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This article sketches the socio-legal creation, use, and regulation of informants in the Black community during slavery and the Black community’s response at that time. Despite potentially creating benefits such as crime control and sentence reduction, some Blacks today are convinced that cooperation with government investigations and prosecutions should be avoided. One factor contributing to this perspective is America’s reliance on Black informants to police and socially control Blacks during slavery, the Civil Rights Movement, and the Wars on Drugs, Crime and Gangs. Notwithstanding this historical justification for non-cooperation, only a few informant law and policy scholars have examined closely the Black community’s relationship with informing. Furthermore, even among this small group of works, noticeably absent are historical explorations of Black America’s experience with informing during slavery. Drawn using a variety of primary and secondary historical and legal sources, this article develops a snapshot of the past revealing many similarities between the Black experience with informing both while enslaved and in contemporary times. Consideration of these resemblances during present debate on the topic may help to facilitate nuanced conversation as to whether and how the modern Black community and government should approach using informants in current times.
The Department of International Studies in the School of Global and International Studies, College of Arts and Sciences, Indiana University, invites applications for a senior position in human rights, to begin August 2014. Qualified full and advanced associate professors are encouraged to apply, particularly those working in the areas of philosophy, history, political theory, cultural anthropology, cultural studies, or critical and/or public interest approaches to law (Ph.D. required). Candidates should have an outstanding research record with commensurate undergraduate and graduate teaching and mentorship, along with a commitment to studying global imperatives, structures, and formations alongside regional, linguistic, historical, political, and cultural particularities.For more information, follow the link.
We tend to treat the idea of property as if it is a neutral way to speak about the relationship between people and things. In comparative legal studies, it is easier to compare two different cultures’ approaches to people and things when we assume that both can usefully be spoken of in terms of property. But property has a history. Terms like proprietas and possessio, which give the modern common law a vocabulary for speaking about that relationship, arose in the context of the classical Roman law and were worked into a systematic language of property by medieval Roman law scholars. The early common law, however, did not use the language of property to describe the relationship between people and things.
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In this paper, I will examine the period when English justices first attempted to turn English norms and practices concerning landholding into a law of property. Between 1187 and 1258, several justices tried their hands at writing treatises in which they translated English court practices into a systematic property law on the Roman model. The justices of the twelfth and thirteenth centuries, particularly the justices who wrote the treatise known as Bracton, were heavily invested in the idea that English law was part of the Romano-canonical ius commune. They realized, however, that the practices of the English courts and the landholding norms of the Anglo-Norman landed elite could not be made to fit neatly into a Roman law mold. The authors of Bracton embarked upon what we might consider an early exercise in comparative law scholarship. They created several complicated and contradictory schemes to try to express English landholding in Roman law terms, but ultimately failed in their attempts to create a coherent English law of property. Their failure is useful to us, however, in that it shows us very clearly that the language of property is not natural or essential and in that it helps us to understand a way of talking and thinking about landholding that is alien to us today. We can use the ways the Bracton authors creatively misunderstood the Roman law of property to help us to understand the cultures of landholding they came from: those of the English courts and the Anglo-Norman landed elite of the twelfth and thirteenth centuries.The second is English Judges and Roman Jurists: The Civilian Learning Behind England's First Case Law, which appeared in Temple Law Review 84 (2012):
This Article looks at a historical problem — the first use of case law by English royal justices in the thirteenth century — and makes it a starting point for thinking about the ways legal reasoning works in the modern common law. In the first Part of the Article, I show that, at its origin, the English justices’ use of decided cases as a source of law was inspired by the work civil and canon law scholars were doing with written authorities in the medieval universities. In an attempt to make the case that English law was on par with civil law and canon law, the justices and clerks of the royal courts began to treat cases as if they were the opinions of great jurists, to apply the same types of dialectical reasoning that were used in civil law discourse to those cases, and to work them into systems of authority. They used cases, as the modern common law does; but they used cases to create systems of the kind we usually associate with civil law. In the second Part of the Article, I turn to the modern common law and, using the methods of medieval case law as a mirror, show that the differences between civil law and common law reasoning are more perceived than real. American lawyers tend to view common law as flexible and creative, whereas they view civil law as ossified and hierarchical. This largely stems from the fact that common lawyers focus on the judicial opinion as the place where legal reasoning takes place. By integrating other texts, like the student outline and the restatement — which seek to create a harmonious system out of judicial opinions — into the picture of common law reasoning, I show that common law reasoning shares quite a bit in common with civil law reasoning.
This article traces the historical development of the Clean Hands Doctrine (CHD), and its ancillary accepted affirmative (obscenity) defense in copyright infringement, and its residual application to pornographic works. As an equitable doctrine, the CHD was an entirely reasonable judicial response to the earliest statutory provision of copyright protection in the early 18th century in England as applied to different forms of literary property and in particular those suspected of having seditious, blasphemous and immoral tendencies. With no statutory guidance regarding substantive (or content) restrictions on extending copyright protection to literary property and generally reticent to rule on a completely discretionary basis, the Chancery court relied on established equitable maxims or principles as ratio for individual rulings, in the process developing an ersatz structure of procedural precedent. In the process, it sequestered content as a procedural issue deferred to law prior to any equitable consideration, leaving unresolved the more substantive issue of whether all works of literary property were eligible for copyright protection, or differentially when and in what forms could literary works be accorded protection.The full article is available here, at SSRN.
The CHD, and more specifically the obscenity defense, was adopted wholesale and with little consideration into American jurisprudence in the 19th century, on occasion nuanced by historical debate over the meaning and intent of the Copyright Clause. Subsequent American statutory delineations for copyright protection, after a few nascent efforts to restrict eligibility to only those works that were original and informative, retreated to a marked absence of discussion of content, throwing judicial consideration of copyright protection almost entirely onto procedural issues, such as registration. By the latter part of the century, courts began to sporadically differentiate between the substantive and procedural elements of the CHD, the former spawning a transforming debate over doctrinal acceptance of the 1868 Hicklin test of obscene tendency and the latter focusing more narrowly the discretionary authority to the Register of Copyrights to reject works of certain content. I argue that this differentiation, and the subsequent obfuscation of obscenity standards resulting from a range of cases leading to and built upon Roth v. U.S. (1957), inevitably led to the appellate ruling in Mitchell Brothers v. Cinema Adult Theater (1979), now generally considered accepted doctrine, that the CHD does not support a substantive exclusion of selected content from copyright protection.
This is a crucially important time for the United States—a number of foreign intelligence gathering programs using new technologies have recently been unveiled, and the public, the media, and scholars are just beginning to address their implications. Part one of this three-part discussion series will focus on the 1975-76 Church Committee (formally known as the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities), which exposed government surveillance abuses and played a key role in the creation of the Foreign Intelligence Surveillance Act. Following the keynote address by Senator Leahy, an esteemed panel of former Church Committee members and top staff will discuss this turning point in American history.The keynote and panel will take place on Tuesday, September 24, 2013, from 9:45 a.m. to 12:00 p.m., in the Hart Auditorium, McDonough Hall, Georgetown University Law Center, 600 New Jersey Avenue, NW, Washington, D.C. 20001.
