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LEGAL HISTORY eJOURNAL "Sociological Jurisprudence Past and Present" 
Law and Social Inquiry, Forthcoming
Washington University in St. Louis Legal Studies Research Paper No. 19-03-01 BRIAN Z. TAMANAHA, Washington University in St. Louis - School of Law
Email: btamanaha@wulaw.wustl.edu
Through the mid-twentieth century, jurisprudents considered sociological jurisprudence to be one of the most influential theories of law in the United States. By end of the century, however, it had virtually disappeared. The publication of Roger Cotterrell's Sociological Jurisprudence (2018) provides an occasion to examine what this theory of law was about, why it disappeared, and its prospects for revival. The topics covered are the circumstances surrounding the origin of sociological jurisprudence, the tenets of sociological jurisprudence, the successes of sociological jurisprudence, its relationship with sociology of law, its relationship with legal realism, its place in contemporary jurisprudence, and finally, the need to keep jurisprudence open. "Law and the Modern Identity"
Northwestern Public Law Research Paper No. 19-08 ROBERT P. BURNS, Northwestern University - Pritzker School of Law
Email: r-burns@law.northwestern.edu
This essay explores the plural elements of our modern identity and their significance for the legal order. This modern identity is all-pervasive and envelops us. It comprises goods that may be in conflict, but "for all that they don't refute each other." The essay provides an explication of and commentary on Charles Taylor's magisterial accounts of the modern identity. I agree that "if we are going to live by the modern identity, it better be by an examined version of it." I suggest ways in which in the legal world too, "modernity urgently needs to be saved from its most unconditional supporters." Finally, I argue that an account of modernity is a necessary step in identifying the tasks of a general theory of legal procedure. "The Distinctiveness of Religion: An Introduction and Response to Readers"
Journal of Law and Religion, Vol. 32, No. 3, 2017 KATHLEEN BRADY, Center for the Study of Law and Religion, Emory University
Email: kathleen.a.brady@gmail.com
This introduction and concluding response bookend the contributions to a book review roundtable on Kathleen A. Brady's The Distinctiveness of Religion in American Law: Rethinking Religion Clause Jurisprudence (Cambridge University Press, 2015), published in the Journal of Law and Religion in 2018.
Over the past several decades, religion's traditional distinctiveness under the First Amendment has been challenged by courts and scholars as religious and nonreligious convictions are increasingly seen as interchangeable and special treatment as unfair. In its recent decisions, the Supreme Court has made clear that religion will continue to be treated differently, but we lack a persuasive account of religion's uniqueness that can justify and inform these differences. Drawing on founding-era thought illuminated by study in the fields of theology, philosophy and phenomenology of religion, and comparative religion, The Distinctiveness of Religion in American Law seeks to develop such an account and, from this account, to articulate a new framework for religion clause decision making. It then illustrates this framework in the context of current conflicts regarding the protection of individual religious conscience. The Distinctiveness of Religion in American Law argues in favor of a strong right of exemption when the government substantially burdens practices essential to the believer's relationship to the divine, a supplemental minimally protective right for other conflicts, and generous room for legislative and administrative protections where accommodations are not required. These proposals afford protections for religious conscience that are robust, workable and fair, and they encourage religious believers and government officials to work together to develop mutually acceptable solutions to conflicts whenever possible. The book ends with a surprising conclusion: appreciating the distinctiveness of religion provides stronger foundations for protecting secular conscience than does viewing religious and nonreligious commitments as interchangeable.
The scholarly reviews to which this reply responds probe a number of aspects of the book's argument including its engagement with historical sources, its account of religion's distinctiveness, and the workability of its proposals. These reviews raise important issues, and this reply takes the opportunity to elaborate on some of the ideas developed in the book. "Property and Projection"
Harvard Law Review, Forthcoming
Virginia Public Law and Legal Theory Research Paper No. 2019-11 MAUREEN E. BRADY, University of Virginia - School of Law
Email: molly.brady@virginia.edu
In cities across the country, artists, protestors, and businesses are using light projections to turn any building's façade into a billboard, often without the owner's consent. Examples are legion: "Believe Women" on a New York City Best Buy; a scantily clad male model on the side of an apartment building; a nativity scene on the Los Angeles chapter of the American Civil Liberties Union. Two courts have considered claims by owners seeking to stop these projections under theories of trespass and nuisance. In each case, the courts held that because light is intangible and the projections result in no economic harm to the property, the common law affords no relief.
This Article argues that property law can and should address projection claims by private owners. It traces the history of property tort claims involving light, explaining how the law developed to emphasize economic and physical harm and identifying the forgotten strands of doctrine that nonetheless support liability for targeted projections. Projections are forms of appropriation: they disrupt the owner's use and control, but they also cause dignity and privacy harms by exploiting the owner's realty toward unwanted ends. Protections for these noneconomic interests have long been parasitic on trespass and nuisance, but the light projections expose a gap between the two forms of action. This Article offers a pathway to mend the gap despite hurdles in both nuisance and First Amendment law. More generally, the projection cases teach broader lessons about the development of the property torts, the relationship between privacy and property, and the nature of property itself. "Past As Prologue: Arbitration as an Early Common Law Court"
57 Houston Law Review__ (2020, Forthcoming)
University of Missouri School of Law Legal Studies Research Paper No. 2019-05 S.I. STRONG, University of Missouri School of Law
Email: StrongSi@missouri.edu
Two well-known means of resolving legal disputes in the United States – consumer arbitration and employment arbitration – have long been characterized as illegitimate forms of "second class" or "rough" justice. Recent years have seen renewed debate about the nature and quality of arbitral decision-making in light of several U.S. Supreme Court opinions involving arbitration.
Proponents of consumer and employment arbitration have defended the device through empirical, doctrinal and policy studies. However, thus far, no one has considered the fundamental fairness of these types of arbitration through a comparative historical analysis dating back to medieval England, when the common law first began.
This Article seeks to determine whether and to what extent modern forms of consumer and employment arbitration can be analogized to early common law courts, meaning those that operated between 587 and 1485 C.E. The analysis adopts a methodological technique known as applied legal history as a means of comparing practices and procedures in contemporary arbitration with practices and procedures in early common law courts so as to consider questions of procedural fairness and legitimacy. In so doing, the Article challenges a number of preconceptions about the nature of civil justice and comes to some surprising conclusions about ongoing (mis)perceptions about consumer and employment arbitration.
"Two Divergent Approaches to Comparative Legal Studies in Europe and Their Implications for Legal History"
Higher School of Economics Research Paper No. WP BRP 88/LAW/2019 DMITRY POLDNIKOV, National Research University Higher School of Economics
Email: dpoldnikov@hse.ru
Comparative legal studies have established themselves as the reaction of legal scholarship towards the legal diversity of our shrinking world today and in the past. Despite their potential, such studies occupy a marginal place in legal curricula and practice across Europe. This unhappy situation has brought about debates within the community of comparatists about possible causes and eventual remedies. In this paper, I look at this debate as the incarnation of the century-long confrontation among 'erudite' and 'pragmatic' legal scholars; the former group identify with the agenda of Rodolfo Sacco and the latter are led by Basil Markesinis. My aim is to draw implications from this debate for comparative legal history. In order to do so, I begin by introducing the main tenants of the two 'schools'. Secondly, I investigate the main stumbling blocks of the debate between them: Eurocentrism, the selective scope of research, interdisciplinary and cultural studies. Thirdly, I contemplate the implications of the debate for legal history and a possible synthesis of the two approaches suggested by Uwe Kischel.
My main point here is to encourage legal historians in two respects:
(1) to engage in cooperation with comparatists in order to enhance our understanding of the context(s) and the paradigm(s) of European legal culture in the face of the ongoing internationalisation of law and legal studies and,
(2) to pursue the task of revealing the hidden factors that slow down the transformation of positive law when the changing world calls for it, as is the case with acknowledging new kinds of legal subjects.
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About this eJournal This eJournal distributes working and accepted paper abstracts on the history of law and legal institutions, as well as other historical inquiries that relate to current legal issues.
Editor: Reva B. Siegel, Yale University
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Northwestern University - Pritzker School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
Email: bblack@northwestern.edu
RONALD J. GILSON
Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
Email: rgilson@leland.stanford.edu
Please contact us at the above addresses with your comments, questions or suggestions for LSN-Sub. Advisory BoardLegal History eJournal KWAME ANTHONY APPIAH
Princeton University - Department of Philosophy PETER PRESTON BROOKS
Andrew W. Mellon Foundation Scholar, Center for Human Values, Peter Brooks, Princeton University JUDITH BUTLER
University of California, Berkeley KIMBERLE CRENSHAW
Columbia Law School HENRY LOUIS GATES
Harvard University - Department of African-American Studies THOMAS C. GREY
Nelson Bowman Sweitzer & Marie B. Sweitzer Professor of Law, Stanford Law School DONNA HARAWAY
University of California, Santa Cruz - History of Consciousness DUNCAN KENNEDY
Carter Professor of General Jurisprudence Emeritus, Harvard Law School MARGARET JANE RADIN
Professor, University of Toronto - Faculty of Law, Henry King Ransom Professor of Law, University of Michigan Law School REVA B. SIEGEL
Nicholas deB. Katzenbach Professor of Law, Yale University - Law School , University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group KENDALL THOMAS
Columbia Law School IRIS MARION YOUNG
University of Chicago (Deceased) , University of Chicago - Department of Political Science | | | | | | | |
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