Law Commons^™

Remaking Indians, Remaking Citizens: Peruvian And Mexican Perspectives On Criminal Law And National Integration, Lior Ben David

Studio for Law and Culture

At the end of the 20th century, recognition of indigenous peoples’ rights in Latin American constitutions has undergone significant evolution, while legal reforms officially “turned” some of these countries into multicultural nations. For many scholars, this multicultural shift was particularly prominent against a background of many years, during which the legal systems of Latin America ignored, excluded, assimilated and repressed indigenous peoples, portraying “The Indian” as an anomaly in a society of free end equal citizens. This article examines the images, representations and treatment of the Indians and “the Indian Question” in Peruvian and Mexican Criminal Law during the first …

Executing Whiteness: Fictional And Nonfictional Accounts Of Capital Punishment In The United States, 1915-1940, Daniel Lachance

Studio for Law and Culture

Over the course of the nineteenth century, elites in the United States increasingly sought to privatize executions and rationalize execution protocols. The source of this change is well known to historians of punishment: a fear that public executions had become unwieldy spectacles drove state actors to move these events into jail yards, at first, and then, with the advent of new technologies, into the interior of centralized prisons that were often far from the county in which the crime had occurred. The centralization of executions and the rationalization of execution protocols reflected and reinforced a more bureaucratic image of the …

Law And Fiction In Medieval Iceland: The Story In The Gragas Manuscripts, Thomas J. Mcsweeney

Studio for Law and Culture

Medieval Icelandic law has been appropriated for modern purposes as diverse as creating a history for European democracy and proving that a libertarian legal system can work in practice. It has been put to so many modern uses because it presents us with a picture of the Icelandic Commonwealth (ca. 930-1262) as a society of free and relatively equal farmers who operated with no king, no nobility, and minimal government. The laws represent Iceland as an exceptional polity, strikingly different from the monarchies and hierarchical societies that dominated Western Europe in the middle ages. This exceptionalism resonates strongly with modern …

A Pre-History Of Performing Rights In Anglo-American Copyright Law, Derek Miller

Studio for Law and Culture

Statutes creating performing rights--the subset of copyright that secures the right to perform a work – first appeared in the United Kingdom in 1833, and in the United States in 1856. As I explore in the larger project of which this paper forms a part, during the decades that followed these laws’ passage, jurists and theater-makers defined performance as a marketable commodity, what I call the performance-commodity. They did so by negotiating between performance’s aesthetic value and its economic value. This commodity-centered approach was absent from most copyright lawsuits about performance before 1833 and 1856 because jurists and litigants did …

The Tower Of Babel: Human Rights And The Paradox Of Language, Moria Paz

Studio for Law and Culture

Key human rights instruments and leading scholars argue that minority language rights should be treated as human rights, both because language is constitutive of an individual’s cultural identity and because linguistic pluralism increases diversity. These treaties and academics assign the value of linguistic pluralism in diversity. But, as this article demonstrates, major human rights courts and quasi-judicial institutions are not, in fact, prepared to force states to swallow the dramatic costs entailed by a true diversity-protecting regime. Outside narrow exceptions or a path dependent national-political compromise, these enforcement bodies continuously allow the state actively to incentivize assimilation into the dominant …

Leroy Pitzer: Citizen, Voter, Lunatic?, Rabia Belt

Studio for Law and Culture

In a 1905 Ohio case, In re South Charleston Election Contest, Leroy Pitzer was accused of being a “lunatic” or an “idiot” and thus unable to vote in a tight and contest election that ripped the town of South Charleston in half. After intense deliberations – and considering 29 different definitions of lunacy and idiocy – the court decided that something was wrong with Leroy Pitzer, but they could not figure out exactly what. They also could not determine who Pitzer voted for. Unfortunately, without his vote, the election result was a tie and the entire election was rerun.

The …

Judging Genocide In Rwanda: Lay Judges And Mass Prosecutions In Local Courts, Chakravarty Chakravarty

Studio for Law and Culture

The motivations, attitudes and behaviors of the quarter million lay judges who ran the mass prosecutions for genocide is a curiously under-studied topic in the growing literature on the local gacaca courts in Rwanda. The state would have failed to prosecute thousands of citizens without the cooperation of these judges. Yet this post-genocide Tutsi-dominated authoritarian state allowed these courts to run more or less independently and left this all-important task in the hands of lay judges. The judges too volunteered to work without compensation. Who were the judges? Why did they agree to take on the social and economic risks …

“Willing Victims” And “Innocence Unguarded”?: Ambiguous Volition, Perishable Promises, And Disavowed Consent In Fielding’S Amelia, Nicole M. Wright

Studio for Law and Culture

This paper examines Henry Fielding’s novel Amelia (1751) as a prescient literary contemplation of the temporality of consent. The novel’s preoccupation with impulsive consent and fluctuations of intention is set against a background of shifting legal standards concerning the imperishability of consent. Characters feel bound by norms discouraging the retraction of consent. Amelia’s private sexual episodes prepare the reader to deliberate over crises of accountability in non-sexual public settings (the criminal justice system, the gambling den, Vauxhall, and elsewhere). Modern-day legislation and university sexual codes enshrining the stepwise gauging of consent derive from such early reappraisals of the duration of …

Demanding The Angels’ Share: Intellectual Property And Spiritual Organization In The Urantia Foundation, Andrew Ventimiglia

Studio for Law and Culture

This article explores the role that intellectual property plays as it shapes the circulation and use of ‘The Urantia Book,’ a divinely revealed text published in 1955 and embraced by a community of believers. For many modern spiritual communities – of which the Urantian community is a telling example – their coherence no longer lies in a centralized institution like the church but instead in a shared dedication to sacred texts and other religious media. Thus, intellectual property has become an effective means to administer the ephemeral beliefs and practices mediated by these texts. This article explores a number of …

Responsible Shares And Shared Responsibility: In Defense Of Responsible Corporate Officer Liability, Amy J. Sepinwall

Studio for Law and Culture

When a corporation commits a crime, whom may we hold criminally liable? One obvious set of defendants consists of the individuals who perpetrated the crime on the corporation’s behalf. But according to the responsible corporate officer (RCO) doctrine – a doctrine that is growing more widespread – the state may also prosecute and punish those corporate executives who, although perhaps lacking “consciousness of wrongdoing,” nonetheless have “a responsible share in the furtherance of the transaction which the statute outlaws.” In other words, the RCO doctrine imposes criminal liability on the executive who need not have participated in her corporation’s crime; …

Nature, Nurture, Narrative, Law: The Wellesley Case, Oliver Twist, And The Victorian Anxiety About Parentage, Sarah Abramowicz

Studio for Law and Culture

Charles Dickens’s Oliver Twist heralded the popularity in Victorian England of a new type of novel, the novel of child development, that traced the experience of displaced child protagonists as they found their place in the world by working out their relationships with a series of parents and parent-figures. At the same time, the newly prominent field of English child custody law began to articulate why and how parentage matters for a developing child. An examination of one of the first highly publicized English custody disputes, Wellesley v. Beaufort, brings out some of the concerns about parentage at work …

The Administration Of Genius: Expertise And The Patent Bargain, Kara W. Swanson

Studio for Law and Culture

This Article investigates the role of the patent clerk in the nineteenth century development of the patent system to provide a new history of the foundational metaphor of the patent system, the “patent bargain.” The “patent bargain” refers to the exchange represented by each issued patent, in which the inventor reveals a novel idea in return for a limited-term monopoly to exploit that idea. Today, critiques of the patent system focus on whether the patent bargain is a good deal, that is, whether the economic interests of inventors and the public are served by issued patents. Drawing upon nineteenth-century patent …

The Aesthetics Of Affirmative Action, Brian Soucek

Studio for Law and Culture

Justice Thomas’s dissent in Grutter v. Bollinger — which dismissed diversity as an “aesthetic” — highlighted the Supreme Court’s least-discussed rationale for affirmative action in higher education: the claim that visible diversity in elite institutions bolsters those institutions’ “perceived legitimacy.” This Article takes seriously that claim, and Thomas’s critique, as distinctively aesthetic arguments about the role of appearances in public life. By distinguishing the perceived legitimacy argument from others made on behalf of affirmative action, the Article traces for the first time its origins, scope, and unacknowledged popularity. By identifying the aesthetic logic of the Court's argument and drawing on …

The Power To Destroy: Discriminatory Property Assessments And The Struggle For Tax Justice, Andrew W. Kahrl

Studio for Law and Culture

High assessments on African American-owned land became a common, if often invisible, feature of Jim Crow governance. Discriminatory modes of property taxation served as a weapon of social control, an instrument of land speculation and redevelopment, and a vehicle for the unequal distribution of public services. This essay traces the strange career of the property tax from the period of Reconstruction to the age of Jim Crow, situating racial differentials in the assessment and collection of ad valorem taxes within the broader framework of white supremacist governance, and provides a case study of property tax discrimination in civil rights-era Mississippi. …

“You Will See My Family Became So American”: Immigration, Racial Visibility, And Specular Citizenship, Sherally Munshi

Studio for Law and Culture

This paper explores the vexed relationship between legal form and personhood that arises in the context of Indian immigration and naturalization in the early twentieth century. In 1932, Dinshah P. Ghadiali received notice that the government was seeking to cancel his citizenship on grounds of “racial ineligibility.” In his self-published writing about the trial, Ghadiali wondered whether he been singled out for persecution by professional rivals. In fact, he had been caught in a larger campaign to denaturalize citizens of Indian origin after the Supreme Court, in United States v. Bhagat Singh Thind (1923), determined that “Hindus” were racially ineligible …

Can Moving Pictures Speak? Silent Film, Free Speech, And Social Science In Early 20th Century Law, Jennifer Petersen

Studio for Law and Culture

When the Supreme Court was first confronted with a First Amendment case involving film, it was confronted with a difficult and fascinating question: were silent films speech? The decision in the case, Mutual v. Ohio (1915), famously answered no. The decision is usually understood to be part of a tradition of interpretations of the First Amendment as applying primarily to political opinion; in this reading, film was not protected because it was entertainment and/or commerce. However, Mutual also contains a set of arguments about the nature of film as more akin to action than to speech — arguments embedded in …

Tradition, Precedent, And Power In Roman Egypt, Ari Bryen

Studio for Law and Culture

This paper is one of a series of preliminary studies that I hope will eventually end in a book-length study of the history of law in the eastern provinces of the Roman Empire. The history of law in the provinces tends to be written in one of two ways: either as the story of how Roman rules and concepts interpenetrate local cultural and legal systems (the history of the many and varied “vulgarizations” of Roman law); or, in the wake of the “Mediterraneanist” paradigms of the twentieth century, as a story of how local communities seek to regulate themselves – …

Home Rule: Equitable Justice In Progressive Chicago And The Philippines, Nancy Buenger

Studio for Law and Culture

The evolution of the US justice system has been predominantly parsed as the rule of law and Atlantic crossings. This essay considers courts that ignored, disregarded, and opposed the law as the United States expanded across the Pacific. I track Progressive home rule enthusiasts who experimented with equity in Chicago and the Philippines, a former Spanish colony. Home rule was imbued with double meaning, signifying local self-governance and the parental governance of domestic dependents. Spanish and Anglo American courts have historically invoked equity, a Roman canonical heritage, to more effectively administer domestic dependents and others deemed lacking in full legal …

The Fortas Film Festival, Brian L. Frye

Studio for Law and Culture

The story of Jack Smith’s film Flaming Creatures and the “Fortas Film Festival” illustrates the dialectic of obscenity. The obscenity doctrine expresses the conventional wisdom that the First Amendment actually protects art, and protects pornography only by extension. But Flaming Creatures and the Fortas Film Festival suggest that obscenity is dialectical. The obscenity doctrine provides the thesis: art protects pornography, by justifying the protection of sexual expression. Flaming Creatures and the Fortas Film Festival provide the antithesis: pornography protects art, by normalizing sexual expression. The history of obscenity law provides the synthesis: art and pornography protect each other. In other …

Regret, Remorse And Accidents: Where The New Apology Laws Go Wrong, Jeffrey S. Helmreich

Studio for Law and Culture

Apologies have proven dramatically effective at resolving conflict and preventing litigation. Still, many injurers, particularly physicians, withhold apologies because they have long been used as evidence of liability. Recently, a majority of states in the U.S. have passed “Apology Laws” designed to lift this disincentive, by shielding apologies from evidentiary use. However, most of the new laws protect only expressions of benevolence and sympathy (such as “I feel bad about what happened to you”). They exclude full apologies, which express regret, remorse or self-criticism (“I should have prevented it,” for example). The laws thereby reinforce a prevailing legal construal of …

The Nation And Its Heretics: ‘Muslim Citizenship’, State Power And Minority Rights In Pakistan, Sadia Saeed

Studio for Law and Culture

In 1984, Pakistan’s military ruler General Zia-ul-Haq passed an executive Ordinance that made it a criminal offence for members of the heterodox Ahmadiyya community, a self-defined minority sect of Islam, to refer to themselves as Muslims and practice Islam in public. Ahmadis challenged the 1984 Ordinance in both the Supreme Court and the Federal Shariat Court in Pakistan – in the former on that grounds that the Ordinance violated their constitutionally guaranteed right to freedom of religion and in the latter on the grounds that it violated shari’a. In a clear departure from the Pakistani courts’ earlier rulings on the …

“Corporation Law Is Dead”: The Mystery Of Corporation Law At The Height Of The American Century, Harwell Wells

Studio for Law and Culture

In 1962, the corporation law scholar Bayless Manning famously wrote that “[C]orporation law, as a field of intellectual effort, is dead in the United States.” Looking back, most scholars have agreed with Manning, concluding that corporation law from the 1940s to the 1970s was stagnant, only rescued from its doldrums by the triumph of the theory of the firm and modern finance in the 1980s. This paper takes a new look at American corporate law during this time, asking why scholars believed corporation law was “dead” at the same time that the American corporation had seized the commanding heights of …

Serving 99 To 149 Years For Wearing Butt-Huggers And Resisting To Subscribe To Cable Tv: The Presence Of The Law In Chicano Theatre, Maria Patrice Amon

Studio for Law and Culture

In the canon of Chicano theatre, the law holds a prominent role; the relationship between Chicanos and the law is a theme explored widely across Chicano theatre in both comedy and tragedy. This paper discusses how the comedy of Chicano theatre conceals the insidiousness of unchallenged racial stereotypes and acts as a safety valve to release the pressures of an abjected community. Yet, where comedy conceals the structure of abjection, drama critically challenges the status quo Chicano drama is capable of questioning the authority of the dominant hegemony over the cultures it oppresses. Beginning from a framing of the law …

"Petitions Without Number": Women’S Petitions And The Early Nineteenth-Century Origins Of Marriage-Based Entitlements, Kristin Collins

Studio for Law and Culture

Between 1792 and 1858, Congress enacted approximately seventy-six public law statutes granting cash subsidies to large classes of military widows. War widows’ pensions were not wholly unknown in Anglo-American law before this time, but the widows’ pension system of the early nineteenth century was distinctive in both scope and kind: Congress rejected the class-based approach that had characterized war widows’ pensions of the eighteenth century by pensioning widows of rank-and-file soldiers, not just widows of officers, and by extending pensions to widows of veterans. This significant equalization and expansion of widows’ pensions resulted in the creation of the first broad-scale …

Knowledge Games, Truth Seeking, And Organ Transplants Regulation, Marie-Andrée Jacob

Studio for Law and Culture

In this paper, I examine how different relations to knowledge are enacted among experts working in the governance of kidney transplants. Using fieldwork material gathered in transplant hospital and bureaus, I analyse how legal knowledge transacts with expert and lay knowledge in the context of very pragmatic tasks: detect the "intention to donate" and the "altruistic motivations" of those who procure a kidney to someone in need. My focus is on the management and circulation of knowledge, rather than the object of knowledge - transplants. Here, the law assigns its regulatory power onto experts, and the committees of experts in …

Rca V. Whiteman: Contested Authorship, Copyright, And The Racial Politics Of The Fight For Property Rights In Musical Recordings In The 1930s, Kurt Newman

Studio for Law and Culture

Between the Progressive Era and World War II, African American jazz music became the source of big profits for some white entrepreneurs in the United States. The encounter between whites and jazz was both a propertization and a privatization of African American group resources. While new technologies of recording and radio broadcasting were critical factors facilitating these cultural enclosures, the sine qua non was the embeddedness of American intellectual property law in the logic of white supremacy. In this paper, I focus on the popular jazz bandleader Paul Whiteman, best known to most contemporary legal scholars as the defendant in …

“Wife Beating” And “Uninvited Kisses” In The Supreme Court And Society In The Early Twentieth Century, Elizabeth Katz

Studio for Law and Culture

This paper challenges the conventional narrative that domestic violence victims were ignored by both law and society in the early 1900s. It begins by questioning the dominant position a single Supreme Court tort case, Thompson v. Thompson, holds in the domestic violence discourse. Far from being a strong or unified statement in favor of family privacy or against battered women’s legal rights, the case was decided by a four-Justice majority that pointed victims toward two very public alternative remedies: divorces with alimony and criminal prosecutions. The paper then proceeds to evaluate whether these proffered remedies were available and sufficient. …

Hobbes And Wolf-Man: Melancholy And Animality In Modern Sovereignty, Diego Rossello

Studio for Law and Culture

Homo homini lupus, man is a wolf to man, remains one of the most well-known and often quoted dictums in the tradition of political theory. Political theorists take this phrase by Thomas Hobbes in the Epistle Dedicatory of De Cive to illustrate the brutish, anarchical and violent condition of man in the natural condition, prior to the establishment of a civil state. Contrary to conventional wisdom, I suggest that this brief passage directs our attention to lycanthropy: an acute melancholic syndrome which 17th century physiologists thought could turn humans into animals. I suggest that Hobbes’s political theory stands for a …

Missionaries, Moral Advocacy, And The Transformation Of Police Court Procedure In London, 1876-1930, Sascha Auerbach

Studio for Law and Culture

This paper examines how informal courtroom negotiations transformed formal trial procedures, significantly expanded the social roles of local courts, and helped shape discourses of class, gender, race, and nationalism in British courtrooms. Specifically, it explores the origins, development, and impact of London’s first unofficial probation officers, the Police Court Missionaries. The introduction of these missionaries, who were paid agents of the Church of England Temperance Society (CETS), into the courts of the metropolis represented a watershed in the relationship between the state, private philanthropy, and working-class men and women. From the evolving dialogue between missionaries, working-class defendants, and magistrates emerged …

The Transformation Of The Laws Of War Into Humanitarian Law, Mark Antaki

Studio for Law and Culture

This study undertakes a genealogy of crimes against humanity. It inquires into key historical transformations that preceded the official birth of crimes against humanity in positive international law. The study brings to light changes in understandings of law, politics, and human being-together that accompany the articulation of crimes against humanity.

To speak of crimes against humanity is to speak the death of God. With the French Revolution, man displaces God as ground and measure of law and politics, leading to the articulation of crimes against humanity. The man who displaces God is “natural man,” a man who is naturally …