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Staging Law

All the law’s a stage, and law books often raise the curtain to reveal its players carefully arranged on a complex set. They depict judges, lawyers, and litigants in the formal spaces where law takes place, especially courtrooms, law offices, and law libraries.

The illustrations in the next stop of our gallery tour—case five: “Staging the Law”—serve many purposes, including public education, political critique, and the promotion of commercial sales.

Yet whatever their purpose, by depicting law’s stage, the books also portray law’s character as a public ritual.

Gates and walls and curtains. Parallel and intersecting architectural lines. Legal players aligned on different horizontal and vertical planes. In their very their realism, the images depict law as a theater of social meaning.

They are the most concrete form of symbolic representation in the tradition of law book illustration.

Images of lawyers at work—which appear almost exclusively in German and Dutch law books—depict more intimate legal proceedings, and so reveal a wealth of details about the relationships between lawyers and their clients, and even about the lawyers’ record keeping systems, as here:

Or here:

We’re mighty fond of them. (Scroll over the images for links to the complete images.)

The scandalous trial of Queen Caroline for adultery—initiated by George IV, who sought a divorce—was one of the most notorious legal and political events of its day, and served as a vehicle for popular criticism of government. The image that starts this post depicts the House of Lords decked out for the proceedings.

Image

The life, trial & defence, of Her Most Gracious Majesty, Caroline, Queen of Great-Britain. London: Dean & Munday, 1820. Acquired with the Charles J. Tanenbaum Fund.

Mark S. Weiner and Mike Widener

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For the next stop on our tour, click here.

 

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FAN 167.1 (First Amendment News) Center for Competitive Politics Renamed Institute for Free Speech

After twelve years, the Center for Competitive Politics is embracing a new identity

Bradley A. Smith

Alexandria, VA – The Center for Competitive Politics (CCP), the nation’s largest organization dedicated solely to protecting First Amendment political rights, announced today its new name, the Institute for Free Speech.

Though the group’s name is changing, its mission will remain the same. Since its founding in 2005, the Institute has fought for First Amendment political speech rights in every significant court case where they were at stake. Its efforts have contributed to a dramatic restoration of these rights – no other organization has done more to strengthen them.

“Back in 2005 it was important to emphasize that limiting speech frustrates our ability to have free and competitive elections,” said Institute for Free Speech Chair and Founder Bradley A. Smith. “But our very success in establishing the right to spend and speak about elections, especially in SpeechNow.org v. FEC, which established “super” PACs, has led those who oppose robust discussion of candidates and issues to try to squelch speech in myriad new ways.

“Free speech about candidates and issues remains subject to direct assault, but it is also being attacked indirectly with arcane rules at every level, using securities regulation, broadcast regulation, the IRS, government contracting power, harassment of individuals and organizations who speak out, and more,” Smith continued.

Pulitzer Prize-winning columnist George Will hailed CCP as the “gold standard” in advocacy work. But despite its success, CCP’s name often confused people about its work and objectives. The name Institute for Free Speech will clearly convey the group’s mission, to longtime supporters and newcomers alike.

David Keating

“Most Americans support the idea of free speech,” said President David Keating. “We want people to know who we are and what we’re about from the first moment they meet us. Our new name will quickly tell policymakers, journalists, judges, and potential supporters what we do. It will help us become even more effective.”

The Institute for Free Speech is a nonprofit, tax-exempt organization under Section 501(c)(3) of the Internal Revenue Code. It has been awarded a four star rating, the highest possible, for fiscal management and best practices in good governance by Charity Navigator, America’s largest independent charity evaluator.

About the Institute for Free Speech

The Institute for Free Speech is a nonpartisan, nonprofit 501(c)(3) organization that promotes and defends the First Amendment rights to freely speak, assemble, publish, and petition the government. Originally known as the Center for Competitive Politics, it was founded in 2005 by Bradley A. Smith, a former Chairman of the Federal Election Commission. The Institute is the nation’s largest organization dedicated solely to protecting First Amendment political rights.

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FAN 167 (First Amendment News) SPECIAL ISSUE: Robert Post’s Arguments Draw Replies from Erwin Chemerinsky & Will Creeley on Campus Speech Issue

(Credit: Evelyn Hockstein/ for The Washington Post)

This entire FAN post is devoted to recent developments concerning free speech on college campuses. This sampling reveals just how controversial and widespread this debate has become.

Last week I blogged on the campus speech debate as it played out with the Virginia ACLU and its response to the William and Mary controversy (Deleted Passages: VA ACLU abandons key portions of its original statement regarding William & Mary controversy. See also Walter Olson, The ACLU Yields to the Heckler’s Veto, WSJ, Oct. 24, 2017)

As evidenced by the several entries below, the campus speech issue continues to be the First Amendment issue of our times.

Just out: Post-Chemerinsky Exchange

Professors Robert Post and Erwin Chemerinsky exchange views on the topic of campus speech, this in just published Vox posts. Here are a few snippets from that exchange:

POST: “The language and structure of First Amendment rights . . . is a misguided way to conceptualize the complex and subtle processes that make such education possible. First Amendment rights were developed and defined in order to protect the political life of the nation. But life within universities is not a mirror of that life.”

“. . . [M]embers of the university community do not enjoy special freedoms. They have the right to academic freedom, not First Amendment freedom of speech. Academic freedom is defined in terms of the twin missions of the university; it encompasses freedom of research and freedom of teaching. Academic freedom does not entail the equality of ideas. To the contrary, it is defined as the freedom  to engage in professionally competent teaching and research.”

CHEMERINSKY: “Professor Post’s premise is undoubtedly correct: universities must evaluate the content of faculty and student work. But it does not follow that outside of this realm, free speech principles do not apply on campus. It is a logical fallacy to say that because basic free speech principles sometimes do not apply on campus, they must never apply.”

  • “First, it is important to distinguish what the law is from what Professor Post thinks the law should be. . . .”
  • “Second, Professor Post ignores the distinction between the university’s ability to regulate speech in professional settings (such as in grading students’ papers or in evaluating teaching and scholarship) and its ability to regulate speech in other contexts. . . .”

 Related: Erwin Chemerinsky & Howard Gillman, Free Speech on Campus (Yale University Press, 2017)

Robert Post’s Article & Will Creeley’s Response 

Recall, that in an earlier FAN post I refenced a forthcoming article by Professor Post entitled The Classic First Amendment Tradition Under Stress: Freedom of Speech and the University. Again, here is the abstract of that article:

Robert Post (Yale Daily News)

POST: This forthcoming chapter in a book to be edited by Lee Bollinger and Geoffrey Stone scrutinizes the frequently-heard claim that universities are suppressing the “First Amendment” rights of students, faculty, and invited speakers. The chapter argues that this claim rests on a fundamental misconception about the nature of First Amendment rights, which apply to public discourse and are designed to establish preconditions for democratic self-determination. Speech at universities, by contrast, must be regulated to attain the ends of education. Debates about the proper regulation of campus speech are thus ultimately debates about the nature of education, not about First Amendment rights. The overblown and misleading constitutional rhetoric of these debates is symptomatic of a larger debasement of our understanding of the nature of free speech protections, a debasement that could seriously undermine the strength of Free Speech principles when we actually need to call upon them to do serious work to protect the integrity of our political system.

I invited Will Creeley, Senior Vice President of Legal and Public Advocacy at FIRE, to respond to Professor Post’s article. That reply is set out below. Professor Post has been invited to respond. Should he accept, his response will be published in a future post.

WILL CREELEY, “Free Speech on Campus: A Response to Robert Post”

Will Creeley

In an essay for a forthcoming book edited by Lee Bollinger and Geoffrey Stone, Yale Law School professor and former dean Robert Post turns his attention to free speech on campus. Unsurprisingly, Post delivers his argument with characteristic erudition and acuity. Unfortunately, however, his contribution distorts the contours of the current debate by suggesting that my organization, the Foundation for Individual Rights in Education (FIRE), takes positions we do not in fact hold. Post’s misunderstanding of FIRE’s work requires a response.

Post argues that recent campus speech controversies illustrate “our modern failure to appreciate the fundamental purpose of the First Amendment” — that is, to “protect speech that serve[s] the purposes of self-government.” Because “public universities are not public parks,” and instead serve an educational mission, Post concludes that “it makes little sense to apply core First Amendment principles of freedom of speech to public universities.”

To make his point, Post enlists FIRE as a foil. He writes:

FIRE aggressively proclaims that First Amendment protections of free speech ought to apply within the domain of universities. The assumption is that First Amendment protections attach to speech, and speech occurs within universities. A moment’s reflection, however, reveals the superficiality of this logic.

“Consider, for example, speech within a classroom,” Post continues. “If I am teaching a class on the Constitution, my students cannot ramble on about the World Series.”

But to FIRE’s knowledge, nobody is arguing that they should be able to do so. Certainly, FIRE has never argued as much. Post does not cite any instance of FIRE (or any other organization) advocating that students should have such a right. FIRE has always recognized that professors have a right to control their classrooms. Academic freedom — that “special concern of the First Amendment” — demands it.

FIRE does not intervene in controversies involving in-class student speech. We do not take cases involving grade disputes, accusations of plagiarism, or other academic misconduct. Barring extraordinary circumstances — we have defended students who have been required by faculty to lobby for political positions outside of class, for example — we will not ever be involved in such cases. Post errs by suggesting otherwise, turning FIRE into a convenient strawman.

Post continues in this direction, attempting to show the incompatibility of the First Amendment and campus:

If I am supposed to be teaching constitutional law, I can’t spend my classroom time talking about auto mechanics. Universities also assess the quality of the ideas conveyed by professors. If a mathematics professor continuously gets her equations wrong, her competence will be called into question. Universities also compel professors to show up to class, to teach, and therefore to speak.

But again, to our knowledge, no one — not FIRE or other organizations, and certainly not courts — has suggested these examples are at odds with the First Amendment’s requirements, nor would any reasonable observer do so. In fact, the outcomes Post describes are in line with longstanding jurisprudence regarding the role of the First Amendment on public campuses. For example, like courts and the American Association of University Professors, FIRE believes that a faculty member’s in-class speech must be germane to the course’s subject, broadly construed, to earn the protection of the First Amendment and academic freedom. We acknowledge that if a professor isn’t actually teaching his or her class, he or she may be subject to discipline, though we think that such decisions are best left to his or her faculty peers.

Courts (and FIRE) have been more thoughtful about the First Amendment’s application on campus than Post acknowledges. Justice Powell’s statement in 1972’s Healy v. James is representative of the judicial approach, both then and now:

As the case involves delicate issues concerning the academic community, we approach our task with special caution, recognizing the mutual interest of students, faculty members, and administrators in an environment free from disruptive interference with the educational process. We also are mindful of the equally significant interest in the widest latitude for free expression and debate consonant with the maintenance of order.

And since the advent of forum analysis, courts have recognized the differences between the various areas of a college campus, noting the obvious distinctions between classrooms (a classic example of nonpublic fora), auditoriums or amphitheaters (designatated public fora), and open outdoor spaces and sidewalks (traditional public fora). See, e.g., Bowman v. White, 444 F.3d 967, 976-77 (8th Cir. 2006) (“A modern university contains a variety of fora…. labeling the campus as one single type of forum is an impossible, futile task.”) The judiciary has drawn these commonsense distinctions for years, but Post does not appear to acknowledge this well-established precedent.

Post’s argument is animated by his concern about applying the First Amendment “to ‘speech as such’ rather than to public discourse.” By invoking the First Amendment in controversies that concern only the quotidian “communication [that] inheres in all aspects of life,” Post worries that we are inviting a “predictable over-extension of First Amendment rights [that] will in the long run prove unsustainable.” In other words, when the speech at issue is not “essential for the free formation of public opinion,” the First Amendment need not apply.

Accordingly, because “public universities are not public parks,” Post concludes that “First Amendment doctrine does not help us resolve” campus speech controversies “because such doctrine derives from the requirements of public discourse within a heterogeneous nation.”

But the controversies in which we engage every day — FIRE’s bread and butter, wherein students and faculty engaging in public discourse outside of the classroom are subjected to censorship by the authorities or calls for such by their peers or the public — stem from analogous disputes between diverse members of a heterogenous campus. (This similarity in microcosm may partially explain the lasting public interest in campus speech controversies, and the way in which campus speech controversies sometimes prefigure or channel larger cultural disputes.) Given that we believe a core part of a public college’s educational mission is to facilitate the education of future leaders in democratic living, First Amendment doctrine is not only helpful in resolving these disputes, but essential.

If there is something “deeply wrong” about the First Amendment arguments that have helped protect student and faculty from censorship for decades, then FIRE will be happy to be as wrong as the courts that have crafted and credited them. If arguing for such is just “overblown rhetoric” — then, again, FIRE must simply disagree.

MORE ON CAMPUS FREE SPEECH ⇓ Read More

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Taking Law’s Measure

One aspect of law which makes it so compelling as a profession, as a field of study, and as a subject for book collecting, is that it’s a tool for solving real human problems. The peculiar beauty of law books derives in part from this usefulness.

They were made to be touched, handled, and put to work.

The books in the fourth case of our exhibit help practitioners solve legal problems through the tool of mathematics, and they focus on legal problems involving water and land. Their illustrations provide a clarity and a precision that a thousand words could never attain.

Both of us love these books. One of them, by Battisa Aimo, inspired Mike to develop Yale Law Library’s illustrated book collection in the first place.

Overflowing with formal beauty, their illustrations invite readers to shift their attention from book’s pages and onto a specific problem in the world—and then back again.

We note this toggling between text and image in the following video, referencing the long, fold-out map of the River Po at the bottom of the case:

The image at the start of this post comes from the first book of geometry for lawyers. The problem illustrated concerns the ownership of fruit produced by a tree that grows at the junction of several property lines.

In the illustration, the man perched precariously in the branches of the tree appears to have left his shoes and hat beside its trunk.

Look closely: it’s a delight.

The book takes pains to correct some formulations made in a great work of Barolo of Sassoferrato, or Bartolus, which we’ve also included in this case.

Next up in our gallery tour: “Staging the Law.”

Image

Jean Borrel, Opera geometrica. Lyon: Thomas Bertheau, 1554.

Mark S. Weiner & Mike Widener

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For the next stop on our tour, click here.

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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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For the next stop on our tour, click here.

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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.’ . . . “

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