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Nothing so Lovely as a Tree

The books featured in this third top on our gallery tour—the case “Diagramming the Law”—all use images to overcome the limits of language for conveying complex legal and conceptual analysis.

We think they can point us to insights about the way law works in the world, and how it’s historically worked through images—especially images in books.

For centuries, the most common illustration in law books was a visual metaphor drawn from the natural world: the tree. As a graphic device—a chart—used in legal textbooks and treatises, trees of consanguinity and affinity helped readers grasp the legal significance of kinship for marriage and inheritance. The very first image in a printed law book, in 1473, was a tree of consanguinity.

We could have filled the entire Grolier Club exhibition hall with images, images, and more images—of trees … oh, man, could we ever (no, seriously, we could have).

Looking at them arrayed together across the big wooden tables of the Yale Law Library rare book gave new force to the idea—developed by the post-structuralist theorists Deleuze and Guatarri—that the western cultural and intellectual tradition is characterized by “arborescent thought.”

A “tree grows in our minds”? Our thinking is structured by this metaphor?

You’d better believe it—perhaps especially within the common law tradition, where the organic comparison fits so well.

By depicting legal relationships in spatial terms, trees represent those relationships more efficiently than is possible through language alone. They thus stand beside their text neither as allegories of the spirit of the whole, as we saw in our first case, nor as illustrations of a specific part, as in case two, but rather as concise charts of an extended structure of analysis.

The metaphor of the tree long persisted as a beguiling way to depict kinship and its legal consequences.

Yet the success of the tree also gave bud to new ways to crisply display legal and conceptual relationships, and those are represented throughout the case, too. On the very right-hand side, you can spy the colorful Atlas of German Law, which substantially advanced the tradition in contemporary Germany. We were happy to have its author, Eric Hilgendorf, speak at a recent symposium about the exhibit.

This post begins with an image from the seminal, first work of English jurist William Blackstone, which concerns a question of legacy admission to All Souls College, Oxford. In the words of legal historian S.F.C. Milsom, Blackstone’s creative use of graphic aids enabled him “to compress into a single chapter the mass of detailed rules which would in every possible case identify who a man’s heir was.”

The image above is an innovative descendant of hundreds of years of tradition in legal publishing.

Image

William Blackstone, An essay on collateral consanguinity. London: W. Owen … and R. Clements, in Oxford, 1750.

Mark S. Weiner & Mike Widener

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Kozinski reviews new book — THE JUDGE: 26 MACHIAVELLIAN LESSONS

Judge Alex Kozinski (credit: The Recorder)

So you thought a judge’s job is to be fair and impartial? To renounce personal gain? To have no agenda? According to Ronald K.L. Collins and David M. Skover in their new book, The Judge: 26 Machiavellian Lessons, that’s all malarkey. If you believe it, you’re a chump. And if you’re a judge who believes it, you should quit and make room for someone who will use his power to advantage. “Power,” the authors tell us, is “that ability to make something happen.” Like Niccolo Machiavelli, whose 16th century guide to executive power they channel, the authors explain how the modern judge can exploit the opportunities his position and Fortuna bestow upon him.

So begins Ninth Circuit Judge Alex Kozinski’s book review published on Law360. Here is another excerpt:

 “The ethics of a great judge are counter-ethics. They do not bow to law’s old pieties, the ones grounded in the myths of justice impartially applied. … Still, the myth of impartiality lives on and, strangely enough, some judges (the weaker ones) actually take their decisional cues from such pious norms.” The ideal judge “appreciate[s] the value of deception.”

Collins and Skover give example after example where U.S. Supreme Court justices have (in the authors’ view) manipulated the law, lied about history, undermined precedent while pretending to follow it, “cram[med] their opinions with half-truths” and generally pulled the wool over the eyes of their colleagues and the public. The authors speak in glowing terms about justices who achieve their ends through skullduggery and disparage justices who are ineffectual because they’re proud, priggish, wedded to precedent or fooled by their own rhetoric. According to Collins and Skover, “a Justice must be hypocritical and strive to appear objective, judicious, and collegial.” John Marshall, William J. Brennan Jr., William Rehnquist, Antonin Scalia and (usually) John Roberts make the grade while James Clark McReynolds, Felix Frankfurter, William O. Douglas (except in Griswold), Warren E. Burger, and Roberts in Obergefell don’t. Frankfurter draws particular scorn as “arrogant, combative, spiteful, and manipulative (but not in effective ways).”

 Of course, there is more, much more.  The full text of the review is here: The Judge, 26 Machiavellian Lessons

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ROUNDUP: Law and Humanities 10.20.17

Some news from the world of law and humanities.

Some Conferences, Calls for Papers, and Calls for Panelists

 

The American Constitutional Society for Law and Policy,  Barry University Law School Student Chapter, and Texas A&M University School of Law are hosting the Third Annual Constitutional Law Scholars Forum at Barry University School of Law in Orlando, FL, March 2, 2018.

Here is a link to the Call for Papers. The deadline to submit is December 1, 2017.

The Constitutional Law Scholars Forum invites scholarly proposals on constitutional law at any stage of pre-publication development, from the germination of an idea to the editing stage.  The Forum provides an opportunity for scholars and educators to vet their work-in-progress in a welcoming, supportive environment.  (The Forum is not accepting proposals from students at this time.)

Barry University School of Law is located within close proximity to recreational activities: Universal Studios, Disney World, Epcot Center, Sea World, world class golf courses, and beaches.  Orlando offers an average temperature of 78°F in March/April.

There are no conference fees and meals are provided, but participants are expected to pay their own travel expenses.

Abstract Submissions:

Email proposals to Professor Eang Ngov, engov@barry.edu, with “Constitutional Law Scholars Forum” in the subject line.  Submissions should include a short abstract (300 words maximum) and biography (150 words maximum).

Conference Organizers: 

Professor Eang Ngov, engov@barry.edu, office (321) 206 -5677, cell phone (571) 643-2691;   Professor Meg Penrose, megpenrose@law.tamu.edu.

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Call For Papers: Cities as Ill Bodies in Films and Series

From Anne Wagner, Associate Professor, EIC of the International Journal for the Semiotics of Law, and Co-Editor of the Series “Law, Language and Communication”

City is a living organism. It is built around a centre – the heart – that provides wealth, prosperity and work to citizens (i.e. the business centre). Transportation arteries are constructed to cut traffic congestion and to facilitate the link between dormitory rings and the business centre. City is like a living monster. It needs expansion, exposure, recognition, security and regeneration. City suffers. Congestion is far too important and the lack of security is the core issue for the Town Hall and its inhabitants. The most urgent matter concerns the close link between the regeneration of cities and their environment in order to maintain peace, comfort, discretion and visibility for all. City is an ill body with signs and symptoms that need to be treated and cured to restore its utility value to its inhabitants. The overall aim of a City is to guarantee simultaneously and paradoxically a high level of individual freedom and an order in which such freedom is made possible and guaranteed.

The intersections of Films/Series and Law represent a significant and prospective research. This edited volume will seek to explore the perception of cities in Films and Series worldwide. It will encourage a plurality of approaches for the understanding and practice of justice, morality and protection of citizens. Contributors may choose to explore semiotic, rhetorical, pragmatic, sociolinguistic, legal, psychological, philosophical and/or visual perspectives on Cities as ill bodies.

This edited volume could explore (but is not limited to) the richly complex manifestations of Cities as ill bodies in the following ways:

– What is an ill city? (State disorder, lawless cities, rebellion, revenge, etc.)

– How is provided the atmosphere in “ill cities”?

– How are power structures and citizens represented?

– What are the aesthetic and visual processes?

– How is organized the screenplay?

– How is captured the ideas of “peace”, “security”, “comfort”, “visibility”, “discretion” and/or “regeneration” in Films and Series?

– How does law try to regulate “cities as ill bodies”?

– What are the investigated related approaches to deal with violence, rights, justice, morality, sovereignty, or any other relevant field?

Submission information:

Email submission to Anne Wagner (valwagnerfr@yahoo.com)

Abstracts of 300 words (max.) can be submitted by 28 February 2018 to Anne Wagner with decisions made by March 2018.

Full papers of 25 000 words (max) will have to be sent by September 2018 with final decisions by November 2018.

 

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More from the Corfield Notes

I’ve been studying a different part of Justice Washington’s notes on Corfield v. Coryell–the part on the Commerce Clause issue in the case. Washington’s starts out his entry with: “Governor Wolcott’s reasons against the Connecticut bill. The Constitution of the United States vests in Congress the right to regulate commerce among the states. This right is necessarily exclusive.” Who is Governor Wolcott, and what Connecticut bill is he talking about?

Some research reveals that Oliver Wolcott Jr. was the Governor of Connecticut and that he vetoed a bill that would have created a local steamboat monopoly like the one from New York that was struck down in Gibbons v. Ogden. Wolcott’s veto was apparently considered a well-reasoned analysis of the problem and I am endeavoring to find the text. It seems as if his argument was that states could only pass commercial laws that furthered the aims of Congress. (That isn’t the same as reading the power as exclusive, but perhaps there is some nuance I’m missing.) Anyway, more to come.

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Watch Your Head

A woman heedlessly dumps a chamber pot from a second-story window. A group of clergy physically block laity from assembling around an altar. A bearded man furtively moves a boundary stone.

Welcome to the second stop on our exhibit tour of “Law’s Picture Books.”

The illustrations in this case—“Depicting the Law”—use figurative images to depict specific legal rules. They show not the symbolic, but the concrete. What knives are prohibited on the streets in seventeenth-century Genoa? Look to the image—there is the law:

In contrast to the images in “Symbolizing the Law,” the images in this case generally don’t appear at the start of books. Instead, they appear directly next to the legal language they illustrate.

They can tell us a lot not only about the history of law, but also about the history of culture and society, because they often include rich details from daily life.

This publishing tradition has ancient roots. It begins with the thirteenth-century Sachsenspiegel, an extraordinary compilation of Germanic customary law that remains unsurpassed in its seamless integration of text and image. And it continues up through the modern era—for instance in the charming Textbook of Aerial Laws that we were delighted to put on display.

Yet there also are major gaps within this history: on the European continent, such images largely disappear in eighteenth-century publishing, and there are almost none in the entire Anglo-American tradition. We don’t know why, and we hope our exhibit will encourage people to look for answers.

What about that heedlessly-dumped chamber pot?

Joost de Damhoudere’s treatise on criminal law stood out from the competition for its lively depictions of specific crimes, shown in a suite of five dozen woodcuts. The illustration that begins this post shows pedestrians fleeing the falling household garbage—or worse—unlawfully thrown onto public streets. The book was one of the most successful books in the entire history of legal literature, appearing in thirty-nine editions in four languages between 1554 and 1660. Twenty-three of these editions were illustrated, making it also one of the most successful illustrated books in any genre.

Scholars know that the illustrations were Damhoudere’s idea—he railed against lazy and expensive illustrators for failing to provide images for some his chapters.

Image

Joost de Damhoudere, La practique et enchiridion des causes criminelles. Louvain: Etienne Wauters & Johan Bathen, 1555. Illustrations by Gerard de Jode. Acquired with the John A. Hoober Fund.

Mark S. Weiner and Mike Widener

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To continue the tour, click here.

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FAN 166 (First Amendment News) Deleted Passages: VA ACLU abandons key portions of its original statement regarding William & Mary controversy

[Earlier this month]  a representative from the American Civil Liberties Union saw her chance to speak about the First Amendment squashed by students chagrined by the actions of her employer.Virginia Gazette, Oct. 6, 2017 The website of the ACLU of Virginia contains a statement by Claire Guthrie Gastañaga, its Executive Director. That statement pertains to the recent controversy at William and Mary. Below are portions of that statement, including passages in red that were apparently contained in the original version but no longer exist in the current one.

Claire Guthrie Gastañaga

“The ACLU of Virginia was invited by the College of William & Mary Alma Mater Productions to speak to students on Sept. 27 about their First Amendment rights, and, particularly, their rights at protests and demonstrations. We were pleased to accept the invitation and looked forward to making the presentation and answering questions on a wide range of topics. We were disappointed that we didn’t get the chance to provide the information that the students asked us to present nor to answer the tough questions we expected the student organizers and audience members to ask. . . .”

“The ACLU of Virginia supports unequivocally the freedom of professors, students and administrators to teach, learn, discuss and debate or to express ideas, opinions or feelings in classroom, public or private discourse.”

“We also support the goals espoused by the demonstrators (ending white supremacy, achieving racial justice, elevating those who have been oppressed). It is more than disappointing, however, when the robust debate that should be the hallmark of the culture of inquiry on a college campus is disrupted by those who seek with their own voices or actions simply to silence others who took actions or hold views based on principles with which they disagree.”

 “Disruption that prevents a speaker from speaking, and audience members from hearing the speaker, is not constitutionally protected speech even on a public college campus subject to the First Amendment; it is a classic example of a heckler’s veto, and, appropriately, can be prohibited by a college student code of conduct as it is at William and Mary. As a government entity, a public college like William and Mary has an obligation to protect the freedom of the speaker to speak and not to allow one group of people to shout down or seek to intimidate other speakers or members of the audience who wish to hear the speaker from exercising their own free speech rights. This is true regardless of what individuals or groups are speaking, protesting or counter-protesting.” [This passage survives in a blog post by Sam Harris.] “The ACLU of Virginia has been and will continue to be unwavering in its commitment to campus free speech. We are equally committed to ensuring that all universities take appropriate steps to ensure that the environment on their campuses fosters tolerance and mutual respect among members of the campus community, and an environment in which all students can exercise their right to participate meaningfully in campus life without being subject to discrimination. . . . ” “What happened at William and Mary on Sept. 27 is a part of a larger national trend that is challenging campus leaders across the country to find the right formula for assuring that critical community conversations can take place in a culture of inquiry consistent with a true learning environment. Actions that bully, intimidate or disrupt must not be without consequences in any such formula.” [This passage survives in an Inside Higher Ed story by Jeremy Bauer-Wolf. Though that story contained a link to the passage in red quoted above, the contents of that link have apparently been changed since it no longer contains the lines quoted above.]

Bill Farrar of the VA ACLU

Deleted passages: By all accounts, the passages in red were contained in an earlier version of the ACLU’s statement but do not appear in the current version.

VA ACLU Responds: When asked about the above, Bill Farrar, Director of Strategic Communications, responded: “We revised our statement based on internal feeedback from our colleagues.” He agreed that the deleted passages no longer reflect the Virginia ACLU’s current position. When asked if the National ACLU was consulted, Mr. Farrar said it was not.

Hecklers shout down California attorney general 

This from Adam Steinbaugh over at FIRE: “Last week, Whittier College — my alma mater — hosted California’s Attorney General, Xavier Becerra, in a question-and-answer session organized by Ian Calderon, the Majority Leader of the California State Assembly.”

“They tried to, anyway. The event ended early after pro-Trump hecklers, upset about Becerra’s lawsuit against the Trump administration over DACA, continuously shouted slogans and insults at Becerra and Calderon. A group affiliated with the hecklers later boasted that the speakers were ‘SHOUTED DOWN BY FED-UP CALIFORNIANS” and that the “meeting became so raucous that it ended about a half hour early.'”

“The event, held in Whittier College’s Shannon Center theater, was free and open to members of the community, and featured introductions from both Whittier’s president and student body president. Becerra and Calderon were to have an hour-long question-and-answer session using audience questions randomly selected from a basket. As soon as they began the discussion, however, hecklers decked in ‘Make America Great Again’ hats began a continuous and persistent chorus of boos, slogans, and insults.”

“Video captured by an alumnus captures the difficulty of hearing the discussion”:

“Video uploaded by two of the hecklers, Arthur C. Schaper and Harim Uzziel, captures the entirety of the affair, complete with chanted slogans and insults, such as ‘lock him up,’ ‘build that wall,’ ‘obey the law,’ ‘respect our president,’ ‘Americans first,’ and ‘You must respect our president!’ It also captures audience members repeatedly asking the hecklers to stop, and campus security officials approaching the group. Another video posted by “We the People Rising” also captured much of the disruption”:

“Calderon asked the audience to hold applause or booing, remarking: ‘It’s important that we have a productive conversation here.’ Becerra said that he thought the First Amendment to be a “precious thing,” but said he doubted the audience could hear him speak. The event, scheduled for an hour, concluded after about 34 minutes.”

“Schaper, a conservative columnist, is known for leading disruptions targeting Democratic officials, and was recently charged with disrupting a public meeting. For example, he disrupted a congresswoman’s ‘Know Your Rights’ forum, intended to give information to undocumented immigrants. ‘It was offensive,’ Schaper told the San Gabriel Valley Tribune. ‘[The congresswoman] took an oath to uphold [the] Constitution, and now she’s sponsoring a town hall that teaches illegal aliens about rights they don’t have.’ . . . “

Coming Soon: The First Amendment in the Regulatory State — Research Roundtable Read More

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Singular vs. Plural

Let me tell you about another juicy detail from Bushrod Washington’s “lost” journal. The journal contains his draft opinion in Green v. Biddle, in which the Court invalidated two state statutes from Kentucky that dealt with property rights. At the close of an opinion on this hotly contested issue, he wrote:

“[W]e hold ourselves answerable to God, our consciences, and our country, to decide this question according to the dictates of our best judgment, be the consequences of the decision what they may.”

In the draft opinion, here’s how this passage reads:

“I hold myself answerable to God, my conscience, and my country, to decide this question according to the dictates of my best judgment, be the consequences of the decision what they may.”

What does this difference mean? Was the draft opinion originally only for Washington (as a concurrence or dissent)? Did he just write drafts in the singular person until he received enough joins to make a majority? I’ll keep digging to find out.

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Our Tour Begins

Welcome to our virtual gallery tour of “Law’s Picture Books” at the Grolier Club, which we introduced in yesterday’s post. Our gallery consists of ten cases, each of which features images that serve a particular function or goal in legal publishing.

Today we’d like to show you the first case, “Symbolizing the Law.” It features books that contain allegorical images of law. What do law’s images do? For one, they represent law’s abstract ideals—indeed, images often convey those ideals much more effectively than can words alone.

You could talk to someone all day long about how law is no respecter of persons, or about the importance of its being applied with neutrality. Or you could just show them an image of Lady Justice. Allegorical images are central to the history of law book publishing—and, in the case of Lady Justice, to its brand identity.

Viewed collectively, the images of Lady Justice in this case illustrate a number of trends. You can see her transformation from an allegorical image to a trademark, much like the barber’s striped pole. In her early incarnations, Lady Justice is often appropriated to legitimate the power of the state or the sovereign, as in the statutes of Venice and Genoa that we have on display. Later, she’s used as a polemical device in the literature of law reform and social protest, as in the pamphlet we feature calling on the governor of California to pardon the radical labor leader Tom Mooney.

There are a number of curious things to recognize about the images in this case.

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Law’s Picture Books

As the Wall Street Journal reported a few weeks back (along with the New Yorker and the Frankfurter Allgemeine), the two of us recently opened an exciting exhibition in New York about the history of illustrated law books.

The exhibit is called “Law’s Picture Books: The Yale Law Library Collection,” and it includes over 140 items drawn from Yale’s unique collection in the field—which Mike developed. The exhibit is accompanied by a 220-page, full-color exhibition catalogue, as well as a companion exhibit at Yale Law School.

Here are a few snaps from the gallery at the Grolier Club, near the corner of Park and 60th, where the exhibit is on display until November 18:

Over the next ten posts, we’d like to share some images from the exhibit with the readers of Concurring Opinions, and we’d like to reflect a bit on their meaning. We think they’re fascinating, mysterious, beautiful, and intriguing—and that they can teach us a lot about law.

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FAN 165.2 (First Amendment News) Masses Publishing Co. v. Patten court documents now posted on First Amendment Library

Judge Learned Hand’s order granting the temporary injunction against the postmaster and ordering the magazine transmitted through the mails “without delay” was dated July 26, two days after the decision became known. During that brief period, the company pulled back the copies sent to the Post Office so the edition could be delivered by alternate means. On the same day the order was issued, U.S. Attorney Francis G. Caffey filed an Assignment of Error listing grounds on which he would rely in his appeal from Hand’s decree. In all, there were seven alleged errors, although essentially all of them went directly to the bottom line: Hand was wrong in finding for the magazine under every provision of the Espionage Act raised by government and wrong in granting the injunction.   — Eric Easton, Defending the Masses (Jan. 2018) 

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‘Tis the year of The Masses. This year marks the 100th anniversary of Judge Learned Hand’s seminal free-speech opinion in Masses Publishing Co. v. PattenAs previously reported here, two major events have been organized to celebrate the occasion.

New York Univeristy School of Law and the Sandra Day O’Connor College of Law at Arizona State University are hosting an all-day conference in New York on October 20th.

Gilbert E. Roe (lawyer for The Masses)

 Not long thereafter, on November 6th, the Second Circuit Court of Appeals, in association with The First Amendment Salons, the Floyd Abrams Institute for Freedom of Expression at Yale Law School, and the Media Law Committee of the New York State Bar Association, will host a “reargument” of the appeal in Masses Publishing Co. v. Patten. Floyd Abrams will appear on behalf of Postmaster Patten and Kathleen M. Sullivan will appear on behalf of Masses Publishing Co. The case will be argued before a panel of three judges:

  • Circuit Judge Reena Raggi,
  • Circuit Judge Pierre N. Leval, and
  • Circuit Judge Robert D. Sack

Original court documents posted for first time

In light of all of the above, the folks over at the First Amendment Library (led by Jackie Farmer) have uploaded 18 never before posted documents relating to the appeal in The Masses case. Among other things, this compilation includes the complaint, various affidavits filed in the case, transcript of the record, the order staying Judge Hand’s injunction, and much more.

Adriana Mark, head of research and education for the Second Circuit Library, unearthed these documents for the First Amendment Library. The librarians at the Gallagher Library of the University of Washington School of Law also provided additional research.

As the editor of the Library, I wrote the Introduction to the collection of The Masses documents.

Professor Eric Easton, author of Defending the Masses: A Progressive Lawyer’s Battles for Free Speech University of Wisconsin Press (Jan. 2018), kindly agreed to allow us to post a chapter from his forthcoming book, this to provide additional context for the documents posted.

            Judge Hand’s signature in Masses case