Jenkins on Copyright Law and Political Theology

Joseph S. Jenkins (U. of California, Irvine) has posted Copyright Law and Political Theology: Censorship and the Forebear’s Desire. The abstract follows. NB: The article is behind a paywall on JStor.

This historical exploration, treating limit moments of copyright law, illuminates correspondences among copyright, censorship, pacts between the sovereign and commercial profit seekers, and inheritance law. Relevant to all of these are powerful forebears’ desires for recognition, modeled on the theological pattern of the father God’s omnipotent Will. Failure to recognize the wide persistence of this premodern theological pattern–which contrasts considerably with the common view that copyrights main function is to incentivize the new–may result in faulty analysis of copyright law, including fair use.

The study begins with Henry VIII’s 1538 Proclamation, which initiates a nationwide book-licensing regime. The Proclamation is put into context with other concerns of Henry at that time. Additional moments treated in this study include: Venetian printing privileges in the late fifteenth century; the London Stationers’ Company as an incorporated mechanism suitable to the crown’s ideology-control projects; efforts by Ponsonby, Greville, and Walsingham to block a competitor’s licensing of a Sidney Arcadia manuscript; the intellectual property clause of the U.S. Constitution; Wordsworth’s later-in-life attempts to make endure eternally, through copyright, the atemporal moment of creation that arose from his early poetry; and Sonny Bono’s (and our own) surprising resemblance to Wordsworth. The conclusion urges joint consideration of copyright and inheritance-law policies.

Mohammedi on Sharia-Compliant Wills

Omar T. Mohammedi (Fordham U. School of Law) has posted Sharia-Compliant Wills: Principles, Recognition, and Enforcement. The abstract follows.

Remembrance of death and the afterlife is a cornerstone of the Islamic ethos. Planning for death by ensuring a distribution of one’s estate in accordance with Islamic Sharia law is obligatory upon all Muslims wishing to comply with their religious obligations. Thus, when it comes to inheritance, many Muslims living in the United States must make the necessary arrangements to ensure that their legacy will pass under the precepts of Sharia law while also maintaining compliance with state law. As Muslim populations across the United States continue to expand, practitioners in the field will face new, interesting dilemmas and challenges. Due to its complexity and differences with the established legal theories of intestacy laws in the United States, Islamic inheritance law proves to be an engaging and important subject.

In ensuring that Sharia-compliant wills that are also in line with state law, practitioners will likely face certain challenges. This article seeks to identify and address such challenges. There are three major areas where these challenges come to the forefront: basic conflicts between U.S. intestacy laws and Islamic inheritance laws; conflicts with the Establishment Clause of the First Amendment of the U.S. Constitution; and potential public policy conflicts arising from the enforcement of certain interpretations of Sharia law.

First, this article will provide an overview of Islamic inheritance laws. It will then compare such laws with U.S. intestacy laws and subsequently discuss how the two might be synthesized and reconciled to satisfy both bodies of law. This article then presents recommendations on how the aforementioned conflicts may be addressed to comply with both Sharia and U.S. law while avoiding Establishment Clause issues. Finally, this article hopes to demonstrate the extent to which a Sharia-compliant may be enforceable in U.S. courts.

Religion, Testamentary Documents, & End-of-Life Decisions

Wendy S. Goffe, an attorney in trusts and estates at Graham & Dunn PC in Seattle, has published Should I Stay or Should I Go? What Religion Says About Pulling the Plug,  a short piece detailing the ways in which religious convictions can affect end-of-life decisions.  The article addresses the potential religious obstacles that arise when, say, a believer drafts a living will.  For example, to insist doctors  not resort to extraordinary measures may or may not be religiously permissible. (How the title’s reference to The Clash’s hit single—a song describing confusion in a romantic relationship—from their 1982 album Combat Rock, informs this topic is a small mystery.)

The article also addresses the religious dilemmas that might face bereaved families whose loved ones have not left behind clear instructions as to what to do should they become brain dead, or even how to dispose of their bodies in the event of death—an often religiously fraught question.  Absent clear direction, families may be powerless to make the decisions they know the injured person would have preferred—or that, according to their own beliefs, they would prefer.  Even more complications can arise when end-of-life issues encounter religious belief—some of these are detailed in the abstract, which follows the jump.  Likewise, you can read the article in its entirety at here.

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