail, Georgetown University Law Center, has published The Definition of 'Emolument' in English Language and Legal Dictionaries, 1523-1806. Here is the abstract.
In its motion to dismiss in CREW et al. v. Trump, the Department of Justice (DOJ) defines the word “emolument” as “profit arising from office or employ.” DOJ claims that this “original understanding” of “emolument” is both grounded in “contemporaneous dictionary definitions” and justifies an “office-and-employment-specific construction” of that term. On this basis, it argues that the Emoluments Clauses of the Constitution “do not prohibit any company in which the President has any financial interest from doing business with any foreign, federal, or state instrumentality.” Unfortunately, DOJ’s historical definition of “emolument” is inaccurate, unrepresentative, and misleading. Particularly because the government may seek to utilize its flawed definition in subsequent court filings, this Article seeks to correct the historical record. It does so based on a comprehensive study of how “emolument” is defined in English language dictionaries published from 1604 to 1806, as well as in common law dictionaries published between 1523 and 1792. Among other things, the Article demonstrates that every English dictionary definition of “emolument” from 1604 to 1806 relies on one or more of the elements of the broad definition DOJ rejects in its brief: “profit,” “advantage,” “gain,” or “benefit.” Furthermore, over 92% of these dictionaries define “emolument” exclusively in these terms, with no reference to “office” or “employment.” By contrast, DOJ’s preferred definition — “profit arising from office or employ” — appears in less than 8% of these dictionaries. Moreover, even these outlier dictionaries always include “gain, or advantage” in their definitions, a fact obscured by DOJ’s selective quotation of only one part of its favored definition from Barclay (1774). The impression DOJ creates in its brief by contrasting four historical definitions of “emolument” — two broad and two narrow — is, therefore, highly misleading. The suggestion that “emolument” was a legal term of art at the founding, with a sharply circumscribed “office-and-employment-specific” meaning, is also inconsistent with the historical record. A vast quantity of evidence already available in the public domain suggests that the founding generation used the word “emolument” in broad variety of contexts, including private commercial transactions. This Article adds to that emerging historical consensus by documenting that none of the most significant common law dictionaries published from 1523 to 1792 even includes “emolument” in its list of defined terms. In fact, this term is mainly used in these legal dictionaries to define other, less familiar words and concepts. These findings reinforce the conclusion that “emolument” was not a term of art at the founding with a highly restricted meaning. Finally, the Article calls attention to the fact that the government’s dictionary-based argument is flawed in another, more fundamental respect. Little or no evidence indicates that the two historical dictionaries — Barclay (1774) and Trusler (1766) — on which DOJ relies in its brief to defend its “office-and-employment-specific” definition of “emolument” were owned, possessed, or used by the founders, let alone had any impact on them or on the American people who debated and ratified the Constitution. For example, neither of these dictionaries is mentioned in the more than 178,000 searchable documents in the Founders Online database, which makes publicly available the papers of the six most prominent founders. Nor do these volumes appear in other pertinent databases, such as the Journals of the Continental Congress, Letters of Delegates to Congress, Farrand’s Records, Elliot’s Debates, or the Documentary History of the Ratification of the Constitution. By contrast, all of the dictionaries that the founding generation did possess and use regularly — e.g., Johnson, Bailey, Dyche & Pardon, Ash, and Entick — define “emolument” in the broad manner favoring the plaintiffs: “profit,” “gain,” “advantage,” or “benefit.” To document its primary claims, the Article includes over 100 original images of English language and legal dictionaries from 1523 to 1806, as well as complete transcripts and easy-to-read tables of the definitions contained therein. A second study is currently underway of dictionaries from 1806 to the present, which seeks to determine how and why definitions of “emolument” may have changed over time. Collectively, these inquiries are designed to accomplish more than simply aiding judges and holding lawyers’ feet to the fire in the emoluments cases now pending in three federal courts. They also provide a basis for educating members of Congress, government officials, journalists, and the broader public about the historical meaning of this important yet obscure constitutional term.
Download the article from SSRN at the link.

July 12, 2017

Comino, Galasso, and Grasizno on The Diffusion of New Institutions: Evidence From Renassiance Venice's Patent System @AlbertoGalasso

Stefano Comino, Università degli Studi di Udine, Alberto Galasso, University of Toronto, Rotman School of Management, University of Toronto, Strategic Management, and Clara Graziano, Università degli Studi di Udine - Department of Economics; CESifo (Center for Economic Studies and Ifo Institute for Economic Research, have published The Diffusion of New Institutions: Evidence from Renaissance Venice's Patent System. Here is the abstract.
What factors affect the diffusion of new economic institutions? This paper examines this question by exploiting the introduction of the first regularized patent system, which appeared in the Venetian Republic in 1474. We begin by developing a model that links patenting activity of craft guilds with provisions in their statutes. The model predicts that guild statutes that are more effective at preventing outsiders’ entry and at mitigating price competition lead to less patenting. We test this prediction on a new dataset that combines detailed information on craft guilds and patents in the Venetian Republic during the Renaissance. We find a negative association between patenting activity and guild statutory norms that strongly restrict entry and price competition. We show that guilds that originated from medieval religious confraternities were more likely to regulate entry and competition, and that the effect on patenting is robust to instrumenting guild statutes with their quasi-exogenous religious origin. We also find that patenting was more widespread among guilds geographically distant from Venice, and among guilds in cities with lower political connections, which we measure by exploiting a new database of noble families and their marriages with members of the great council. Our analysis suggests that local economic and political conditions may have a substantial impact on the diffusion of new economic institutions.
Download the article from SSRN at the link.

Domingo on Justinian and the Corpus Iuris: An Overview @RafaelDomingoO1

Rafael Domingo, Emory University School of Law; University of Navarra, has published Justinian and the Corpus Iuris: An Overview. Here is the abstract.
The authors explores the most important legal undertaking of Antiquity: the Corpus Iuris Civilis promulgated by Emperor Justinian. Justinian’s codification is the bridge that links Antiquity, the Byzantine Empire, and Europe. It is also the link between civil law and common law, and between canon law and civil law. To know about the Corpus Iuris is to know about something that was instrumental for the development of justice and law in the past, continues to operate in the present, and will probably have its impact in the future. The Corpus Iuris, especially the Digest, has not only a historic value but an intrinsic one because it embodied the creative spirit and permanent character of all of Roman jurisprudence.
Download the article from SSRN at the link.

Dubber on Colonial Criminal Law and Other Modernities @UTLaw

MArkus D. Dubber, University of Toronto Faculty of Law, is publishing Colonial Criminal Law and Other Modernities: European Criminal Law in the Nineteenth and Twentieth Century in the Oxford Handbook of European Legal History (forthcoming). Here is the abstract.
This paper has two parts. The first part reflects on various traditional approaches to the historical study of European criminal law in the nineteenth and twentieth century. The second part lays out an alternative, two-track, conception of "modern" European criminal legal history. It does this by taking an upside-down -- or outside-in -- view of the subject, by focusing on an understudied, but fascinating, project of European criminal law: the invention, implementation, and evolution of colonial criminal law.
Download the essay from SSRN at the link.

Reynolds on Truth and the Trial Lawyer @Oregon_Law

Jennifer Reynolds, University of Oregon School of Law, has published Truth and the Trial Lawyer at Trial Lawyer, Summer 2017, at 13. Here is the abstract.
Lawyers routinely deal in fictions, so much so that they are somtimes criticized as professional liars. But can this proficiency with storytelling actually bring us closer to the truth?
Download the essay from SSRN at the link.

July 11, 2017

Alexander on Libel and Copyright in the Satire of Peter Pindar

James R. Alexander, University of Pittsburgh, Jonestown, has published Libel and Copyright in the Satire of Peter Pindar. Here is the abstract.
In 1802, the English Chancery Court denied the satirical poet John Wolcot (‘Peter Pindar’) injunctive relief for copyright infringement claimed against his publisher John Walker. While the original agreement between the parties was ambiguous, the ruling was more procedural rather than interpretive. As Wolcot’s verse was always scandalous and arguably libelous, Eldon ruled that Wolcot should first establish his property in the contested works at law before seeking equitable relief, to thereby clear away any question of their criminality. This was arguably the first application to copyright of an eighteenth-century maxim that there could be no property in criminally-libelous literary works. Almost immediately and for over the next century in equity cases and both English and American legal treatises, Eldon’s ruling was interpreted as establishing the Court as censor morum, authorized under common law to rule exceptions to copyright protection based on a determination of illicit or illegal content, regardless of whether copyright statutes specified content-based exceptions. However, a careful review of the Chancery records reveals the ruling warrants a more tempered reading, and that the long-assumed legal precedent may have followed a hoped-for rather than established principle.
Download the article from SSRN at the link.

Tugendhat on Slavery and Comparative Law in Eighteenth Century England @LawLeicester

Michael Tugendhat, Leicester Law School, has published Slavery and Comparative Law in Eighteenth Century England as University of Leicester School of Law Research Paper No. 17-08. Here is the abstract.
This paper addresses the contemporary criticism to the European Court of Human Rights in the UK by underscoring how the English law on human rights has been positively influenced by the laws of other European countries, in the same fashion as English law has traditionally influenced such foreign laws. The means for this analysis is a case-study on the introduction of the French law on slavery and the subsequent implementation of such principles in England. Slavery had been abolished in France since the early 1300s. Moorish slaves brought to France were being freed from at least 1571, as was recorded by Jean Bodin in 1576. In England, slavery had practically disappeared at the sunset of the Middle Ages. It resurfaced in the French and American colonies in the New World in the 1600s. In the period 1730-1790 French courts, citing Bodin, freed over 200 slaves brought to France from the colonies. In Somerset v Stewart, 1772, English courts finally held that slavery was not recognised by English law, which led to the termination of slavery in England once and for all; and it was the influence of French courts’ decisions on the bestowal of freedom to foreign slaves that led to the reasoning of the English Court.
Download the article from SSRN at the link.

Simenon and Justice: A New Book By Alexandra Fabbri and Christian Guéry @BellesLettresEd

A new book on Georges Simenon and law, available from Les Belles Lettres. The authors are judges Alexandra Fabbri and Christian Guéry, and the book is Simenon et la Justice, in the series Bibliothèque Simenon.

The book includes chapters on various parties in the French judicial system and analysis of whether Maigret, Simenon's famous police officer, is simply an officer of the law, investigating crimes, or engages in judging his suspects' actions as well.

Here is a link to an interview with author Alexandra Fabbri, discussing the book.  Both the book and the interview are in French.

Call For Applications, Fellowships: Institute for Interdisciplinary Legal Studies, University of Lucerne

From the mailbox:

The Institute for Interdisciplinary Legal Studies at the University of Lucerne is pleased to announce the call for applications for its Young Scholar Visiting Fellowship scheme for 2018.  

The fellowship programme is part of our mission to promote international and interdisciplinary collaboration and exchange. Fellows are invited to spend an extended period at the institute, during which they can share and develop research and teaching ideas with our members.

Full details can be found here. The deadline for submission of applications is Thursday 30 November 2017.

Informal enquiries can be directed to Dr. Steven Howe (steven.howe@unilu.ch).

Registration Now Open For the Central States Law Schools Association 2017 Conference

From the mailbox:

Registration is Open for the CSLSA 2017 Conference

Registration is now open for the Central States Law Schools Association 2017 Scholarship Conference, which will be held on Friday, October 6 and Saturday, October 7 at Southern Illinois University School of Law in Carbondale, Illinois. We invite law faculty from across the country to submit proposals to present papers or works in progress.

CSLSA is an organization of law schools dedicated to providing a forum for conversation and collaboration among law school academics. The CSLSA Annual Conference is an opportunity for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment. More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work. Scholars from member and nonmember schools are invited to attend. 

Please click 
here to register. The deadline for registration is September 2, 2017.  

Hotel rooms are now available for pre-booking.  The conference hotel is the 
Holiday Inn Conference Center in Carbondale.  To reserve a room, call 618-549-2600 and ask for the SIU School of Law rate ($109/night) or book online and use block code SOL.  SIU School of Law will provide shuttle service to and from the Holiday Inn & Conference Center for conference events.  Other hotel options (without shuttle service) are listed on our website.  Please note that conference participants are responsible for all of their own travel expenses including hotel accommodations.

For more information about CSLSA and the 2017 Annual Conference please 
subscribe to our blog.

July 10, 2017

Danner on James DeWitt Andrews: Classifying the Law in the Early Twentieth Century

Richard A. Danner, Duke University School of Law, has published James DeWitt Andrews: Classifying the Law in the Early Twentieth Century. Here is the abstract.
This paper examines the efforts of New York lawyer James DeWitt Andrews and others to create a new classification system for American law in the early years of the twentieth century. Inspired by fragments left by founding father James Wilson, Andrews worked though the American Bar Association and organized independent projects to classify the law. A controversial figure, whose motives were often questioned, Andrews engaged the support and at times the antagonism of prominent legal figures such as John H. Wigmore, Roscoe Pound, and William Howard Taft before his plans ended with the founding of the American Law Institute in 1923.
Download the article from SSRN at the link.

July 7, 2017

Poisoned Pen/British Library Bringing Back Many Golden Age Titles @PPPress @britishlibrary

If you like Golden Age mysteries and detective fiction, or works published in English prior to that period, check out the reprints published in the series British Library Crime Classics from Poisoned Pen Press and the British Library. This wonderful collection brings back famous works (think about those by Freeman Wills Crofts) and lesser known works that were still popular in their day and that are unjustly forgotten. There are pathbreakers (Andrew Forrester's The Female Detective from 1864) and collections of short stories (Continental Crimes, edited by Martin Edwards, who contributes both editing and introductions to a number of books in the series), as well as resurrections of the works of authors such as Lois Austen-Leigh, a collateral relative of Jane Austen.

Martin Edwards, who is well known for his own mystery novels, is also the author of The Story of Classic Crime in 100 Books, from Poisoned Pen.

The Story of Classic Crime in 100 Books

Reasonable prices. Many of the titles are available in ebook format.

July 6, 2017

Two New Books About James Joyce and the Law

Colm Toíbín reviews two new books about James Joyce and the law, Joyce in Court (Head of Zeus), and The Ulysses Trials: Beauty and Truth Meet the Law (Liliput), for The Guardian. 

July 5, 2017

Cambridge Companion to Natural Law Jurisprudence, edited by George Duke and Robert P. George--New From Cambridge University Press @deakin @McCormickProf @CambridgeUP

New from Cambridge University Press: The Cambridge Companion to Natural Law Jurisprudence (George Duke, Deakin University, Victoria, Australia, and Robert P. George, Princeton University, NJ, USA), eds., CUP, 2017). Here from the publisher's website is a description of the book's contents.
This collection provides an intellectually rigorous and accessible overview of key topics in contemporary natural law jurisprudence, an influential yet frequently misunderstood branch of legal philosophy. It fills a gap in the existing literature by bringing together leading international experts on natural law theory to provide perspectives on some of the most pressing issues pertaining to the nature and moral foundations of law. Themes covered include the history of the natural law tradition, the natural law account of practical reason, normativity and ethics, natural law approaches to legal obligation and authority and constitutional law. Creating a dialogue between leading figures in natural law thought, the Companion is an ideal introduction to the main commitments of natural law jurisprudence, whilst also offering a concise summary of developments in current scholarship for more advanced readers.
Brings together leading international experts in the field • Provides a comprehensive overview of cutting edge scholarship in the area • Can serve as an introduction to the central area of legal theory, or the first port of call for scholars and students of natural law
Includes contributions by George Duke, Robert P. George, John Finnis, Knud Haakonssen, Jonathan Crowe, Christopher Tollefsen, Veronica Rodriguez-Blanco, Thomas Pink, Jacqueline Laing, N. E. Simmonds, Mark Greenberg, Robert Alexy, Mark C. Murphy, Gerard V. Bradley, and Kristen Rundle.

 The Cambridge Companion to Natural Law Jurisprudence

July 4, 2017

Murder on the Orient Express Returns To the Big Screen

In anticipation of the new version of Murder on the Orient Express, Entertainment Weekly's Tina Jordan offers this guide to Agatha Christie's novels.

Murder on the Orient Express, which stars Johnny Depp, Judi Dench, Penelope Cruz, Michelle Pfeiffer, and many other stars, is directed by Kenneth Branagh, who also plays Hercule Poirot. A famous earlier version appeared in 1974; it starred Albert Finney as Poirot, with such luminaries as Lauren Bacall, Tony Perkins, Ingrid Bergman, and Jacqueline Bisset, and that oh-so-1930s score by Richard Rodney Bennett. This new film, due in theaters November 10, will have to go a long way to beat that version, which I watched over and over; that score still sings in my head.

There have also been versions for TV in 2001, 2010 (as part of the David Suchet Poirot series), and 2015 (a Japanese version).

Fifty States of Television @Variety

For July 4th, take a television tour of our fifty states (and our nation's capital), courtesy of Variety, which offers us a trademark show set in each location. I'm not a fan of the presentation (click-through gallery), but I like the choices, among them Frank's Place (Louisiana) and The West Wing (D.C.). More here.

June 30, 2017

Likhovski on the Intellectual History of Law @TelAvivUni

Assaf Likhovski, Tel Aviv University School of Law, is publishing The Intellectual History of Law in The Oxford Handbook of Historical Legal Research (Markus Dubber and Christopher Tomlins, eds., Oxford University Press.,--). Here is the abstract.
This chapter identifies some recent trends in historiography generally, and in the study of intellectual history. The chapter discusses the relevance of these trends to the study of the intellectual history of law, referring to relevant legal history works reflecting these trends, noting existing lacunas, and proposing future directions of development of the study of the intellectual history of law.
Download the essay from SSRN at the link.

June 28, 2017

A Special Issue on Law and Popular Culture From the Journal of the Oxford Centre for Socio-Legal Studies @OxfordCSLS

Now published:

Special issue of the Journal of Oxford Center for Socio-Legal Studies: Law and Popular Culture (Issue 3, 2017).

This issue includes

Opening matters, by Pedro Fortes and Michael Asimow

Foreword: The Funhouse Mirror: Law and Popular Culture, by Lawrence M. Friedman

Jewish Lawyers on Television, by Michael Asimow

Outside But Within: The Normative Dimension of the Underworld in the Television Series "Breaking Bad" and "Better Call Saul," by Manuel A. Gomez

The Portrayal of the Corporate Lawyer on TV: The US and British Models from L.A. Law To Trust and Suits, by Peter Robson

Lights, Camera, Affirmative Action: Does Hollywood Protect Minorities? by Pedro Rubim Borges Fortes

Photography's Transformation: Its Influence on Culture and Law, by Henry J. Steiner 

Law and Opera: Stimuli to a Sensible Perception of Law, by Gabriel Lacerda
More Human Than Human: How Some Science Fiction Presenta AI's Claims to the Right to Life and Self-Determination, by Christine A. Corcos

Law and Literature: A Dilettante's Dream? by William Twining 

Wire From the Field: Tackling Visual Knowledge: The Story of the Yale Visual Law Project, by Sandra Ristovska

Book Review: Law and Popular Culture: A Course Book by Michael Asimow and Shannon Mader