August 4, 2015

What the Law Is

Andrew Tutt, Yale University Law School & Information Society Project, has published Legal Agreement at 48 Akron Law Review 215 (2015). Here is the abstract.
Widespread agreement about "what the law is" is often held out as among the most powerful arguments in favor of Legal Positivism. Its power as an argument is thought to be two-fold. First, Positivism is said to readily explain why such agreement exists. Second, it is argued that no other theory of law explains legal agreement just as well, or even very well at all. The argument from widespread or "massive" agreement invites a critical inquiry. What does it mean to say that two or more people agree about what the law is? Does there really exist such massive agreement? Does its existence really strike a decisive blow for Legal Positivism? This Article examines the range of things we might mean when we say that people agree about what the law is. In doing so, it shows that many confusions and apparent disagreements about the concept of law are clouded by unstated but often serious differences in understanding what it means to agree. This Article concludes that the argument from widespread agreement is misguided because the nature of legal agreement is ambiguous. Very often, apparent agreement about the law is not agreement of the meaningful sort necessary to bolster the case for Legal Positivism or, indeed, any theory of law. For that reason, the argument from agreement makes little difference to theory choice in this domain. If anything, the existence of such ambiguous agreement would seem to cut against Legal Positivism's claims, which appear to require widespread agreement of a sort rarely observed in practice.
Download the article from SSRN at the link.

"The Great Writ" and the American Revolution

Amanda L. Tyler, University of California, Berkeley, School of Law, is publishing Habeas Corpus and the American Revolution in volume 103 of the California Law Review (2015). Here is the abstract.
Modern debates concerning the protections afforded by the Suspension Clause of the U.S. Constitution have taken place within the Supreme Court’s chosen methodological approach in this context, which openly calls for careful attention to the historical backdrop against which the Clause was drafted. This approach is hardly surprising given that long ago Chief Justice John Marshall declared that when the Founding generation constitutionalized “this great writ,” they invoked “[t]he the [C]onstitution, as one which was well understood.” No matter how well the Founding generation understood the content, reach, and application of the “privilege of the writ of habeas corpus,” however, significant portions of the relevant historical backdrop to the ratification of the Suspension Clause remain lost to the annals of history. In particular, the details surrounding one of the most consequential periods in the history leading up to the adoption of the Suspension Clause — namely, the treatment and legal classification of the American colonists by the British during the American Revolutionary War — remain largely unexplored in legal scholarship. Professor Tyler seeks to recover and tell this story here by drawing upon a wealth of sources, including: archival documents, parliamentary debates, contemporary press accounts, colonial papers, diaries and private papers of key participants, and significant decisions and rulings of the British courts. As these materials reveal, determinations regarding the reach and application of the English Habeas Corpus Act of 1679, rather than solely the common law writ of habeas corpus, were of tremendous consequence during this important period in Anglo-American legal history. Where the Act was in force and where prisoners could claim its protections, the legal framework demanded that such persons be charged criminally and tried in due course or otherwise be discharged. Significantly, the privilege associated with the English Act did not speak merely to process; it further imposed significant substantive constraints on what causes would be deemed legal justification for detention in the first instance. The important role that the Act played in the Revolutionary War legal framework, moreover, suggests that modern jurisprudence has underappreciated the Act’s enormous influence upon the development of habeas law in the Anglo-American tradition. Finally, the history recovered here demonstrates more generally that during the Revolutionary War, suspension, geography, and allegiance each played significant roles in determining the availability of the privilege of the writ of habeas corpus to those who would claim its protections.
Download the article from SSRN at the link.

The Role of Law Schools In Creating Social Change

Jonathan Rapping, Atlanta's John Marshall Law School, has published Grooming Tomorrow's Change Agents: The Role of Law Schools in Helping to Create a Just Society. Here is the abstract.
Numerous authorities have lamented the fact that America’s criminal justice system is broken. To address this crisis, experts have proposed a range of policy proscriptions. But these proposals overlook a fundamental driver of this state of injustice. The criminal justice system as it now exists is defined by a value system inconsistent with justice. And many professionals responsible for administering criminal justice – politicians, judges, prosecutors, and defense counsel – have been shaped by this corrupted value system. As a result, those responsible for justice in America frequently promote unjust outcomes. If we are ever to realize meaningful reform, we must groom a generation of professionals who embrace those ideals fundamental to American justice, and work together to infuse the criminal justice system with these values. Because so many of these professionals are lawyers, our nation’s law schools must play an indispensable role in this effort. Critics have identified some significant shortcomings in legal education. Many have pointed to the failure of law schools to teach skills and values essential to the practice of law. Some have urged law schools to inspire graduates to find careers that promote the public interest. But largely overlooked is the need to equip lawyers with strategies to promote justice in broken systems. If law schools are going to fulfil their obligation to help us realize our most noble ideals, they must develop curricula designed to not only teach lawyers values and motivate them towards social justice careers; but to also arm them with tools to resist systems hostile to the principles that define us as a nation. This article discusses this challenge and examines two efforts to equip young lawyers with tools and strategies to become the change agents necessary to drive reform; one through an innovative law school curricula and the other through the training and mentoring of lawyers post law school in the crucial arena of indigent defense.
Download the article from SSRN at the link.

August 3, 2015

A Book on Crime, Law, and Popular Culture in Europe From the Early Renaissance To the Modern Era

ICYMI: Richard McMahon has edited the collection Crime, Law and Popular Culture in Europe, 1500-1900 (Routledge, 2013). Here are the description and table of contents from the publisher's website.
This book explores the relationship between crime, law and popular culture in Europe from the sixteenth century onwards. How was crime understood and dealt with by ordinary people and to what degree did they resort to or reject the official law and criminal justice system as a means of dealing with different forms of criminal activity?

Introduction, Richard Mc Mahon 1. Popular Violence and its prosecution in seventeenth- and eighteenth-century France, Julius R. Ruff 2. The containment of violence in Central European cities, 1500-1800, Joachim Eibach 3. Royal Justice, popular culture and violence: homicide in sixteenth- and seventeenth-century Castile, Rudy Chaulet 4. Prosecution and public participation - the case of early modern Sweden, Maria Kaspersson 5. Towards a legal anthropology of the early modern Isle of Man, J.A. Sharpe 6. 'For fear of the vengeance': the prosecution of homicide in pre-Famine and Famine Ireland, Richard Mc Mahon 7. Violent crime and the public weal in England, 1700-1900, Greg T. Smith 8. Atonement and domestic homicide in late Victorian Scotland, Carolyn A. Conley 9. 'A second Ireland'? Crime and popular culture in nineteenth-century Wales, Richard W. Ireland Index

A Review of Sarah Roth's "Gender and Race"

Alfred L. Brophy, University of North Carolina, Chapel Hill, School of Law, is publishing Antislavery Women and the Origins of American Jurisprudence in the Texas Law Review. Here is the abstract.
“Antislavery Women and the Origins of American Jurisprudence" is an essay review of Sarah Roth's Gender and Race in Antebellum Popular Culture (Cambridge University Press, 2014). It assesses Roth's account of the dialog between antislavery and proslavery writers. Roth finds that the antislavery and proslavery writers were joined in their depiction of enslaved people in the 1820s and early 1830s -- as savage people who threatened rebellion. But as antislavery writers shifted to portray enslaved people as humble citizens-in-waiting, the proslavery writers responded with an image of the plantation as a family. This critique turns to southern judges and treatise writers to provide a slightly different picture, which shows that while the public face of the proslavery movement may have been of happy enslaved people, the hard-nosed economic and legal side continued with the initial image of enslaved people. This became particularly salient as the south moved towards Civil War. Roth perceptively portrays the shift in the North that led to increasing calls for African American freedom and citizenship and the rise of empirical critiques of law, which became central to post-war jurisprudence. That is, the antislavery white women in Roth's study injected empirical as well as humanitarian considerations into jurisprudence. Meanwhile, in the southern courts the reaction to calls for citizenship resulted in increasingly dramatic efforts to deny citizenship -- and ultimately in a secession movement along the lines sketched by southern legal thinkers.
Download the review from SSRN at the link.

Law, Zombies, and Legal Education

Thomas E. Simmons, University of South Dakota School of Law, has published What Zombies Can Teach Law Students: Popular Text Inclusion in Law and Literature at 66 Mercer Law Review 729 (2015). Here is the abstract.
Although law and literature studies scholars have typically restricted themselves to the study of great (or at least greater) works of traditional literature, the inclusion of lesser texts has distinct advantages to recommend it. Comic books and television series can be subjected to a law and literature approach and zombie texts are particularly rich narratives for the exploration of legal tensions, competing values, and institutions. The Walking Dead as a television and comic book series provides a finely textured setting within which property law, euthanasia, civil commitments, contrasting decision-making paradigms and the value of procedural formalities are assessed and illuminated. This article suggests several opportunities which utilize zombie texts to advance an understanding of the law within the law school curricula including but not limited to law and literature courses.
Download the article from SSRN at the link.

August 2, 2015

Lawyer/Parodist Entertainers at the ABA Bar Association Annual Meeting

The ABA made certain that CLE was more fun than usual at this year's Annual Meeting by inviting Ethics Follies, a group of lawyer/musicians from Texas who put legal ethics to music, to perform. The group put on an entertainment called Scamalot, inspired by (of course) Monty Python's Spamalot (but by not the legendary luncheon meat, we're sure...). There's serious stuff amid the frivolity: "The Holy Grail means the ethical treatment of our clients and each other,” says one of the characters.

Well, we knew a lot of lawyers are hams underneath. (Sorry....)  More here from the ABA Journal.

July 30, 2015

A New Book On Law and Literature

Our good friend Jose Calvo Gonzalez tells us of a newly published book on law and literature. Os Modelos de Juiz: Ensaios de Direito e Literatura (André Karam Trindade e Lenio Luiz Streck, eds., Editora Atlas, São Paulo, 2015) is now available. Lots of interesting essays in this volume, including pieces on Tolstoy and Law, theoretical pieces on judging, and pieces on Brecht, Hamlet and The Merchant of Venice. More information is available at Professor Calvo's blog here.

Appropriation, Mark Twain Style

Via @ArsScripta 

Andrew Newman, Stony Brook University, and Brandi So (PhD, Stony Brook, University) have published “It Couldn’t Be Robbery To Steal That”: Artistic Appropriation and Twain's "Jumping Frog."  at 42 College Literature 396 (Summer 2015). Here is the abstract. 

In “The Private History of the ‘Jumping Frog’ Story” (1894), Mark Twain prefaces his account of the provenance of the famous story that launched his career with two anecdotes about artistic theft. Rereading the “Jumping Frog” in light of these anecdotes and the theory of originality Twain espouses in the “Private History,” this essay disputes the widespread interpretation that credits the internal, vernacular narrator, Simon Wheeler, with a subversive deadpan humor. On the contrary, this frame necessarily identifies the fictional Wheeler as a genuine simpleton. Twain similarly framed his historical source for the “Jumping Frog” story; his possession accrued not from exercising artistic originality but through publication and accreditation.
Download the article from Project Muse at the link. Tip of the beret to Simon Stern via @ArsScripta.

July 29, 2015

Before Ferguson

Rigel Christine Oliveri, University of Missouri School of Law (Columbia), is publishing Setting the Stage for Ferguson: Housing Discrimination and Segregation in St. Louis in the Missouri Law Review. Here is the abstract.
The events of fall 2014 in Ferguson, MO (the shooting death of Michael Brown by a white police officer and the subsequent protests and riots), have been examined from many angles – the policing of minority communities, the militarized police response to peaceful protests, the poor schools and job prospects for young people like Mr. Brown, etc… This paper adds another factor to the analysis: housing discrimination. St. Louis is one of the most segregated places in the country and this is not an accident. The history of St. Louis is replete with discriminatory housing laws, policies, and practices. While these were common throughout the United States, they were particularly egregious, widespread, and pervasive in industrial mid-western cities like St. Louis. St. Louis, in fact, was where three of fair housing law’s most foundational fair housing cases emerged from: Shelly v. Kraemer, which held that racially restrictive covenants could not be enforced by courts; Jones v. Mayer, which held that private acts of race discrimination in housing were prohibited by the Civil Rights Act; and United States v. City of Black Jack, which recognized the use of disparate impact theory in fair housing cases. When we look closely at these cases – not just the legal principles that they established but the physical, racial geography of the homes, neighborhoods, and cities that were contested – we can see how they reflected the racist forces that shaped the reality of modern metropolitan St. Louis. This paper traces the history of housing discrimination in the St. Louis metro area using these cases as a framework, concluding with a discussion of how these historical forces resonate in contemporary Ferguson. The paper concludes with suggestions for reforms that might help undo what a century’s worth of officially sanctioned discrimination and segregation have wrought.
Download the article from SSRN at the link.

The Supreme Court and the Extraterrorial Application of State Law, 1850-1940

Clyde S. Spillenger, University of California, Los Angeles, School of Law, has published Risk Regulation, Extraterritoriality, and Domicile: The Constitutionalization of American Choice of Law, 1850-1940 in volume 62 of the UCLA Law Review. Here is the abstract.
This Article examines the developments leading to the U.S. Supreme Court’s decisions in the 1930s that legitimated the extraterritorial application of state law in civil litigation. Today, these decisions are thought of as having established the basic constitutional limitations on choice-of-law rulings by state courts. But they are better understood as the culmination of an historical process in which the Court first proscribed the extraterritorial application of statutory rules of decision, and then, as the economic relevance of state boundaries receded and the regulatory function of state-created rules of decision increased in importance, emphatically retreated from that position. The 1930s decisions led to a new conception of choice of law in which a party’s domicile — in particular, the state’s power to apply its rules of decision to protect or regulate its own — came to play as important a role as the territorial locus of particular events in resolving conflicts of laws. This conception, which remains central to much of modern conflicts law, contrasts sharply with the Court’s unwillingness (reinforced by recent decisions) to take domiciliary interests into account when determining the constitutional limitations on personal jurisdiction. Before the Civil War, the jurisprudence of conflict of laws did not, by and large, credit the possibility that the Constitution limited a court’s power to apply forum law to a dispute. Since the rules of decision applicable in antebellum private-law litigation were largely based on common law and other nonmunicipal sources of law, there was little occasion for invoking the Full Faith and Credit Clause as a limitation on state courts’ application of lex loci principles. The key development in altering this conception was the enactment, beginning in the 1850s, of state statutes altering or creating rules of decision for certain kinds of civil litigation. These statutes — in particular, the wrongful death statutes and the later employers’ liability acts — were largely directed to the increasing risk of catastrophic injury and loss in an industrializing society. State courts confronting the multijurisdictional problems raised by these statutes concluded that they could not be applied extraterritorially — that is, to injuries incurred outside the state where they had been enacted. The Supreme Court showed little interest in the issue of extraterritoriality until some states began to enact regulations protecting local policyholders from forfeiture provisions in the life insurance policies issued by the major insurers in the Northeast. The Court in 1914 and 1918 struck down as unconstitutional the application by Missouri courts of the state’s protective statutes to insurance agreements deemed to have been made outside of Missouri. Thus a proscription of extraterritoriality, married to the then-prevailing doctrine of liberty of contract, briefly entered the law of the Constitution. These principles concerning extraterritoriality, based as they were on the formalist notion that only one state has regulatory authority over a given event or transaction, were undermined by the widespread enactment of workers’ compensation laws. In the three 1930s cases considering the legitimate scope of such compensation statutes, Justice Stone (building on earlier opinions authored by Justice Brandeis) decisively affirmed the authority of a state to apply its workers’ compensation statute to injuries suffered outside the state. At a stroke, these decisions interred the idea that only one state has regulatory authority over a given event or transaction; eliminated the relevance of extraterritoriality as a touchstone for constitutional analysis of state courts’ authority to apply forum law in civil lawsuits; and provided crucial support for an emerging model of conflict of laws in which state interests — most notably, a concern for state domiciliaries — supplanted territoriality per se as the principal consideration.
Download the article from SSRN at the link.

July 28, 2015

Dr Seuss and Academia

Sometimes I think we in academia might possibly take pop culture too seriously, as when we study Dr. Seuss for his political and environmental influence.  But then I remember that my co-authors and I cited The Cat In the Hat in the footnote of an article a while back (see p. 1074, fn. 181). Never mind.

Rethinking Atticus Finch

In the National Law Journal,  some law faculty discuss the character of Atticus Finch in Harper Lee's Go Set a Watchman.

The article begins:

Atticus Finch — unimpeachable lawyer and civil rights champion, or unapologetic racist? Readers have struggled to reconcile these two versions of fiction's most iconic attorney since the July 14 publication of Harper Lee's "Go Set A Watchman," set some 20 years after the events of "To Kill A Mockingbird."

A particularly lively debate broke out within the legal academy, where Finch served as an inspiration for more than a half-century, not to mention a staple of legal ethics courses.

"Over the years, Atticus Finch has remained the most famous, iconic representative of what is good in the legal profession," said Margaret Russell, a ­professor at Santa Clara University School of Law who recommends "Mockingbird" to her students. "My first reaction [to "Watchman"] was, 'Oh no, a hero has fallen.' "

Law professors parsed the new novel on blogs, in op-eds and in conversations with colleagues. Some rejected the Finch presented in "Watchman" — who attended Ku Klux Klan meetings and decries the NAACP — or viewed him as a completely separate character from the Finch in the first novel. Others welcomed a more nuanced and perhaps realistic portrayal of a white attorney in the Jim Crow South.

See also this article, also in the NLJ.

Assessing Feminist Legal Studies: Also Available As a Free Download From Springer Website

Ruth Fletcher's Responding to Submissions and Introducing Issue 23(1), in volume 23 of Feminist Legal Studies (2015), previously blogged here, is also available here as a free download. 

Annual ABA Journal Feature This Year Focuses On One Hundred Years of Lawyers In the Movies

The ABA Journal's annual issue devoted to law and popular culture is out. This year, because the ABA Journal is celebrating its 100th anniversary, the editors of the Journal decided to devote their cover story to a celebration of lawyers in film.

Thane Rosenbaum discusses the role of law and lawyers in film generally, noting that "[f]ootball is America’s game, but movies are its favorite form of entertainment. And movies about the law are as essential to Hollywood history as cowboy Westerns or romantic comedies. Heroism that acquits the falsely accused will hold its own against any nonstop action flick." Further,  the law offers both dramatic interest and thrills. "From Sophocles to Shakespeare, Dostoyevsky to Dickens, John Grisham to Scott Turow, the world’s great poets and dramatists, novelists and film directors have been enamored of the legal system for its plotlines and morality tales. Artists, in fact, are equal opportunity borrowers of justice both delivered and denied. Injustice can ruin a happy ending, but it can also open up possibilities for personal redemption. The literature of law values the object lesson over the cheap thrill. Audiences crave universal truths, and by the time the closing credits roll, movies about the law have left behind wisdom to live by."

The cover story focuses on lawyers in film, but of course we have an additional supporting cast of stories. One involves the ABA Journal's now-traditional vote on the best: in this case, the best of 100 years of films starring lawyer characters, classified by decade.

The jury includes Taunya Banks, Richard Brust, James M. Dedman IV, Bonnie Eskenazi, Daniel Kimmel, Philip Meyer, David Papke, Allen Pusey, Thane Rosenbaum, Diane Waldman, and, oh yes, me, using criteria slightly modified from those I developed for a list of must-see films for law students.

Another interesting piece discusses the influence these films have had on the U.S. public. 
It also mentions other films that did not make the "final cut" for the jury's ballot.  Also included: A gallery of the films mentioned.

Readers can also fill in their own ballots here and/or pitch an idea for a future ABA Journal law and popular feature at the same link.

Martha Nussbaum's Scholarship

New from Ashgate:

Nussbaum and Law (Robin West, ed., 2015) (Philosophers and Law).  Here is a description of the contents from the publisher's website.

The essays collected in this volume reflect the profound impact of Martha Nussbaum’s philosophical writings on law and legal scholarship. The capabilities approach that she has largely authored has influenced the approach scholars take to the law of disabilities, both in the United States and in Canada, as well as to international human rights and to domestic private law’s protections of vulnerable populations. Her analyses of the relationship between our emotions and our thought and action has triggered a re-assessment of the legal regulation and recognition of emotion in a range of fields, most particularly in the field of criminal law; and her writing on the nature of dignity has informed an understanding of the emerging civil rights of gay and lesbian citizens worldwide. Our appreciation of the role of narrative in legal thought and discourse and the contributions of literature to law and legal culture, have also been broadened and deepened by her contributions. Taken together, and including the introduction by the editor, the essays collected in this volume demonstrate the far-reaching impact of Nussbaum’s philosophical oeuvre.
  • Contents: Introduction: towards humanistic jurisprudence. Part I The Capabilities Approach: Disability human rights, Michael Ashley Stein; Martha Nussbaum’s capabilities approach and equality rights for people with disabilities: rethinking the Granovsky decision, Ravi Malhotra; Personal delegations, Alexander A. Boni-Saenz; Animals as vulnerable subjects: beyond interest-convergence, hierarchy, and property, Ani B. Satz; Capabilities and constitutions, Robin West. Part II Law and Emotions: Gender and emotion in criminal law, Katharine K. Baker; Empathy, narrative, and victim impact statements, Susan Bandes; Justice and mercy in the face of excessive suffering: some preliminary thoughts, David Gray. Part III Sexuality, Gender, Feminism and Law: Conferring dignity: the metamorphosis of the legal homosexual, Noa Ben-Asher; Feminism as liberalism: a tribute to the work of Martha Nussbaum, Tracey E. Higgins; Human capabilities and human authorities: a comment on Martha Nussbaum’s Women and Human Development, Robin West. Part IV Law and Literature: Regulatory fictions: on marriage and countermarriage, Elizabeth F. Emens; The city and the poet, Kenji Yoshino. Name index.

  • About the Editor: Robin West is Frederick Haas Professor of Law and Philosophy at the Georgetown University Law Center and Faculty Director of the Georgetown Center for Law and Humanities, where she has taught since 1986. She previously taught at the University of Maryland School of Law from 1986-1991 and the Cleveland-Marshall College of Law from 1982-1985, and served as Visiting Professor at Stanford Law School and Chicago Law School. She has written extensively on gender issues and feminist legal theory, constitutional law and theory, jurisprudence, legal philosophy, and law and humanities.

 Nussbaum and Law

Queen Anne, Justice Scalia, and Originalism

Harold Anthony Lloyd, Wake Forest University School of Law, has published Justice Scalia and Queen Anne in the Huffington Post, July 9, 2015. Here is the abstract.
This article explores problems with several definitions of Originalism proposed by Justice Scalia in "Reading Law: The Interpretation of Legal Texts." It begins by looking at Justice Scalia's citation of a possible statement by Queen Anne that Justice Scalia claims in itself justifies Originalism. Queen Anne may have told Sir Christopher Wren that St. Paul's Cathedral was "awful, artificial, and amusing" at a time when those words meant "awe-inspiring, highly artistic, and thought-provoking." Conceding that one must understand how Queen Anne meant these terms, this article shows how this example actually undermines Originalism when applied to on-going rules. It also explores inconsistencies and problems with several definitions of Originalism including Justice Scalia's arbitrary exclusion of technology from the constraints of "original meaning." It further disputes his claim that Originalism ". . .will narrow the range of acceptable judicial decision-making and acceptable argumentation [and that it] will curb -- even reverse -- the tendency of judges to imbue authoritative texts with their own policy preferences." This article maintains that Originalism has the opposite effect.
Read the article at the link, or download it from SSRN here.

Defining "The People" In Constitutional and Political Theory

Roman J. Hoyos, Southwestern Law School, has published Who are 'the People'?. Here is the abstract.
The question that animates this paper is one that is central to American constitutional history. Curiously, however, the concept “the people” has not been well-studied either by historians or constitutional and political theorists. This problem is not limited to scholarship, it is pervasive throughout our political culture. We constantly debate when the people have spoken, acted, decided, or willed without ever seriously asking who “the people” are. The popular turn in American constitutional theory (sometimes called “popular constitutionalism”) has brought attention back to the concept in a serious way. But as their critics have pointed out, the key concept at the center of the popular turn has gone largely unexamined. The aim of this paper is to examine “the people” as it has been conceptualized in the work of three major theorists of the popular turn — Bruce Ackerman, Akhil Amar, and Larry Kramer. Despite the claims of their critics, it is possible to put their works together in a way that unearths a working, if imprecise, concept of “the people.” This becomes clear when we filter their work through that of German legal and political theorist Carl Schmitt. A controversial figure because of his relationship to the Nazi Party in the early 1930s, Schmitt nevertheless developed a radical democratic theory. A number of Schmitt’s concepts can be seen in the work of Ackerman, Amar and Kramer, despite the fact that only Ackerman has demonstrated any awareness of Schmitt’s work. These concepts — the three moments of democracy, sovereignty, sovereign dictatorship, the constituent power, and acclamation — can help bring greater conceptual clarity to the popular turn. In particular, they help to account for the impression given by the popular turn that the people are seemingly everywhere and nowhere. One of Schmitt’s key interventions was to disaggregate the people in time. In other words, “the people” act differently depending upon the moment of democracy they occupy. In their sovereign moment, outside and above the constituted order, the people exercise their sovereign authority to create a constitution, usually through the mechanism of the sovereign dictatorship (i.e. a constituent assembly). In the second moment, the people act within the constituted order through their legal “competencies” assigned by a constitution, usually through elections and representation. In the third moment of democracy, the people return to a place outside the constituted order, but next to it rather than above. Here, the people rely upon their constituent power not to found a constitutional order but to develop new constitutional norms within it. They accomplish this through opinion creating activities that occur in public, which Schmitt terms “acclamation.” Although they have given some attention to the first moment, the bulk of the popular turn has focused on the people in their third moment. And in some ways they have developed and refined Schmitt’s idea of acclamation further than he did himself. Read through a Schmittian lens, the popular turn gives us a way to read constitutional history that accounts both for origins and change over time, and provides the foundation for an historical, and perhaps democratic, jurisprudence.
Download the article from SSRN at the link.

The Link Between CLS and Marxism

Akbar Rasulov, University of Glasgow School of Law, is publishing CLS and Marxism: A History of an Affair in volume 5 of Transnational Legal Theory (2014). Here is the abstract.
This essay explores the relationship between the Critical Legal Studies movement and the Marxist tradition. What role did Marxism play in the formation of CLS’s ideological and theoretical horizons? What part was it assigned in the movement’s symbolic economy of discursive projects and practices? What sorts of critical challenges did CLS scholars mount against the Marxist legal-theoretic tradition and what kind of broader lessons can the Marxist tradition extract today from those criticisms? The essay starts by summarising the standard account of the relationship between CLS and Marxism that has historically developed within the CLS’s own internal discourse. It problematises a number of basic assumptions underlying this account before turning its attention to the examination of CLS’s (potential) contribution to the development of a new wave of the Marxist legal-theoretic enterprise.
Download the article from SSRN at the link.

Race and the Law

Robin Bradley Kar, University of Illinois College of Law, and John Lindo, University of Chicago Department of Human Genetics, are publishing Race and the Law in the Genomic Age: A Problem for Equal Treatment Under the Law in the Oxford of Handbook on Law and Technology (forthcoming). Here is the abstract.
This is the “Age of Genomics”, and yet people who study race and the law often resist integrating biological insights into their understanding of human psychology and behavior. The historical reasons for this resistance are understandable, but the biological sciences have been undergoing a recent renaissance, which creates a contemporary problem of translation. This article explains why the appropriate response of the law to recent developments in the evolutionary and biological sciences is to recognize that there is more, rather than less, cause for concern with respect to how racial concepts typically function in the law. The short reason is twofold. First, belief in race is prone to function in ways that are far more prejudicial than probative of most issues relevant to criminal or civil liability. Second, racial concepts function automatically and unconsciously, often without racial animus or discriminatory intent. Hence, current equal protection doctrine, which requires a finding of discriminatory intent and is the central legal mechanism for guaranteeing the equal treatment of persons under the law, is poorly suited to guarantee equal treatment. In fact, properly understood, evolutionary and biological paradigms offer support for many of the central empirical claims that critical race theorists have been making about race, law and society for some time now. Among those that Devon Carbado and Daria Roithmayr identify as “key modernist claims of the theory about which there is general consensus among practitioners in the United States” are the following: (1) “Racial inequality is hardwired into the fabric of our social and economic landscape”; (2) “Race is [nevertheless] a social construction whose meanings and effects are contingent and change over time”; (3) “Racial stereotypes are ubiquitous in society and limit the opportunities of people of color”; (4) “Because racism exists at both the subconscious and conscious levels, the elimination of intentional racism would not eliminate racial inequality”; (5) “The concept of color blindness in law and social policy and the argument for ostensibly race-neutral practices often serve to undermine the interests of people of color” (Carbado & Roithmayr 2014). Although critical race theorists have typically rejected evolutionary and biological paradigms, an increasing number have begun to argue for more direct engagement with the social sciences (Carbado & Roithmayr 2014). This chapter, written for the section on biology for the Oxford Handbook on Law and Technology, suggests that there may be room for cross-fertilization with the evolutionary and biological sciences as well. The chapter ends by identifying four legal and policy implications. First, remedial forms of affirmative action should be used to cure not only for past practices of intentional discrimination but also for continuing effects of current unconscious discrimination. The shelf life of affirmative action is not likely to expire anytime soon, and its remedial use should be broadened. Second, the Supreme Court should reinterpret the Equal Protection Clause of the United States Constitution so that it protects against not only intentional discrimination but also any disparate impact caused by racial beliefs that regularly function to produce inequality, as described in this chapter. Third, more policy focus should be placed on integration—a goal that has largely been abandoned since the last concerted efforts to enforce Brown v. Board of Education in the 1980s (Anderson 2011). Fourth, state actions and police policies that impact minorities should be based on deliberations that involve more diverse constituents. Mechanisms to produce racially diverse juries should be developed in some criminal and antidiscrimination cases.
Download the chapter from SSRN at the link.

July 27, 2015

Writer Ann Rule Dies

Ann Rule, queen of the true crime writers, has died at the age of 83. Her daughter Leslie, who is also a writer, wrote in a Facebook post that her mother had a number of health issues. She published her first book in 1969, and sold a number of works to tv, including Small Sacrifices (which starred Farah Fawcett as Diane Downs), The Stranger Beside Me (which starred Mark Harmon as Ted Bundy), and Too Late To Say Goodbye (which starred Rob Lowe as Bart Corbin).

Earlier this year, Ms. Rule's two sons Michael and Andrew were accused of having improperly taken thousands of dollars from her. The case appears to be pending.

Tim Goodman On the Demise of "True Detective"

The Hollywood Reporter's Tim Goodman explains why he thinks True Detective has lost its way.  He begins:

Having seen the first four episodes — half the season — I gave up because the show was terrible on almost all fronts and I personally don't believe in hatewatching anything.

Ah, but Sunday's episode featured an orgy scene (because of course) that had everyone talking — and mocking — and I was dragged back into the fray to assess it an the current state of the show in general.

Well, this shouldn't be too hard — my verdict is: bad and still bad.

Art and Environmental Law

David Schorr, Tel Aviv University Buchmann Faculty of Law, is publishing Art and the History of Environmental Law in Critical Analysis of Law. Here is the abstract.
This article is an initial exploration of what the history of environmental law can learn from the arts. Looking at visual art (mainly paintings, with some drawings, prints, photographs, and poster art), supplemented by occasional glances in the direction of literary works, it asks what, if anything we can learn about the environmental law of the industrialized West of nineteenth and twentieth centuries before 1970, when environmental problems certainly abounded but before there was "environmental law". The focus is on pollution law, especially air pollution, with some attention paid also to land use law. The paper explores, first, how art may be read as reflecting the conditions against which environmental laws developed (or did not); next, indications in art of the effects of environmental law; and finally environmental law itself as depicted in art.
Download the article from SSRN at the link.

Modernity, Personal Liberty, and Social Control In Renaissance England

Camilla Barker, University of Oxford Faculty of Law, has published Shackles in Shakespeare: On the Falsity of Personal Liberty in Renaissance England at 35 Liverpool Law Review 25 (2014). Here is the abstract.
The extent to which individuals truly can master their liberty is a question that infiltrates the entire Shakespearean corpus. It is through a series of fraught socio-legal conflicts that Shakespeare’s audiences are treated to the comedies and tragedies of Europe’s transition into early-modernity. Socio-legal relationships fuel Shakespeare’s plots and his characters present challenges to the ways in which the reader thinks about law and legal process. In reality is “law” just the will of whoever has the most power? Does equality only exist for those born into the highest social substratum? Is the rule of law really as universal as it seems? By investigating these questions using four of Shakespeare’s apparently apolitical plays, the author examines the individuals within socio-legal relationships as a way of shedding light on the day-to-day realities of Renaissance England, something that more traditional scholarship has yet to pursue. Part One examines marriage, class conflict and legal participation in The Comedy of Errors. Part Two looks at the native-alien division and legal obligation in The Merchant of Venice. Part Three assesses the nature of empire and the security of prescribed knowledge in Cymbeline. Finally, Part Four probes wider issues of social control and subordination in The Tempest.
Download the article from SSRN at the link.

Mark Tushnet's Constitution of the United States of America, Second Edition, Now Available

Mark Tushnet, Harvard Law School, has published The Constitution of the United States of America: A Contextual Analysis (2d ed., Hart Publishing, 2015). Here is a description of the contents from the publisher's website.
This is the second edition of Professor Tushnet’s short critical introduction to the history and current meaning of the United States’ Constitution. It is organised around two themes: first, the US Constitution is old, short, and difficult to amend. Second, the Constitution creates a structure of political opportunities that allows political actors, icluding political parties, to pursue the preferred policy goals even to the point of altering the very structure of politics. Deploying these themes to examine the structure f the national government, federalism, judicial review, and individual rights, the book provides basic information about, and deeper insights into, the way he US constitutional system has developed and what it means today.

Hannah Arendt's Constitutional Theory

Christian Volk, University of Trier, has published Arendtian Constitutionalism: Law, Politics, and the Order of Freedom (Hart Publishing, 2015). Here is a description of the contents from the publisher's website.

The meaning and function of law in Hannah Arendt’s work has never been the subject of a systematic reconstruction. This book examines Arendt’s work and reconstructs her ideas through political, legal and constitutional theory, and shows that her engagement with law is continuous as well as crucial to an adequate understanding of her political thought. The author argues that Arendt was very much concerned with the question of an adequate arrangement of law, politics and order – the so-called triad of constitutionalism. By adopting this approach, the author suggests an alternative interpretation of Arendt’s thought, which sees her as thinker of political order who considers as crucial a stable and free political order in which political struggle and dissent can happen and occur.

Comparative Constitutional Law and Global Values

Now available:

An Inquiry Into the Existence of Global Values :Through the Lens of Comparative Constitutional Law (Dennis Davis, Alan Richter, and Cheryl Saunders, Hart Publishing, 2015). Here is a description of the contents from the publisher's website.

The world appears to be globalising economically, technologically and even, to a halting extent, politically. This process of globalisation raises the possibility of an international legal framework, a possibility which has gained pressing relevance in the wake of the recent global economic crisis. But for any international legal framework to exist, normative agreement between countries, with very differing political, economic, cultural and legal traditions, becomes necessary.
This work explores the possibility of such a normative agreement through the prism of national constitutional norms. Since 1945, more than a hundred countries have adopted constitutional texts which incorporate, at least in part, a Bill of Rights. These texts reveal significant similarities, which are examined in this book. From these national studies the work analyses the rise of constitutionalism since WWII, and charts the possibility of a consensus of values which might plausibly underpin an effective and legitimate international legal order.

July 24, 2015

Call For Participation: A Survey on Uses of Popular Culture In Legal Education

Professor Cynthia Bond of the John Marshall Law School (Chicago) is conducting a survey of legal educators to determine uses of popular culture in the law school classroom. She's requesting assistance; here's her message to you. Something interesting and different to do among all those bouts of research in the library, revisions of syllabi, and trips to the faculty lounge for coffee!

Greetings Law Prof. Colleagues:

I hope your semester is winding down well.

I am working on an article this summer on uses of popular culture in the law school classroom.  I am defining popular culture broadly to include mass culture texts like movies, TV shows, popular music, images which circulate on the internet, etc, and also any current events that you may reference in the classroom which are not purely legal in nature (i.e. not simply a recent court decision).

To support this article, I am doing a very unscientific survey to get a sense of what law professors are doing in this area.  If you are a law professor and you use popular culture in your class, I would be most grateful if you could answer this quick, anonymous survey I have put together:

Thanks in advance for your time and have a wonderful summer!

Cynthia D. Bond
Clinical Professor
Lawyering Skills Program
The John Marshall Law School
315 S. Plymouth Ct.
Chicago, IL  60604

New David E. Kelley Series "The Trial" Will Star Billy Bob Thornton

The Hollywood Reporter is reporting that Billy Bob Thornton (Sling Blade, Monster's Ball, Friday Night Lights) will star in David E. Kelley's new legal series The Trial for Amazon after Kevin Costner dropped out.  The series features a disaffected attorney, Billy McBride (Thornton), who is tossed out from the law firm he founded and finds a new purpose in life when a younger attorney brings him a wrongful death case.

July 23, 2015

Blackstone's Enduring Legacy

Wilfrid Prest has edited a collection of essays on Blacktone's Commentaries with Hart Publishing. Titled Re-Interpreting Blackstone's Commentaries, it appeared in October 2014. Here is a description from the publisher's website.
This collection explores the remarkable impact and continuing influence of William Blackstone's Commentaries on the Laws of England, from the work's original publication in the 1760s down to the present. Contributions by cultural and literary scholars, and intellectual and legal historians trace the manner in which this truly seminal text has established its authority well beyond the author's native shores or his own limited lifespan. In the first section, 'Words and Visions', Kathryn Temple, Simon Stern, Cristina S Martinez and Michael Meehan discuss the Commentaries' aesthetic and literary qualities as factors contributing to the work's unique status in Anglo-American legal culture. The second group of essays traces the nature and dimensions of Blackstone's impact in various jurisdictions outside England, namely Quebec (Michel Morin), Louisiana and the United States more generally (John W Cairns and Stephen M Sheppard), North Carolina (John V Orth) and Australasia (Wilfrid Prest). Finally Horst Dippel, Paul Halliday and Ruth Paley examine aspects of Blackstone's influential constitutional and political ideas, while Jessie Allen concludes the volume with a personal account of 'Reading Blackstone in the Twenty-First Century and the Twenty-First Century through Blackstone'. This volume is a sequel to the well-received collection Blackstone and his Commentaries: Biography, Law, History (Hart Publishing, 2009).
The editor is Professor Emeritus of Law and History at the University of Adelaide.


Issues In Measuring Law School Diversity

Jack Manhire, Texas A&M University School of Law, is publishing Beyond the U.S. News Index: A Better Measure of Law School Diversity in volume 101 of the Iowa Law Review Online. Here is the abstract.
The U.S. News & World Report publishes a diversity index along with its annual ranking of U.S. law schools. Race and ethnicity are the only factors the magazine uses to measure law school diversity. But is this a meaningful measure of student difference? Are race and ethnicity all that count or are there other differences that contribute to a richer educational experience for students and better outcomes for law schools? In a 2011 Iowa Law Review article, Kevin Johnson argues that law school diversity is not limited to only race and ethnicity. He further argues that law school diversity, defined broadly, is critical to the success of legal education; both for the students and the institutions that serve them. Yet, the epistemological question remains: how do law schools know how diverse their student bodies are? If law student diversity is more than just racial diversity, the current U.S. News index is incomplete and fails to provide a meaningful law school diversity measure. This essay proposes an improved diversity index that captures more of the differences that matter to the success of both law students and law schools. The essay begins by very briefly recapping some of Dean Johnson’s compelling arguments for why law school diversity (in its broader conception) is critical, and why measuring it is so important. It then examines the types of differences shown to produce better outcomes in heterogeneous groups, and explains the methodology behind the proposed cognitive diversity index.
Download the article from SSRN at the link.

Assessing Feminist Legal Studies (The Journal) After Two Years of a New Board

Ruth Fletcher, Queen Mary University of London, has published Responding to Submissions and Introducing Issue 23(1), in volume 23 of Feminist Legal Studies (2015). Here is the abstract.
Feminist Legal Studies (FLS) has been working with its new Board for 2 years now and we thought it timely to share some further reflections on developments (Lamble 2014). This editorial itself is an experiment as we consider ways of using FLS spaces to encourage distribution of and engagement with feminist insights. From this issue on, we plan to publish open access editorials to introduce readers to new FLS content and to encourage interaction with the journal. Some editorials will highlight Board practices, decisions or ideas that may be of interest to scholars and practitioners in feminist legal studies. Other editorials will provide an opportunity to discuss some topic or approach in feminist legal studies more generally. In this regard we would like to announce that FLS will host an international and interdisciplinary seminar in London, UK, on 30 June and 1 July 2016 to consider the relationship between feminism, legality and knowledge. We hope that the journal, alongside related projects and publications, will go on to address some of the insights that emerge from that seminar. In the meantime, here we provide an updated account of how the FLS Board responds to submissions of various kinds, and introduce the content of this first issue of 2015.
Download the article from SSRN at the link.

Ruth Bryan Owen's Citizenship, Gender Discrimination, and Plain Meaning

Daniel B. Rice, Duke University School of Law, has published The Riddle of Ruth Bryan Owen. Here is the abstract.
This Article recovers a lost chapter of constitutional history — the ill-fated challenge to Ruth Bryan Owen’s congressional eligibility. Owen was the brilliant (and American-born) daughter of famed politician William Jennings Bryan. The Expatriation Act of 1907 ironically stripped Owen of her American citizenship when she took a British husband. Congress swiftly repealed this loathsome feature after the Nineteenth Amendment’s ratification. Owen had been a naturalized citizen for three years at the time of her House election in 1928, and she had accumulated far more citizenship credit in her youth. Even so, her defeated opponent claimed that she hadn’t “been seven Years a Citizen of the United States” as the Constitution requires. The House therefore faced an unenviable adjudicative dilemma: does “seven Years” mean the immediately preceding seven years, or any seven years cumulatively? Owen’s case explodes the conventional assumption that “mathematical” constitutional provisions are, by nature, self-interpreting patches of plain meaning. And in recounting Owen’s historic victory, this Article presents powerful new evidence that women came to be seen as improper objects of state-sanctioned discrimination after the Nineteenth Amendment’s ratification. Owen’s triumph marks an important turning point in American women’s effort to achieve full constitutional equality. Because scholars have forgotten her story, they have overlooked crucial sources that might have helped provide a historically firmer basis for sex-discrimination doctrine.
Download the article from SSRN at the link.

July 22, 2015

The Jurist and Society

Luca Siliquini-Cinelli, Deakin University Faculty of Business and Law, has published Imago Veritas Falsa: For a (Post-)Schmittian Decisionist Theory of Law, Legal Reasoning, and Judging in volume 39 of the Australian Journal of Legal Philosophy (2014). Here is the abstract.
For decades, while approaching the ‘normativism/pragmatism’ divide and discussing the legitimacy of (and opportunity for) the judge to act as a ‘social engineer,’ socio-legal scholars have tried to ascertain whether the jurist should also consider the impact of his/her activity on society at large, and if so, why and to what extent. The present contribution understands instead the law in terms of a structurally incomplete image (imago veritas falsa) which always needs the decisive intervention of the legal interpreter to exercise its performative instances. In particular, by adopting an unconventional theoretico-philosophical approach that transcends the classic boundaries of foundationalist metaphysics as expressed by the dichotomy of Western logic, this paper argues for the necessity of a tertium comparationis capable of explaining that the real essence of law, legal reasoning, and judging is neither that of normativism, nor of pragmatism, but rather of (post-)Schmittian decisionism.
Download the article from SSRN at the link.

The Legal Art (?) of Being Disagreeable

Justin Wedeking and Michael Zilis, both of the University of Kentucky Department of Political Science, have published The Use of Disagreeable Language in Supreme Court Opinions. Here is the abstract.
We explore the factors that lead Supreme Court justices to integrate disagreeable language into their written, signed opinions. We suggest that disagreeableness is primarily a product of two broad sets of factors: position taking and policy influencing. Examining judicial opinions from 1946-2011 using three different text-based measures of negative language, we find consistent evidence that justices are more likely to draw on disagreeable language for both policy-based reasons as well as position taking. Moreover, we find that several predictors are robust across majority, dissenting, and concurring opinions. Furthermore, to explore one consequence of opinion language, we show that disagreeable language is negatively related to the size of majority coalitions, suggesting important implications for the legitimacy of the Supreme Court.
Download the article from SSRN at the link.

The Rhetorical Language of Slavery, Workers' RIghts, Football Players, and Unpaid Interns

Maria Linda Ontiveros, University of San Francisco School of Law, is publishing NCAA Athletes, Unpaid Interns and the S-Word: Exploring the Rhetorical Impact of the Language of Slavery in the Michigan State Law Review. Here is the abstract.
This essay presents initial results of a literature survey that explored the use of the rhetoric of slavery by workers' rights groups. It presents quantitative results for uses of terms such as slave, slavery, modern day slavery, plantation, Jim Crow and Juan Crow as these terms were used by immigrant worker advocates, opponents of labor trafficking, advocates for unpaid interns, National Collegiate Athletic Association athletes, professional athletes and in the context of prison labor. The essay also provides a qualitative analysis of how these terms were used by NCAA athletes and unpaid interns and a discussion of the criticism leveled at them for drawing the slavery analogy for voluntary employment relationships. The essay argues that, even though these advocates were criticized for their rhetorical use of the language of slavery, the rhetoric was effective because it helped frame NCAA athletes and unpaid interns as workers engaged in labor deserving of protection under labor and employment laws, even though they were not being paid for their labor. It describes how legal cases brought by these workers, including O'Bannon v. NCAA; Northwestern University and College Athletes Players Association (CAPA); and Glatt v. Fox Search Light have helped redress their problems. The essay argues that these two case studies illuminate the public understanding of core principles of the Thirteenth Amendment, including the right to own and sell your labor and the existence of a floor for free labor created by labor and employment laws. When employment relationships violate these principles, even if the relationship is voluntary, advocates can and will turn to the rhetoric of slavery to advance their cause because the arrangements violate the spirit of the Thirteenth Amendment.
Download the essay from SSRN at the link.

July 21, 2015

Monroe Freedman and Atticus Finch

As Go Set a Watchman passes one million copies in sales, the National Law Journal notes that Monroe Freedman took the position in 1992 suggesting that Atticus Finch was not quite the heroic character everyone else has made him out to be.

“If we don’t do something fast, lawyers are going to start taking him seriously as someone to emulate. And that would be a bad mistake,” Freedman wrote. “I would have more respect for Atticus Finch if he had never been compelled by the court to represent Robinson (a black defendant) but if, instead, he had undertaken voluntarily to establish the right of the black citizens of Maycomb to sit freely in their county courthouse.”
Does Scout's portrait of Atticus in Harper Lee's newly published novel vindicate Professor Freedman's view of him? What do you think?

Update: Information for Submitting Articles To Law Reviews & Journals

Allen Rostron and Nancy Levit, both of the University of Missouri, Kansas City School of Law, have published Information for Submitting Articles to Law Reviews & Journals. Here is the abstract.
This document contains information about submitting articles to law reviews and journals, including the methods for submitting an article, any special formatting requirements, how to contact them to request an expedited review, and how to contact them to withdraw an article from consideration. It covers 204 law reviews. The document was fully updated in July 2015.
Download the article from SSRN at the link.

Legal Education and the "Law ands"

Bernadette A. Meyler, Stanford Law School, is publishing Law, Literature, and History: The Love Triangle in the UC Irvine Law Review. Here is the abstract.
A decade ago, at the end of her characteristically astute provocation of law and literature scholars in “Law, Literature, and the Vanishing Real,” Julie Peters suggested moving beyond the law/literature dichotomy into both “law, culture, and the humanities” and global “disciplinary tourism.” By silently glossing over “literature” in favor of the broader terms “culture” or the “humanities,” new formulations of the area of study might, she indicated, help to dispel the “interdisciplinary illusion” fueling the opposition between and relation of law and literature, dispensing with the notion shared by scholars of both law and literature that the “real” is located just over the methodological divide between the fields. Peters’ essay valuably rejected the binary that appears in far too many versions of law and literature scholarship. Its aspiration to put aside disciplinary boundaries among sectors of the humanities in studying “law, culture, and the humanities” or “law and the humanities” tout court has not, however, proved entirely feasible, nor is it necessarily desirable.

As those familiar with “law and society” know, the turn toward a broader category — like culture, or the humanities, or society — may not remain unvexed, as questions arise respecting the unity of the umbrella term and its framing in opposition to law. Moreover, from within the parameters of law, and particularly those of legal pedagogy, “law and the humanities” designates not precisely a decomposition of the boundaries between law and its outside, but a gesture toward one form of law’s outside, the humanistic, as opposed generally to the social sciences. Despite the proliferation of the “law and” fields, many — including law and the humanities — still appear from the vantage point of legal pedagogy as a superficial carapace that can be shed when financial exigencies press law schools to cut costs and reduce tuition.

This Article aims to demonstrate the centrality of the humanities to the core of law school pedagogy today. At the same time, by focusing on two areas within the humanities — literature and history — it tries to show how disciplines still matter, both as engines and impediments. Examining the shifting passions that bind law, literature, and history to each other, it foregrounds the dynamic quality of disciplinary relations as the attraction of fields for each other waxes and wanes. This dynamism itself advances the possibilities for new births of knowledge. Although unstable and of unknown fate, the love triangle of law, literature, and history continues to spawn fertile offspring.
Download the article from SSRN at the link.

A Review Essay of David Luban's Torture, Power, and Law

Milan Markovic, Texas A&M University School of Law, is publishing Of Monsters and Lawyers in Criminal Justice Ethics. Here is the abstract.
This is a review essay of David Luban's important and prescient new book, Torture, Power, and Law. The review essay focuses on two of Luban's central arguments: The fallacious trade-off between civil liberties and national security after the 9/11 attacks and the manipulation of anti-torture law by Bush administration lawyers. Although I largely agree with Luban's analysis, I contend that the "coercive interrogation program" and other war on terror policies cannot be fully understood without considering anti-Muslim attitudes in the United States. I also question whether, in analyzing the ethics of government lawyers, the distinction between frivolous and non-frivolous legal positions is as marked as Luban suggests.
Download the review essay from SSRN at the link.

Learning From Non-Fiction Storytelling

Jeanne Kaiser, Western New England University School of Law, has republished When the Truth and the Story Collide: What Legal Writers Can Learn from the Experience of Non-Fiction Writers About the Limits of Legal Storytelling in volume 16 of the Journal of the Legal Writing Institute (2010) in 4 The Monograph Series of the Legal Writing Institute: Advanced Legal Writing: Courses & Themes (Elizabeth Fajans, ed. 2015). Here is the abstract.
This Chapter examines what can be gained and what can be lost by using storytelling in legal writing. After reviewing some basic principles of legal storytelling, the Chapter reviews some lessons that can be learned from the experience of the New Journalists who adopted literary techniques in their non-fiction work. In the end, the Author concludes that while there is much value in using the tools of fiction in legal writing, it is only with a blend of narrative and analysis that we most successfully do our jobs as lawyers.
Download the chapter from SSRN at the link.

Law, Speech, and Interpretation

Lawrence M. Solan, Brooklyn Law School, and Silvia Dahmen, University of Cologne, have published Legal Indeterminacy in the Spoken Word as Brooklyn Law School Legal Studies Paper No. 418. Here is the abstract.
A great deal is written about difficulties in construing legal texts. Much less effort has gone into identifying interpretive problems that result from spoken language. This paper does that, by discussing how our abilities to perceive and understand speech lead to misunderstandings in legal contexts. Specifically, there are numerous battles over what was actually said in recorded speech. These disagreements are often reflected in disputes over how the interaction should be transcribed. We discuss many such examples, and explain them in terms of well-studied phonetic phenomena. These include our difficulty in segmenting speech into words (we speak without using a spacebar), and, in English, the fact that unstressed vowels, and some consonants, are reduced to the point of being indistinguishable, or even inaudible. For purposes of exposition, we compare cases involving the misperception of recorded speech in legal contexts with the misperception of song lyrics. Finally, we discuss our lack of memory for both the exact words spoken, and for human voices with which we are not sufficiently familiar. Our failure to recall exact words creates serious problems for the legal system with respect to prosecuting false statements made verbally, and enforcing oral contracts.
Download the article from SSRN at the link.

July 20, 2015

Photography, Originality, and Copyright Law

Terry S. Kogan, University of Utah College of Law, is publishing The Enigma of Photography, Depiction, and Copyright Originality in volume 25 of the Fordham Intellectual Property, Media & Entertainment Law Journal. Here is the abstract.
Photography is an enigma. The features that distinguish it most from other art forms — the camera’s automatism and the photograph’s verisimilitude — have throughout its history also provided the basis for critics to claim that a photographer is not an artist nor the photograph a work of art. Because every photograph is the product of an automatic, mechanical device, critics argue that a photographer is a mere technician relegated to clicking a shutter button. Moreover, because every photograph displays an exact likeness of whatever happened to be sitting before the camera, critics consider that image to be a factual document devoid of creativity. Looking to the technology’s automatism and verisimilitude, modern legal skeptics have joined this chorus by arguing that most photographs are inevitably uncreative facts — in the words of one scholar, the “automated representation of reality” — and thereby undeserving of copyright protection.

This is the first Article to propose that borrowing the concept of depiction from art theory can shed considerable light on photographic originality. As a depiction, a photograph has what philosopher Richard Wollheim has described as “two folds.” The “first fold” refers to the design markings on the surface of the photographic paper. The “second fold” refers to the real world object or scene that a viewer perceives in those design markings. This Article’s fundamental thesis is that, for purposes of copyright law, a photograph’s originality inheres primarily in a photographer’s creative choices that result in the placement of surface design markings. In contrast, the object or scene that a viewer sees in a photograph rarely impacts the image’s originality. Accordingly, the claim by legal skeptics that most photographs are uncreative facts locates photographic originality in the wrong place — in the object or scene that a viewer sees in the picture (depiction’s second fold). If, instead, a photograph’s originality depends primarily on a photographer’s creative choices in placing surface design markings (depiction’s first fold), the attack on originality based on automatism and verisimilitude — on a photograph’s inevitably being an uncreative fact — collapses.
Download the article from SSRN at the link.