Now showing items 1-20 of 561

    • The Video and the Algorithm: Democracy, Antitheatricality, and Paranoia in the Age of Streaming Media

      Stone Peters, Julie (Yale Journal of Law & the Humanities, 2024)
      As debates about “digital democracy” remind us, democracy is one of our central political keywords, but its meaning is difficult to pin down. It can point to any one of a wide variety of political norms, act rhetorically to buttress a set of contradictory claims, or sometimes merely gesture vaguely toward the general political good. This essay looks at democracy not as a set of normative claims but as an idea that takes shape in the spatial-visual imaginary. Exploring democracy as a set of images, I argue that two persistent “models” have helped us to envision it, models I describe as “the performing polis” and “the dispersed demos.” These models often appear in idealized form, but they also appear as corrupt Doppelgängers of the idealized versions: in antitheatrical images of the “evil theatrocracy”; in paranoid renderings of invisible networks of marauding automatons and invisible agents. I offer a compressed history of these models, which show up in both their utopian and dystopian forms in a variety of texts: ancient Greek philosophy, Early Modern and Enlightenment political treatises, modern and postmodern political and media theory. I then turn to two cases recently decided by the Supreme Court: Twitter v. Taamneh and Gonzalez v. Google. While these cases are formally about the liability of internet platforms for their users’ incendiary posts, they are also about democracy in the digital age. I look at how the two models of democracy I have identified inform them, appearing in the cases in both their utopian and dystopian forms. At the heart of the visions of democracy these cases proffer are the figures of the video and the algorithm: vehicles of democracy and its nightmare antitheses; synecdoches for its promises and pathologies; the central forces of our digital future.
    • Identifying Youth Sport

      Koller, Dionne (Yale Journal of Law & the Humanities, 2024)
      The United States is steeped in the prevailing discourse that youth sport is part of a “good” childhood. With approximately 60 million children participating, it would seem that the conventional wisdom is true. Yet the dominant narrative occurs within a troubling empirical reality. What is often referred to as the “professionalization” of youth sport, which emphasizes early sport specialization, over-training to the point of injury, competition, and the drive to win, leads the majority of children who enter youth sport to quit by adolescence. Because professionalized youth sport is also costly, millions more, particularly children of color and children with disabilities, never have the opportunity to play. Despite the known harms of the current system, there has been little legal scholarly attention to youth sport and little meaningful reform. This article seeks to lay the foundation for a different approach by taking a crucial threshold step: fully identifying what, in the U.S., youth sport is. While the answer may seem apparent, given our perceived familiarity with sport, I argue that it is more complex. This article explains that U.S. youth sport is a particular model infused with the power of the legal and policy choices, including the choice not to regulate, that reflect our historical moment. Youth sport occurring in this environment is not, as commonly thought, just a private family matter, but a site of significant societal production that supports all other levels of athletics. It is, in short, much more than simply play. Operating in this way, I argue that the U.S. youth sport model produces a surplus value that is distributed across society, from parents and fans to sports sponsors and state and local governments. By identifying youth sport by what it is, and not what it purports to be, this article reveals why the current system is resistant to change and sets the stage for more meaningful approaches to reform.
    • Affective Reproductive Legality: Navigating the Borderland of Life and Death

      Naaman, Noy (Yale Journal of Law & the Humanities, 2024)
      Birth and death are traditionally viewed as antithetical moments. They divide our relations in the world: from their instantaneous creation at the point of birth to their dissolution at the point of death. From partner to widow, from expectant to grieving parent, in confronting the life death threshold, we become someone other. This conventional view presupposes a clear demarcation between life and death, suggesting that beyond this threshold, our relationships experience a definitive change. Yet, while our relationship with the deceased is physically taken from us, could our affective bond with them not only hold firm but also be helped to flourish? If so, what might be the tradeoff of blurring the borderland between life and death? This Article considers these questions as a matter of law, particularly in the context of reproductive rights. It assesses and juxtaposes the jurisprudence surrounding two reproductive experiences where birth and death meet: stillbirth and posthumous assisted reproduction. Both delivering a stillborn child and conceiving a child posthumously using artificial reproductive technologies challenge accidentally or intentionally the life death borderland, posing a dilemma for policymakers regarding how to regulate such scenarios. Examining the question centered in this Article, I argue, could inform policymakers contemplating the regulation of these experiences.
    • A Political Approach to Legal Evidence

      Kenneth, Tomer (Yale Journal of Law & the Humanities, 2024)
      Legal evidence is often seen as exceptional. Its focus on facts distinguishes it from legal fields, and the particular legal setting in which it operates distances it from other fact-finding endeavors. This article challenges this view. It argues that legal evidence is closely connected to political theory. The article explains the similarities between legal and political decisions about facts: both are practical decisions, made by state institutions, under conditions of uncertainty, and aimed at determining the factual basis that underpins substantive judgements. Given these similarities, legal evidence can learn a lot from theories that govern political decisions, especially political decisions about facts. One emerging line of scholarship political epistemology seems particularly useful for this endeavor. Unfortunately, existing legal evidence scholarship overlooks these resources. Drawing on and developing these insights, this article makes three related arguments. First, legal evidence has close relations with political theory. Second and following, legal evidence should focus on the legitimacy, rather than the accuracy, of decisions about facts. Third, political epistemology can offer guidance on how to achieve this legitimacy. The article then employs this political approach to legal evidence. It developing evidence doctrines such as hearsay and the Confrontation Clause, jury biases, and epistemic injustices of specific rules. Finally, this approach also invites legal evidence to improve legal decisions about facts beyond the Federal Rules of Evidence, including decisions by the Supreme Court and quasi-judicial institutions.
    • "Who Was Your Grandfather on Your Mother's Side?" Seduction, Race, and Gender in 1932 Virginia

      Nicolas, Taylor (Yale Journal of Law & the Humanities, 2024)
      Was Dorothy Short Black? And, more importantly, did she know it? These questions, odd-sounding and perhaps unsettling to the contemporary reader, were the ones raised by Leonard Harry Wood in the hopes of avoiding prison for the crime of seduction. This Article examines the story of Dorothy Short and Leonard Wood, their relationship, and the criminal case that followed it in order to explore the ways in which seduction laws worked to create ( and recreate) gendered categories of race. The Article's main contribution is shedding new light on the 1932 Virginia Supreme Court case Wood v. Commonwealth of Virginia, and more broadly on the ways in which seduction jurisprudence influenced racialized understandings of gender.
    • The Lawyer, the Witch, and the Witness: Proving Witchcraft in the English Courts

      Maddox, Trace M. (Yale Journal of Law & the Humanities, 2024)
      In the sixteenth century, a new crime arrived on the scene of the secular courts: witchcraft. Over the following two hundred years, tens of thousands of individuals across Europe and its colonies would be tried and convicted of this offense. In England alone, hundreds of men and women were executed for covenanting with the Devil or using harmful magic against their neighbors. Almost universally, this "age of credulity and injustice"5 has provoked a kind of retrospective horror that "rational, highly educated men 'could have been so bigoted as to put people to death for ... patently impossible acts' ." In popular thought, convictions for witchcraft must have been miscarriages of justice: because witchcraft does not exist, witchcraft prosecutions are, almost by definition, sham trials. And certainly, many aspects of the witch trials seem barbaric by modem standards. In particular, much of the evidence relied upon seems nonsensical. The criminal justice systems of early modem Europe lacked many of the evidentiary rules that, today, seem most fundamental - and contemporary commentators clamored for the suspension of those that did exist. Because witchcraft was "an extraordinary matter," the argument ran, it required "extraordinary dealing."
    • Dred Scott's Daughter: Gradual Emancipation, Freedom Suits, and the Citizenship Clause

      Frost, Amanda (Yale Journal of Law & the Humanities, 2024)
      The Fourteenth Amendment's Citizenship Clause connected borders, birth, and egalitarian status to forge a new definition of U.S. citizenship, freed for the first time from constraints of race and lineage. This Article locates a forerunner to the Citizenship Clause in antebellum laws enacted by six northern states under which all persons born within their borders were deemed free, regardless of their parents' race or enslaved status. In subsequent freedom suits, courts in these states declared this rule applied even to children born to fugitive slaves, holding that the child's status turned solely on location of birth, not the mother's enslavement. The Article begins by analyzing the development of "birthright freedom" an antebellum doctrine that was well known at the time to lawyers, politicians, and at least some enslaved women, who freed their children by escaping to free states while pregnant. These six states not only declared the children of slaves born within their borders to be free albeit required to serve lengthy periods ofindenture to their mother's enslaver they also mandated that these children be educated, treated as "servants" (not slaves), and that their births be registered with the state to protect their free status. The Article then argues that this linkage of location of birth, legal status, and membership rights provided socio-legal context for the drafting and ratification of the Citizenship Clause. In conclusion, the Article describes how the doctrines of birthright freedom and birthright citizenship have shaped legal rules and social practices around borders, birth, and status throughout U.S. history.
    • Copyright, Moral Rights, and the Social Self

      Simon, David A. (Yale Journal of Law & the Humanities, 2024)
      Moral rights—non-economic rights that enable authors to control how their copyrighted work is divulged, attributed, modified, and withdrawn—are grounded on the Investment Theory: when an author creates a work, she invests part of her self in it. Because the work is an extension of the author’s “self,” special rights—not merely economic rights—are needed to protect it. Although intuitive, the rationale raises two central questions any moral rights theorist must address: how can an author invest her “self” in a work, and how might the law protect this investment? Moral rights scholars have not provided a satisfactory answer to the first question, making the second one difficult to address. This Article argues that an idea from social psychology might help answer the first question and shape how we respond to the second. Rather than some philosophical or abstract conception of the self, the authorial self the law protects is the social one: the self created and maintained through social interaction. On this account, moral rights are tools to present and manage aspects of this social self. They are limited “rights of impression management.” This framing enables two analytical moves. First, it precisifies what moral rights protect (the social self as externalized in the work) and the harm they protect against (potential inconsistencies in that self). Second, it provides a framework for discussing how moral rights ought to protect the self from harm, raising the ultimate questions of whether and to what extent the Investment Theory is justified.
    • Cooperating to Resist: Society and State during China's COVID Lockdowns

      Qiao, Shitong (Yale Journal of Law & the Humanities, 2024)
      China's lockdown during the COVID-19 pandemic was widely considered a stark demonstration of the unconstrained power of an authoritarian state. Yet this power may not be as limitless as it appears. This article, the result of extensive fieldwork encompassing over ninety interviews and on-site visits to Chinese cities, primarily focusing on Shanghai and Wuhan, where the most significant lockdowns occurred, delves into the intricacies of the Chinese partystate's response to the pandemic. It offers a unique perspective on the constraints that societal forces impose on the party-state's exercise of power and, in doing so, challenges conventional wisdom. While the Chinese Communist Party (" CCP") touted its COVID-19 response as a testament to the robustness of its institutions, critics pointed to the widespread infringement of individual rights and the suffering endured during China's pandemic lockdowns. However, one aspect has been largely overlooked: the role of society itself. This study uncovers the hitherto unexamined role of society in monitoring and resisting the party-state's encroachments on individual rights during the pandemic, a phenomenon I term" cooperating to resist." My research reveals the state's inherent limitations in enforcing neighborhood lockdowns and providing essential services to locked-down communities. Crucially, I demonstrate that the cooperation of citizens, particularly homeowners, was indispensable to the state's ability to maintain its COVID-19 control measures. Yet, this cooperation was not without its implications. When homeowners, who had been willing partners of the government, invoked legal narratives to voice their concerns, the government found itself compelled to respond. This interdependence between the government and homeowners unveils a dynamic where dependence begets power, complicating the prevailing narrative of China's" strong state, weak society." It also offers fresh insights into the dynamics of power and legality in authoritarian regimes and casts new light on the relationship between property rights and sovereignty. In an authoritarian regime, property law emerges as a sanctuary of resistance for citizens.
    • Before Law and Literature: Law or Literature

      Blumberg, Frederick (Yale Journal of Law & the Humanities, 2024)
      This article draws attention to an overlooked set of situations and some responses to them integral to the longer history of law and literature. These situations I call law-or-literature dilemmas: when a desire to pursue the humanities meets external pressure to study or practice law, and by all indications the choice between them is mutually exclusive. Out of dissatisfaction with the predicament, efforts emerge to outmaneuver the options, and in certain instances the law-or-literature problem has found a law-and-literature solution. The source of these syncretic initiatives, a literary bent confronting a straitened vocational choice, is perhaps so obvious that we have not entertained it as a primitive impetus for the lawand- literature enterprise. It is worthwhile to look at how law-or-literature conflicts get reframed as complementarities because it can enhance our perspective of the motives and provenance of law and literature as a field. If we wish to understand what has brought law and the humanities together, it is essential to see what has kept them apart. The paper does not proceed chronologically but like a triptych with each panel based on a different kind of pressure—social, professional, and institutional—bearing down against the litterateurlawyer and each illustrating a notable individual effort to resist that pressure and make literature a part of lawyers’ education, practice, or edifying leisure.
    • Why a Serf is Not a Slave: Humans and Land in the Medieval Scholastic Imagination.

      Conte, Emanuele (Yale Journal of Law & the Humanities, 2024)
      James Whitman observed more than once that historians of law should boldly set out to formulate 'grand theories,' long-term interpretive hypotheses that draw together the infinite number of details into an overall picture, rather than merely proposing detailed studies of individual sources or particular legal institutions. While specialists in legal history dwell on the details, these overviews are offered by others: economists, anthropologists, and now even social psychologists, who attribute a key role in the interpretation of the world to the transformations of legal institutions. 1 Some of us acknowledge these and other shortcomings in our own fields, yet we tend to advise others how to go about addressing these issues rather than personally engaging in the work. For more than three decades, however, Whitman has been offering 'grand theories,' ie, interpretations of major historical and social phenomena, demonstrating that the contribution of legal history can still be fundamental to understanding social transformations: on dignity, on the status of persons, on the responsibility of the judge, on the ambiguous relationship between libertarian and capitalist ideologies in twentieth-century America. Now he addresses the immense problem of property rights in Western legal consciousness in his latest book, which is being published as I write this article.
    • What's Wrong With Not Apologizing: International Apologies and the Rule of Law

      Blum, Gabriella (Yale Journal of Law & the Humanities, 2024)
      International apologies, like domestic apologies, can serve a wide array of goals. They can express contrition, regret, empathy and care, reduce friction, and restore relationships. Of course, the realization of these goals depends, to a great extent, on the form and sincerity of the apology: how it is conveyed and how it is received. Importantly, however, and perhaps less dependent on the vagaries of any particular form of apology or its delivery, apologies also serve to reinforce underlying norms and expectations. An apology is a response to a failure to comply with generally accepted norms or meet legitimate expectations: Either the conduct, and/or its consequences, are to be avoided. Unlike most domestic law, international law recognizes apologies as a formal remedy for wrongdoing by states. Together with expressions of regret or acknowledgements of breaches, apologies are enumerated as a type of remedy known as" satisfaction." And, with the explicit recognition of apologies as remedies for wrongs, international law seems to bolster the role of apologies in reinforcing the underlying norms and expectations of international relations.
    • The Founders' Common-Law Empire

      Burset, Christian R. (Yale Journal of Law & the Humanities, 2024)
      The Northwest Ordinance of 1787 once had a sure spot in our constitutional canon. The New Deal Congress celebrated it as" one of the greatest civil documents of all time," in part because it marked" a complete change in the method of governing new communities formed by colonization." Rejecting the European model of" second-class colonies," the Ordinance instead framed an" empire of liberty" that treated old states and new territories as equals. That view still has prominent defenders: Professor Akhil Amar" celebrates" the Ordinance's" strong anti-imperialist thrust," while Judge Sutton would put it" on a Mount Rushmore of American laws."
    • The Case of the Boar That Fell Into the Trap (Digest 41.1.55)

      Donahue, Charles Jr. (Yale Journal of Law & the Humanities, 2024)
      Proculus was a Roman jurist and law-teacher of the mid-first century CE, who was much respected and cited by later jurists. Relatively little survives of his writings, but there are thirty-three extracts from his Letters that Justinian's compilers placed in the Digest, including the one just quoted. Many of the extracts are abridged, but enough of them have the original form that the structure of the work is clear. Someone asks Proculus a question normally using some form of the verb quaerere ("I ask," in the translation). Proculus' answer is usually marked with some form of the verb respondere (''the answer given was," in the translation). The questions often have multiple parts, as does Digest 41.1.55. Proculus always answers the question or questions in the order presented, normally in a quite oracular fashion. That is characteristic of all the extracts except for this one. This one begins with a series of distinctions, beginning with "let us see" in the quotation. Proculus uses none of these distinctions in the answers that he gives to the questions.
    • Sacrificial Punishment and the Penal Comedy of Innocence: Unveiling Family Resemblances Between Sacrifice and Criminal Law with James Whitman

      Van Damme, R. (Yale Journal of Law & the Humanities, 2024)
      In this paper, I will adduce a number of important arguments to prove the existence of a nexus between sacrifice and punishment. In order to achieve this objective, I will base my approach on the anthropology of religion, in the sense that I will take sacrifice as the conceptual lens or hermeneutical prism through which to observe and, more importantly, redescribe the history of criminal law from around the later Middle Ages until the fall of the ancien regime. In doing so, ample proof can be unearthed that an unmistakable sacrificial dimension pervades criminal history, at points becoming so tangible that the existence of a phenomenon I propose to call penal sacrifice or sacrificial punishment-ie a punishment that is for a variety of reasons to be situated on the threshold of indifference between sacrifice and punishment-is, at least to my mind, difficult to deny. The strength of my case, now, is to a considerable extent determined by the work of James Whitman. When one is out to trace the family resemblances between sacrifice and punishment, Whitman is remarkably" good to think with"-to use a celebrated Levi-Straussian expression. 2 In fact, some of the most telling structural parallels between criminal law and sacrifice I uncovered were virtually presented to me on a silver platter in Whitman's writings.
    • Rules vs. Stories: Weighing the Ancient Athenian Approach to Procedural Justice

      Lanni, Adriaan (Yale Journal of Law & the Humanities, 2024)
      In his 2006 article," Presumption of Innocence or Presumption of Mercy?: Weighing Two Modes of Justice," James Whitman contrasts the focus on rights for the innocent in the American criminal justice system with the concern for the humane treatment of the guilty in European systems in the inquisitorial tradition. I teach this article in my criminal procedure classes not to debate whether the European approach is better, but because it invites a conversation about what we should value in a criminal justice system and to what extent our system does (or in most cases does not) live up to our values. As Whitman states in his conclusion," The point of comparative law is not to engineer wholesale institutional transplants, but to broaden the mind-to help us escape the conceptual cage of our own tradition." It is in this spirit that I want to examine the classical Athenians' approach to criminal trials. A few words of background may be helpful for those unfamiliar with Athenian law. 3 Participation in the popular court system was largely limited to male citizens. The system was run by amateurs; there was typically no state prosecutor. In what the Athenians called private cases (dikai), the victim (or his family in the case of murder) brought suit. In addition to homicide, private suits included some forms of battery and theft. Public cases (graphai) could be brought by any male citizen acting as a volunteer prosecutor, though in practice prosecutors in public cases tended to be victims or otherwise interested parties. Although the Athenians did not have a distinct legal category of crime, they did have a cultural notion of crime as behavior affecting the community at large." Criminal" behavior could be prosecuted through either a private or public suit, depending not only on the nature of the charges but also in some cases on the prosecutor's goals.
    • Roman Law and the Narratives of European Legal History

      Tuori, Kaius (Yale Journal of Law & the Humanities, 2024)
      Sometimes one sees things clearer from afar. Some years ago, James Q. Whitman published a remarkable article, evocatively titled" Long live the hatred of Roman law!" In it, he traced the long history of animosity towards Roman law in European culture, from the Middle Ages to the Nazis, discussing the various reasons why Roman law has been attacked by opponents ranging from theologians, lawyers and political leaders as being against the Christian faith, as being foreign, capitalistic, against morality and public good. He argues pointedly that the" hatred of Roman law was, in fact, a constant of western history until 1945." 1 What has been most remarkable is the extent in which similar claims, that Roman law promotes greed, unrestrained capitalism or other vices, have circulated throughout its history. In these often nationalistic narratives about law and what should constitute law, Roman law was presented as an alien and immoral monster, which sought to destroy all that is good and proper. According to these stories, Roman law promoted property absolutism that was considered offensive to theologians, political absolutism that was offensive to everyone except the princes, who adored the example of" princeps legibus solutus", and law that was materialistic and individualistic and thus offensive to the common people and their customs, as mainly characterized by nineteenth century Romantic authors in Germany and their Nazi followers. The latest would even codify their hatred of Roman law in point 19 of the Nazi party program (1920), which would call for the eradication of materialistic Roman law.
    • Race, Rules, Reproduction: Lausanne Legal Modernists, Left and Right

      Schmidt, Katharina Isabel (Yale Journal of Law & the Humanities, 2024)
      In the spring of 1908, Berlin's Tugliche Rundschau made alarming allegations: German youngsters studying in Switzerland were at risk of ideological capture. Conditions at Lausanne were particularly worrisome, as faculty there, first and foremost Berlin-born jurist Theodor Sternberg, had started preaching" socialist-democratic-nihilist" ideas to imperial exchange students. Lest Lausanne's Germans should rebel, the anonymous author exhorted, the Empire had to intervene. Indignation surged across French-speaking Switzerland, and columnists at the Gazette de Lausanne put a new spin on the case. The Romandie, they insisted, was no anarchist bastion. Instead, disgruntled law professor Ludwig Kuhlenbeck had tried to throw mud at the city and its university. The conservative German jurist was having a hard time in libertine Lausanne.
    • "Natural Hierarchies"

      Zhang, Taisu (Yale Journal of Law & the Humanities, 2024)
      This essay examines the socioeconomics of status hierarchies: how they respond to external demands, and how, in terms of institutional structure, they make themselves socially usable and durable. It asks whether there are, in some sense, "natural hierarchies"-hierarchies that will almost always emerge in sophisticated societies, regardless of sociopolitical or economic conditions. It highlights adaptability as the central functional feature that makes status rankings durable, and employs this measure to identify two kinds of "natural hierarchies": wealth and seniority. Between the two, the former has drawn the lion's share of political and intellectual attention, but the latter possesses similar functional advantages, and is likely just as pervasive across human societies, historical and modem. Like wealth hierarchies, seniority hierarchies also serve as generally useful proxies for most attributes that societies commonly value, are also relatively easy to use, and avoid direct normative conflict with most sociopolitical value systems even more adeptly than wealth hierarchies do. The term "natural hierarchy" is employed here in a purely descriptive sense, without any normative connotations whatsoever.
    • Law and Political Power Structure: Justice in Early Imperial China and Rome

      Wang, Zhiqiang (Yale Journal of Law & the Humanities, 2024)
      Law and politics are closely related. The differences and changes in political factors have direct and profound impacts on law. As a fundamental political element, the political power structure basically has two typical forms, namely, a centralized system and a decentralized system. A centralized system means concentration of political power in both horizontal and vertical dimensions: horizontally, power is held in the hands of chief officials, while vertically, in the central government. By contrast, in a decentralized system, power is dispersed in a manner of pluralism in both dimensions. Through an empirical study of the history of early imperial law, this article compares the different facets of the judicial process that were under the influence of these two typical forms of power structure in ancient societies, tests the thesis in various forms, and thus explains the close relationship between law and politics. The Chinese Qin-Han and Roman Empires co-existed and developed in parallel at the two ends of the Eurasia continent, leaving remarkable legacies on human civilizations, including political and legal systems. Meanwhile, the Roman regime, especially during its imperial period, covers a vast territory comparable to that of early imperial China and shares similarities in terms of size, population, and level of economic development. Therefore, these two systems are ideally comparable in the analysis of causation between politics and law as it is easier to control variables by excluding potential influences from factors other than the political system, which is presumably a key variable in this study.