Table of Contents

Historicism and Materiality in Legal Theory

Christopher Tomlins, University of California, Berkeley - Jurisprudence and Social Policy Program

The Future as a Concept in National Security Law

Mary L. Dudziak, Emory University School of Law, Center for Advanced Study in the Behavioral Sciences

Title Registration and the Abolition of Notice in British Columbia

Douglas C. Harris, University of British Columbia (UBC), Faculty of Law
May Au, UBC Faculty of Law - Class of 2104

Originalism & The Scope of the Constitution's Disqualification Clause

Seth Barrett Tillman, National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law

Unhinging Same-Sex Marriage from the Constitutional Canon: The Search for a Principled Doctrinal Framework

Anthony Michael Kreis, University of Georgia - School of Public and International Affairs

Felonia Felonice Facta: Felony and Intentionality in Medieval England

Elizabeth Papp Kamali, University of Michigan at Ann Arbor

Negotiated Order: The Fourth Amendment, Telephone Surveillance, and Social Interactions, 1878-1968

Colin Agur, Yale Law School


LEGAL HISTORY eJOURNAL

"Historicism and Materiality in Legal Theory" Free Download
Forthcoming in Maksimilian Del Mar and Michael Lobban, editors, Law, Theory and History: New Essays on a Neglected Dialogue (Oxford: Hart Publishing)

CHRISTOPHER TOMLINS, University of California, Berkeley - Jurisprudence and Social Policy Program
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Current interest in a rapprochement between legal theory and legal history rests on a transformation of legal theory into a species of historicism, a mode of inquiry that emphasizes the tempero-spatial locatedness of its objects of attention, and examines the multiplicity of relations existing between object and context. Contemporary paradigms in historicism further contend that whatever the context in relationship to which the object of inquiry is situated, the outcome is indeterminacy – the irreducible contingency of alternative possibilities, paths taken and not taken. Given the stranglehold that historicism has achieved in legal history, it is not surprising that its core contentions should be the drivers of revisionism in legal theory. However, alternatives should be considered. This paper undertakes a critique of historicism, and examines a rival philosophy of history that I will call “materiality.? A less developed, more eclectic, standpoint, materiality stresses the impact upon the formation of law of technologies, artifacts, and material practices. Rather than collapse law into its context, it seeks to examine the fabrication of law’s differentiation. Its potential is exemplified in work as varied as Cornelia Vismann’s Files: Law and Media Technology (2000; trans. 2008) and Bruno Latour’s The Making of Law (2002; trans. 2010). My main emphasis, however, will be on the species of historical materialism developed in the work of Walter Benjamin (1892-1940), where one finds both an intense stress on the materiality of an object of attention, and an understanding of historical perspective to entail much more than the derivation of the object’s meaning from the circumstances in which it is located. If history promises to enliven our understanding of an object, we must recognize the object is not enlivened by the relationalities of its time, within which it allegedly belongs, but by the fold of time that creates it in constellation with the present, the moment of its recognition.

"The Future as a Concept in National Security Law" Free Download
Pepperdine Law Review, Forthcoming

MARY L. DUDZIAK, Emory University School of Law, Center for Advanced Study in the Behavioral Sciences
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With their focus on the future of national security law, the essays in this issue share a common premise: that the future matters to legal policy, and that law must take the future into account. But what is this future? And what conception of the future do national security lawyers have in mind? The future is, in an absolute sense, unknowable. Absent a time machine, we cannot directly experience it. Yet human action is premised on ideas about the future, political scientist Harold Lasswell wrote in his classic work The Garrison State. The ideas about the future that guide social scientific work are rational predictions, he suggested.

If law is premised on ideas about something unknowable, something that can, at best, be a prediction, then it seems important to examine what those ideas, assumptions and predictions are. This essay examines future-thinking in prominent works related to national security, including the ideas that the future is peacetime, a long war, a "next attack," and the future as a postwar. Drawing from scholarship on historical memory and conceptions of temporality, this essay argues that understandings of the future depend on more than the rational empirical predictions that Lasswell had in mind. The future is a cultural construct that depends in part on the way we remember the past. It does not exist apart from the politics and values that inform our perceptions. The future does not unfold on its own. We produce our future through both our acts and our imaginations. Culture matters deeply in this context, for the future we imagine is a well-spring of law.

Forthcoming in a symposium issue of the Pepperdine Law Review on The Future of National Security Law.

"Title Registration and the Abolition of Notice in British Columbia" Free Download
(2014) 47 UBC Law Review 535-563

DOUGLAS C. HARRIS, University of British Columbia (UBC), Faculty of Law
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MAY AU, UBC Faculty of Law - Class of 2104
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Systems of land law must balance competing goals of securing title for existing interests in land with facilitating their transfer. Title registration systems operate to facilitate transfers of interests in land. They reflect a choice to enhance the security of transfers of interests, providing what has been characterized as dynamic security at the expense of the static security of existing interests. One of the cardinal principles of title registration is the abolition of the doctrine of notice. In equity, if purchasers of a legal interest have notice of a prior equitable interest, then they take their interest subject to that prior interest. To do otherwise is to perpetrate a fraud. Most title registration systems abolish notice; prior unregistered interests do not affect purchasers who register their interests, whether or not they have notice of the prior interest, except, so many title registration statutes provide, in the case of fraud. This article investigates the evolution of provisions purporting to abolish notice in Torrens title jurisdictions, it describes the variety of provisions that emerged, it reviews the longstanding uncertainty in British Columbia over the extent to which the doctrine of notice is abolished, and it considers a number of proposals for reform. It concludes that the uncertainty is a function of an unresolved policy choice between static and dynamic security, and that the British Columbia Court of Appeal or the legislature needs to intervene to clarify that choice.

"Originalism & The Scope of the Constitution's Disqualification Clause" Free Download
Quinnipiac Law Review, Vol 33, Issue 1, circa Dec. 2014, Forthcoming (INVITED RESPONSE)

SETH BARRETT TILLMAN, National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law
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This paper discusses the scope of the Constitution’s Disqualification Clause (Article I, Section 3, Clause 7) and the original public meaning of its “office . . . under the United States? language. In a recent paper in this journal, Benjamin Cassady argued that this clause bars disqualified former presidents, vice presidents, and officers of the United States from subsequent election or reelection to the presidency and vice presidency. Here, I take the contrary position: disqualified former presidents, vice presidents, and officers of the United States are not barred from any elected positions, state or federal. Rather, such disqualified former presidents, vice presidents, and officers of the United States are only barred from holding statutory or appointed federal offices. Finally, I address some issues relating to best methodological practices and the use of structural and other intuitionist modalities of interpretation when constitutional text is reasonably clear.

I primarily rely on evidence contemporaneous with the ratification of the U.S. Constitution, including: the drafting traditions of the Committee of Detail and the Committee of Style, statutory drafting traditions going back to the First Congress, official Executive Branch communications from Secretary Alexander Hamilton to the Senate, and President Washington’s gifts from foreign government officials. These are all Founding-era precedents involving the Constitution’s “Office . . . under the United States? language, i.e., the operative language in the Disqualification Clause.

"Unhinging Same-Sex Marriage from the Constitutional Canon: The Search for a Principled Doctrinal Framework" Free Download
63 Emory L.J. Online 1, 2014

ANTHONY MICHAEL KREIS, University of Georgia - School of Public and International Affairs
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This essay examines dissenting opinions from Justice Scalia and Justice Alito in Windsor v. United States. The dissenters, joined by Justice Thomas, asserted that a fundamental rights analysis requires a granular-level inquiry to determine whether same-sex marriage is a new, distinct fundamental right deeply rooted in national tradition and history. This is a sharp deviation from precedent expounding the freedom to marry. To highlight this, the essay reviews prior cases concerning prisoners' right to marry and interracial couples’ right to marry. From this historical analysis, the essay concludes that the Court has never examined claims concerning the fundamental right to marry from the narrow level of abstraction Justice Scalia and Justice Alito argued for in Windsor.

"Felonia Felonice Facta: Felony and Intentionality in Medieval England" Free Download
Criminal Law and Philosophy (2014 Forthcoming)

ELIZABETH PAPP KAMALI, University of Michigan at Ann Arbor
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This paper explores the meaning of the word “felony? in thirteenth and fourteenth century England, i.e., during the first two centuries of the English criminal trial jury. To compile a working definition of felony, the paper presents examples of the language of felony drawn from literary and religious sources, in addition to considering the word’s more formulaic appearance in legal records. The paper then analyzes cases ending in acquittal or pardon, highlighting the factors that might take a criminal case out of the realm of felony. It suggests that the very definition of felony and felonious behavior — and thus the essence of criminal responsibility — may be bound up with the idea of mens rea during this period. The paper aims to uncover broader societal understandings of the nature of guilt and innocence, and to highlight connections and disconnections between the formal criminal law of felony, with its heavy emphasis on capital punishment, and popular and ecclesiastical understandings of culpability.

"Negotiated Order: The Fourth Amendment, Telephone Surveillance, and Social Interactions, 1878-1968" 
Information and Culture, Vol. 48, No. 4, pp. 419-447 (2013).

COLIN AGUR, Yale Law School
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In the US, the words ‘telephone surveillance’ bring to mind contemporary security concerns about smart phone tracking, the NSA warrantless wiretapping scandal, and the telecommunications provisions of the Patriot Act. Yet telephone surveillance is as old as telephony itself, dating back to the nearly simultaneous commercialization of the telephone and phonograph in 1878. First put to use by users, so they would have a written record of business meetings held over the phone, recorders were later put to use by police for surreptitious recording of criminal suspects’ conversations. This article examines telephone surveillance by American law enforcement agencies from the inception of telephone service to the passage of the Federal Wiretap Law in 1968, focusing on the challenges an advancing, proliferating, and shrinking technology posed for Fourth Amendment law. To highlight the technological, institutional and cultural interactions that have shaped Fourth Amendment jurisprudence, the article deploys Jack Balkin’s theory of cultural software and Anslem Strauss’s concept of a negotiated order, and brings together major cases, federal legislation, and evidence of government surveillance. The article shows how telephone surveillance brought the Fourth Amendment into prominence and inspired many of its most contentious debates; the article argues that during the first 90 years of telephone usage in America, laws on search and seizure developed not from constitutional consistency or logic, but as the result of a complex negotiation process involving new media and human agency.

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Advisory Board

Legal 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
Harvard Law School

MARGARET JANE RADIN
Henry King Ransom Professor of Law, University of Michigan Law School, Distinguished Research Scholar, University of Toronto Faculty of Law

REVA B. SIEGEL
Nicholas deB. Katzenbach Professor of Law, Yale University - Law School

KENDALL THOMAS
Columbia Law School

IRIS MARION YOUNG
University of Chicago - Department of Political Science