November 20, 2014

Law In "The Wire"

John Denvir, University of San Francisco School of Law, has published Seeing the Big Picture: Why Law Fails in The Wire.  Here is the abstract.

Popular culture can have political impact. The Wire is not only engrossing melodrama; it also tells a compelling story of how and why the American political system fails us. Because a television series like The Wire not only appeals to a much broader audience than traditional political arguments, but also transforms abstractions into concrete images aimed at both our hearts and our minds, it can play a major role in efforts to change the world for the better.
Download the paper from SSRN at the link. 

Whither the Law Review, and Of What Use Is the Blog, If We Want To Have Fruitful Conversations About Law

Katharina Isabel Schmidt (Yale Law School) offers a comparative look at US and German law journals, blogs, and their uses in the transmission of legal ideas here in a post at the Völkerrechtsblog (English translation: Public International Law Blog). Here's an excerpt.

American law journals are interesting for the most part, if not necessarily always useful. German law journals, in turn, while useful for the most part, are not necessarily always interesting. As adumbrated above, this is due to the particular division of competences within the German legal profession on the one hand and the American legal profession on the other hand. German scholars, unlike their American counterparts, are routinely cited in court decisions. As such, they have no choice but to deliver the doctrinal goods expected of them. In the United States, unlike in Germany, placing articles in top-tier journals constitutes a necessary step on the long and winding road to tenure. As such, one can hardly blame aspiring academics for pretending to reinvent the wheel one case note at a time. In addition, trans-Atlantic divergences in the structure of legal education naturally influence the extent to which German and American jurists are able to produce and consume interdisciplinary knowledge. The – admittedly overblown – distinction between the common and the civil law tradition further contributes to making matters look positively discombobulated.
For some folks, that last sentence conveys fighting words! ;) Ms. Schmidt goes on to suggest that one way to further invigorate the intellectual tradition is to exploit the blog format.

At the same time I would argue that blogs like the present one hold the potential to facilitate conversations about law that are free from the intricate constraints of national legal science. In particular, the kind of jurisprudential writing they make possible confronts scholars and practitioners alike with ideas that lie outside the realm of their necessarily limited intellectual experience. It is in this way that blogs and other non-traditional platforms allow for a much-needed re-appreciation of what it means to be a jurist in the 21st century. Therefore, the goal of law blogs and similar projects should be an attempt to counterbalance the deficits inherent in traditional approaches to the exchange of ideas about law and the legal profession – deficits exemplified by my discussion of contemporary American and German law journal culture.

Hannah Birkenkötter (Humboldt University) responds to the notion of evolving structures of intellectual transmission in a post here. An excerpt:

In her insightful and very pertinent blog post on legal formats, Katharina Isabel Schmidt takes a comparative look at law journals and legal formats in the US and Germany, the two systems that she is familiar with. Most of her observations correspond to my experience (although I have only spent a few weeks in the US, so most of my observations are grounded in conversation with colleagues and friends as well as reading American-authored scholarship rather than first-hand experience “on the ground”) and I wholeheartedly agree that comparative looks at legal formats allow us to “re-imagine the future of legal knowledge production”. I am skeptical, however, whether non-traditional means of knowledge production, in particular blogs, truly have the “potential to facilitate conversations about law that are free from the intricate constraints of national legal science” (emphasis my own). I’ve rather found legal blogs, or blawgs, especially of the academic type, to be quite different depending on the legal culture they are rooted in. I certainly agree that blogs have the potential, and are actually used as a means to disturb existing hierarchies and conventions of scientific communication, and that on both sides of the Atlantic. But at the same time, they are not free of their respective legal traditions.
But as Ms. Birkenkötter notes, blogs do allow new identities, regardless of the tradition, to emerge, more so in the US, perhaps less so in Germany, "While not free from constraints, they provide alternative platforms and thus room for alternative topics, actors and approaches. This very conversation is, in my view, proof of it. So let’s continue the talk."

I fully agree. I would point out that, in addition to blogs, other formats have emerged, including online law review journals, such as Stanford Law Review Online.  The Library of Congress has a listing of journals available online, although not all journals listed are exclusively "online" journals; some are print journals with an online presence and/or online "exclusives." Such an online approach allows frequent updating and permits a publication to address "up to the minute" topics and breaking news. It allows academics to "be relevant." It lets us use the more effective and efficient features of the web, including the ability to be interactive and to respond to critiques quickly, so that we really can engage in conversation on a frequent basis, rather than wait until those pleasant but increasingly expensive conferences roll around. Maybe we'll now get more out of them.

November 18, 2014

A New Issue of "Law and Humanities" (Hart Publishing) Is Available

Volume 8, issue 2 (2014) of Law and Humanities has been published. The Table of Contents is available here at the publisher's website. The issue includes a number of interesting articles such as Andra le Roux-Kemp's Struggle Music: South African Politics in Song and Maria Mendes' Hamlet's Ordeals.

A Website For New Book Reviews From Rutgers School of Law-Newark and Rutgers School of Criminal Justice

The Rutgers School of Law-Newark and Rutgers School of Criminal Justice regularly review new books in the fields of criminal law, criminal procedure, and criminal justice at the website Criminal Law and Criminal Justice Books. You can sign up to be notified when the site publishes new alerts, or just visit often to scan for interesting reviews in your area of interest.

Legal Reasoning, Rules, and Narrative

Stephen Paskey, State University of New York, Buffalo, Law School, is publishing The Law is Made of Stories: Erasing the False Dichotomy between Stories and Legal Rules in volume 11 of Legal Comm. & Rhetoric: JALWD (Fall 2014). Here is the abstract.

When lawyers think of legal analysis, they think chiefly of logic and reason. Stories are secondary. As Michael Smith explains, our legal system “is not founded on narrative reasoning” but on “a commitment to the rule of law.” The article suggests that this dichotomy between “rule-based reasoning” and “narrative reasoning” is false, and that narrative and stories are central to legal reasoning, including rule-based reasoning. In doing so, the article uses literary narrative theory to show that every governing legal rule has the structure of a “stock story”: the elements of the rule correspond to elements of a story. It follows that lawyers do not rely on stories simply because they are persuasive. They do so because a story is literally embedded in the structure of governing rules, and those rules can be satisfied only by telling a story. Thus, many analytical moves we label “rule-based reasoning” can be understood as a type of narrative reasoning, in which a client’s story is compared to and contrasted with the stock story embedded in the rule.
Download the article from SSRN at the link. 

Jefferson's Constitution

Gerald Leonard, Boston University School of Law, is publishing Jefferson's Constitutions in Constitutions and the Classics: Patterns of Constitutional Thought from John Fortescue to Jeremy Bentham (D. J. Galligan, ed., Oxford University Press, 2014). Here is the abstract.

Between 1787 and 1840, the Constitution gained a far more democratic meaning than it had had at the Founding, and Thomas Jefferson was a key figure in the process of democratization. But, while more democratic in inclination than many of the Framers, he fell far short of the radically democratic constitutionalism of his most important acolytes, Martin Van Buren and Andrew Jackson. This chapter of Constitutions and the Classics explains that Jefferson was actually much less attached to democracy and more to law as the heart of the republican Constitution. Compared to the 1830s founders of the nation’s democratic Constitution, Jefferson retained much of the elitist, law-oriented, antiparty, slavery-protective (though not pro-slavery) convictions of most of the Framers. He broke somewhat from most of the Framers, however, in taking a radical states’-rights view of the Constitution akin to that of the opponents of the Constitution. In practice, his constitutional politics as Republican leader in the 1790s and president in the 1800s built an important bridge to the democratic Constitution of his successors, even if he never fully embraced that development. And his firm defense of states’ rights, especially in connection with slavery, undermined his occasional endorsement of a very limited antislavery authority in the federal government. The ascendancy of the Jacksonian Democratic party would entrench essentially Jeffersonian constitutional principles of states’ rights and slavery protection but would substitute democratic will for reason and law at the foundation of the Constitution.
Download the essay from SSRN at the link. 

November 12, 2014

Tilburg University Creates Fellowship Opportunity In Memory of Professor Willem Witteveen

Tilburg University announces a new Law &; Humanities fellowship opportunity at Tilburg University in the Netherlands. The fellowship was created in honor of Prof. Willem Witteveen, who was a long standing professor in jurisprudence as well as a senator for the Labour Party in the Netherlands. Along with his wife and daughter, Willem was killed in the MH17 flight this past summer. To honour his contribution to Law & the Humanities, the Tilburg Law School created this fellowship for junior researchers.

Tilburg University
Witteveen Memorial Fellowship on Law and Humanities

Professor Willem Witteveen was an early representative of the interdisciplinary and contextual approach to legal scholarship in The Netherlands and Tilburg Law School. Whereas the emphasis often is on social sciences, Willem's focus was on law and humanities. Rhetoric, literature, political philosophy and (intellectual and cultural) history in particular were breeding grounds for Willem's many contributions to academia, politics and society. Willem attached a lot of importance to student formation in the sense of the classic Bildungsideal to which expression (rhetoric, language) and contact with classical texts are central. As progressive as much of his work is, as strong was his attachment to traditional forms of academic life, with their opportunities for direct exchange of ideas.

DESCRIPTION: Tilburg University is establishing the annual Witteveen Memorial Fellowship on Law and Humanities in order to commemorate the life and work of Willem Witteveen. The fellowship aims to enable a junior scholar (PhD or postdoc level) to further develop his or her research in the area of 'Law and Humanities' during a visit to Tilburg.

WHAT THE WITTEVEEN MEMORIAL FELLOWSHIP ON LAW AND HUMANITIES OFFERS: The Witteveen Memorial Fellow will have office space and facilities at the Department of Public Law, Jurisprudence and Legal History of Tilburg Law School, as well as full library access.

FUNDING: We offer reimbursement of travel expenses (max. 750 euro) and accommodation expenses (max. 1500 euro per month) in case the fellow is based outside of The Netherlands. In case the fellow is based at a Dutch university we offer a replacement subsidy of up to 1500 euro per month to their employer to compensate for the loss of teaching hours of the researcher as well as reimbursement of commuting costs (max. 250 euro per month). The Witteveen Memorial Fellowship does not constitute an employment relationship. For this reason, Tilburg Law School will not make social insurance contributions or contributions to pension or unemployment insurance.

In principle the Witteveen Memorial Fellowship on Law and Humanities is for a duration of three months in the Spring following the application deadline. Candidates are welcome to propose a different period. In case the fellowship is awarded for less than three month the maximum amount to be reimbursed for accommodation (scholars based outside of The Netherlands) or teaching buy-out and commuting costs (for scholars based at a Dutch university) will be proportionately lower. If the fellowship is awarded for longer than three months, the total amount to be reimbursed, travel or commuting costs included, remains 5250 euro.

WHAT IS EXPECTED OF THE WITTEVEEN MEMORIAL FELLOW: During the period of the fellowship the scholar will be present in Tilburg, participate in the academic life of both Tilburg Law School and the Tilburg School of Humanities and deliver a guest lecture to students. Any publications resulting from the fellowship should mention the Witteveen Memorial Fellowship on Law and Humanities explicitly.

APPLICATION PROCEDURE: Scholars who are currently working on a PhD dissertation or who defended one not longer than five years ago are eligible. Candidates are requested to submit their application before 20 January 2015. Applications can only be submitted online ( Candidates must submit a cover letter, a CV including publications, a statement of intent ('what do you plan to do during the fellowship?', 'what is the end product?') and one reference letter.

In principle, the selection committee will decide on the basis of the written application only.

FURTHER INFORMATION: For questions, please contact Sabine Gabriel (

Law-Inspired Haiku From Some Future Law and Poetry Scholars at Emory School of Law

As a followup to a post about Supreme Court Haiku and the current ABA-sponsored Supreme Court Haiku Contest for Law Students (open until November 15), I've invited Professor Julie Seaman of the Emory School of Law to present a selection of the haiku created by some of her constitutional law, evidence, and free speech students. I think they're a clever and talented group, and their poems have pith. I like pith.

A few weeks ago, and seemingly out of the blue, legal haikus were suddenly everywhere.  A former student slipped a flyer under my door announcing a Supreme Court haiku contest for law students, sponsored by the American Bar Association.  A sticky note attached to the flyer said, “I thought you’d like to share this with your classes!  Apparently the ABA shares your love of legal haiku.”  A few days later, someone on the conlawprofs listserv shared a link to the Supreme Court Haiku website (, a remarkably clever and delightful collection of which I’d thus far been unaware. 

Why did my student give me the flyer?  Because last semester, after trying my hand at legal haikus on a Facebook dare, I announced to my con law class that they could win free passes for writing haikus about the reading assignments.  Before each class, I would choose my favorite submission and post it on the powerpoint slides for the class; its author would be entitled to an extra free pass to be used as he or she wished during the semester.

The contest was a big hit with the students.  Some students were quite prolific.  Many of the haikus were funny and creative.  I continued the call for haikus this fall in evidence and free speech.  Several students have told me that boiling the cases or rules down to seventeen syllables helps them learn the material – imagine: actual pedagogical value!  But even if the exercise is pedagogically irrelevant, it sure is fun to read the submissions.  Here are some highlights: 

DeShaney v. Winnebago County Dept. of Social Services

Oh poor little Josh
State said they would care for him
No prison no help

Colin Peterson

Buck v. Bell

Can Carrie have kids?
She encumbers the state's funds!
She had due process.

Josh Karr

Troxel v. Granville

Child can’t see grandma
Mom has the right to deny
the visitation

Zoya Kovalenko

Cruzan v. Director, MO Dept of Health

Nancy is brain-dead
Her parents grieve, with no choice
But to watch her lie

Ashleigh McClure
NYC Transit Auth. v. Beazer

On that methadone
TA says I can’t work here
Upheld . . . unemployed

Stephanie Grossinger

Railway Express Agcy v. New York

It is a health risk,
To have car advertisements.
Deal with it, locals!

Rebecca Sussman

Korematsu v. United States

Refusing Orders?
Not So Fast, Korematsu.
Jail Time for You, Sir.

Caroline Geiser
Tiers of scrutiny

defers, but not for suspect

Jordan Kragten
Craig v. Boren

So now my girlfriend
Can’t buy us three-two’s either?
Equality bites.

Mike McClain

United States v. Virginia

Stonewall is glaring
Shenandoah is playing
RAH Virginia Mil!

Rebecca Sussman

Skinner v. Oklahoma

Embezzlement: theft,
very similar but one
sterilizes you.

Alison Murphy

Moral turpitude
Cannot deprive criminals
Of life’s greatest gift

Meg McNulty

Watts v. US

Watts threatened the Chief,
But such clear hyperbole
Is protected speech.

Rebecca Hall

New York v. Ferber

If porn depicts kids,
value is de minimus.
The statute survives.

Joe Bearden

Trial of Sir Walter Raleigh

Raleigh’s ghost lingers . . .
“What matter how the head lie,
So the heart be right?”

Rebecca Sussman

Rule 804(a)

Forgetful? Stubborn?
Sick? Privileged? Dead? Then you are...

Graham Burkhalter
Admissions Doctrine

Wait! Statements I make
are not considered hearsay?
I’m done talking now.

Josh Karr

I will sit silent
If asked if I read today
Tacit Admission

Brad Verona
Frye Test

Frye test rests on
these Elitists assumptions. 
Jurors can be smart!
Rebecca Sussman

The creativity bled over into other student communications.  One day the air conditioning was not working in the classroom.  After class, this message (from student Chris Roth) was in my inbox:

It is so damn warm
Please turn on the A/C now
Because it is hot

Another day I received this in an email before class (from student Ned Dutton):

I’m leaving early,
But please don’t be offended.
It’s an interview.

One day I canceled a reading assignment and received this (from student Rebecca Sussman, whom I must say has discovered a genuine gift for haiku):

A sigh of relief, 
Gonna ignore that reading.
Hello, sweet Netflix!

Ms. Sussman also apologized for an absence this way:

The class glared at me!
Rude, loud coughing wouldn't end!
I hate bronchitis.

Leading up to the review session, student Caroline Geiser sent this:

7 more classes
and then we have exams?!? Shit. 
Jesus take the wheel.

And finally, on the final (from student Jordan Kragten):

law was tough, but Professor
Seaman was great.  Thanks!

Sex, Theology, and Marriage in Protestant Thought

John Witte, Jr., Emory University School of Law, is publishing Sex and Marriage in the Protestant Tradition: 1500-1900 in the Oxford Handbook on Theology, Sexuality, and Gender (Adrian Thatcher, ed.; Oxford University Press, 2014). Here is the abstract.

This Article analyzes the mainline Lutheran, Calvinist, and Anglican models of sex, marriage, and family and their gradual liberalization by Enlightenment liberalism. The theological differences between these models can be traced to their grounding in Lutheran two kingdoms doctrines, Calvinist covenantal theology, Anglican commonwealth theory, and Enlightenment contractarian logic. Lutherans consigned primary marital jurisdiction to the territorial prince or urban council. Calvinists assigned interlocking marital roles to local consistories and city councils. Anglicans left marital jurisdiction to church courts, subject to state oversight and legislation. The early Enlightenment philosophers, many of them Protestants, pressed for a sharper separation of church and state in the governance of marriage, and for stronger protections of the rights and equality of women and children within and beyond the marital household. But they maintained traditional Protestant prohibitions extramarital sex and no-fault divorce in an effort to protect especially women and children from exploitation.
Download the essay from SSRN at the link. 

Looking at Law and Language Scholarship

Elizabeth Mertz, University of Wisconsin, Madison; American Bar Foundation; and Jothie Rajah, American Bar Foundation, have published Language-and-Law Scholarship: An Interdisciplinary Conversation and a Post-9/11 Example at 10 Annual Review of Law and Social Science 169 (2014). Here is the abstract.

Language-and-law research is now an established field for study, with decades of development behind it. And yet the field remains fragmented, with disparate streams of scholarship that, ironically, tend to speak in different languages: linguistic anthropology, discourse studies, semiotics, literary theory and rhetoric, translation studies, sociolinguistics, legal philosophy, and more. On one hand, this broad variety speaks to the robust character of language-and-law studies as a focus for relatively diverse scholarly endeavors. And for a number of reasons, it seems likely that the separate schools of thought in this area will generally continue to pursue their often distinct paths. On the other hand, as this article argues, a careful reading of work in the area reveals the potential for a productive conversation among some very different perspectives. Such a conversation offers the promise of creating exciting bridges among law, the social sciences, and the humanities. It also draws together interest in a variety of kinds of language: spoken, gestural, written, visual. This kind of bridge, we suggest, is one of the gifts of the truly interdisciplinary space opened up by sociolegal research — it permits us to combine quite diverse kinds of knowledge in our quest to more fully understand closely related legal phenomena. In this article, we also combine two different kinds of disciplinary voices, inviting the reader to assess what insights about law arise from these voices separately and, perhaps, together.

The full text is not available for download from SSRN.

Images of the Mexican In Law and Narrative

Deborah M. Weissman, University of North Carolina, School of Law, is publishing The Politics of Narrative: Law and the Representation of Mexican Criminality in the Fordham International Law Journal. Here is the abstract.

Popular narratives often develop in tandem with and within the law and legal discourse. They are both cause and consequence of public mood. This Article addresses the emergence of widely held perceptions of the “Mexican-as-criminal” and Mexico as crime-ridden violence society. It analyzes the narrative as it bears on public policy, national interest, and the formulation of law.
The Article examines the discursive framework of the Mexican-as-criminal at the transnational, national, and local level. It considers how the political use of such constructs act to shape immigration policies through the construction of law that is, in turn, constitutive of the narrative. It then explores alternative uses of the discourse often by well-meaning advocates who avail themselves of the perception of Mexico as a nation of drug violence as the rational for asylum claims. Finally, the Article appraises shifting paradigms: from Mexican-as-criminal (bad neighbor) to Mexican-as-economic (good neighbor) and considers whether this divergence promotes legal policies that serve to foster social inclusion.

The Article concludes by suggesting the need to re-examine the narratives in order to determine who benefits and who is harmed, and ultimately whether the narrative produces a usable framework to understand and resolve the political economic structures that produce violence in Mexico and improve the status of Mexicans in the United States.
Download the article from SSRN at the link. 

November 10, 2014

Parliamentary Habeas Proceedings in the Reign of James I

Donald E. Wilkes, Jr., University of Georgia Law School, has published Habeas Corpus Proceedings in the High Court of Parliament in the Reign of James I, 1603-1625 at 54 Am. J. Legal Hist. 200 (2014). Here is the abstract.

English parliamentary habeas corpus proceedings have been neglected by scholars. This Article ends that neglect. This Article focuses on the parliamentary habeas corpus proceedings that occurred in the reign of King James. The Article corrects several misunderstandings relating to the history of the writ of habeas corpus in England and to the history of the English Parliament (which in the seventeenth century commonly was referred to as the High Court of Parliament).

Part I of the Article provides answers to questions concerning the historical background and context of the parliamentary habeas corpus proceedings in the High Court of Parliament during James I's reign. What was the origin and significance of the term High Court of Parliament? What was the parliamentary privilege of freedom from arrest, the violation of which could lead to the granting of habeas corpus relief by the House of Lords or the House of Commons? What was the civil arrest system in effect in seventeenth century Englanda system which made it likely that from time to time the parliamentary privilege from arrest would be violated and the parliamentary habeas remedy thereupon invoked? What other remedies, apart from habeas corpus, were available to deal with infringements of the parliamentary arrest privilege? And what were the contours of the parliamentary habeas corpus remedy itself, which appears not to have been successfully invoked prior to the reign of James I?

Parts II and III conclusively demonstrate that in the reign of James I the High Court of Parliament at times functioned as the High Habeas Court of Parliament. Part II provides an in-depth account of the habeas corpus proceedings in the House of Lords in the reign of James I, while Part III does the same for the habeas corpus proceedings in the House of Commons during the reign.

The Article concludes with a detailed discussion of the three major changes this work mandates in our understanding of English legal history.

Download the article from SSRN at the link. 

November 7, 2014

Is Zombification Illegal?

Well, it depends. Of course, you knew I was going to say that. Here's more, courtesy of my good friend Lyonette Louis-Jacques. More law and zombie-ness here from the Law Library of Congress.

Hat tip to Susan Gualtier of the LSU Law Center Library for sending me the links.

For more about law and zombies and whatever, see

Michael L. Smith, Prosecuting the Undead: Federal Criminal Law in a World of Zombies, 61 UCLA L. Rev. Disc. 44 (2013).


John Schwartz, Estate Planning for Zombies, New York Times, July 7, 2012

November 6, 2014

Copyright Marches On Its Stomach?

Michela Giorcelli, Stanford University Department of Economics, and Petra Moser, Department of Economics & National Bureau of Economic Research, have published Copyright and Creativity – Evidence from Italian Operas. Here is the abstract.

This paper exploits variation in the adoption of copyright laws within Italy – as a result of Napoleon’s military campaign – to examine the effects of copyrights on creativity. To measure variation in the quantity and quality of creative output, we have collected detailed data on 2,598 operas that premiered across eight states within Italy between 1770 and 1900. These data indicate that the adoption of copyrights led to a significant increase in the number of new operas premiered per state and year. Moreover, we find that the number of high-quality operas also increased – measured both by their contemporary popularity and by the longevity of operas. By comparison, evidence for a significant effect of copyright extensions is substantially more limited. Data on composers’ places of birth indicate that the adoption of copyrights triggered a shift in patterns of composers’ migration, and helped attract a large number of new composers to states that offered copyrights.
Download the paper from SSRN at the link. 

November 4, 2014

The Early History of U.S. Federal Judicial Selection

Michael J. Gerhardt, University of North Carolina, Chapel Hill, School of Law, and Michael Ashley Stein, William & Mary Law School, are publishing The Politics of Early Justice, Lower Court Federal Judicial Selection 1789-1861 in the Iowa Law Review. Here is the abstract. 

Almost every commentary on the history of the selection of federal judges presumes that there was some prior golden era in which national political leaders focused primarily on the merit of individual nominees and were not unduly swayed by partisan politics or ideology. Numerous constitutional scholars — and national leaders — have therefore roundly criticized the modern day judicial selection process, citing unprecedented delays and a low percentage of approval of federal court nominees as evidence that the system has broken down. They have argued that the ways in which senators, as well as presidents, have handled lower court nominations in the modern era have deviated from how the nation’s first chief executives and the first few Senates handled such nominations. Yet, there is one glaring omission in almost all commentaries on disputes over judicial selection over the past few decades — the absence of any substantiation of an earlier, so-called golden era, in which there actually was general deference within the Senate to presidents’ nominations to federal district and appellate judgeships. Even the classic work on federal judicial selection by the late Kermit Hall begins its analysis of federal judicial selection in 1825, disregarding nearly forty years of prior practices in the field and reinforcing the received but unsubstantiated assumptions about how judicial nominations to lower courts fared beforehand.
This Article is the first to make a serious comprehensive historiography of federal judicial selection from 1789-1861 in the United States. Following six years of archival and secondary source research, we identified each of the lower court nominations made by presidents from George Washington through James Buchanan and then tracked the Senate’s actions on each of their nominations through both archival and secondary sources. Further, we identified the criteria employed in the first seven decades of judicial nominations as well as the outcomes of, and grounds for, the Senate’s proceedings for all of these nominations. We believe that the results of this unprecedented study are significant because they provide a window into an era of early federal judicial selection that has been virtually ignored by both commentators and national political leaders. While we identified some antiquated practices, such as several of the earliest presidents’ judicial nominees actually declining judgeships after the Senate had confirmed their nominations, we found other patterns of practice that are similar to contemporary developments. Among the most significant of these latter patterns are the facts that: every antebellum president took political considerations into account in making nominations; all antebellum presidents, with the exception of William Henry Harrison, had most of their judicial nominations confirmed by the Senate; and three antebellum presidents — George Washington, Martin Van Buren, and James Polk — enjoyed 100% of their judicial nominations confirmed by the Senate. Yet, political parties, particularly in times of divided government, often split along party lines in judicial confirmation proceedings, and several judicial nominations in the antebellum period failed because of opposition based on the particular nominees’ ideologies or past political decisions. In short, there was no golden era of judicial nominations but rather different eras in which politics, in different ways, shaped federal judicial selection.

Download the article from SSRN at the link. 

November 3, 2014

The History of the Law of Suicide

Danuta Mendelson, Deakin University School of Law, and Ian Freckelton, University of Melbourne, have published The Interface of the Civil and Criminal Law of Suicide at Common Law (1194-1845) at 36 International Journal of Law and Psychiatry 343 (2013). Here is the abstract.

Nowadays, suicide is considered essentially a private act, although what constitutes suicide for epidemiological and even clinical purposes in not wholly resolved. Historically, however, at common law, the act of self-killing was a felony with significant religious and legal consequences that impacted upon the deceased person as well as upon his or her whole family. This article identifies the influence of Christian theology, legal theory, and social and medical developments upon attitudes to the felony of self-murder and its definition. It focuses upon what it identifies as the start of a liberalisation in more psychologically informed attitudes manifested in landmark court judgments involving exclusion clauses in insurance contracts in mid-nineteenth century England. The article illustrates that the law in respect of socially controversial matters neither necessarily develops in a linear progression, nor accurately reflects public sentiments. More specifically, it describes an ongoing definitional conundrum with suicide – whether it should be designated as committed by persons of significantly impaired mental state. It observes that in spite of reform to the criminal law of suicide, the civil law relating to suicide has continued to be characterized by ambivalence, ambiguity and significant vestiges of counter-therapeutic moralizing.

Download the text from SSRN at the link. 

A Seminar On Jorge Luis Borges and the Law

From Jose Calvo Gonzalez, news of an interesting event taking place on November 19, 2014 at the Universidade Federal da Paraiba (UFPB).

Jorge Luis Borges and the law: a stroll through the garden of forking paths Seminar, Center for legal sciences of the Universidade Federal da Paraíba (UFPB). João Pessoa (PB). Brazil, 
Nov. 19, 2014, 2 p.m  to 5 p.m. 

Program: Prof. Dr. José Calvo Gonzalez (Universidad de Málaga). " From a crossroads with Borges. On legal science and legal production "
Panelists: Prof. Dr. Marcilio Toscano Franca Filho and Prof. Dr. Eduardo Ramalho Rabenhorst
Coordination: Prof. Dr. Marcilio Toscano Franca Son
Realization: International Laboratory investigations in Transjuridicidade
(MINOTAUR) and postgraduate program

Jorge Luis Borges e o Direito: um passeio pelo jardim de caminhos que se bifurcam Seminário 
Centro de Ciências Jurídicas da Universidade Federal da Paraíba (UFPB). João Pessoa (PB). Brasil 
Horário: das 14 às 17h
Conferencista: Prof. Dr. José Calvo González (Universidad de Málaga). "Uma encruzilhada junto com Borges: sobre ciência jurídica e produção normativa"
Debatedores: Prof. Dr. Marcílio Toscano Franca Filho e Prof. Dr. Eduardo Ramalho Rabenhorst
Coordenação: Prof. Dr. Marcílio Toscano Franca Filho

Realização: Laboratório Internacional de Investigações em Transjuridicidade (LABIRINT) e Programa de Pós-Graduação

Link to the website here.

October 31, 2014

And Next Comes Verona: An International Conference On Fables of the Law

The Department of Foreign Languages and Literatures, the School of Law, and AIDEL (Associazione Italiana Diritto e Letteratura) are sponsoring an International Conference, Fables of the Law, November 12-14, in Verona. There are so many fascinating papers listed to be presented: I'll pick just three to mention here: Fable, Fiction, Truth? What Does Literature Know About Law? (Julia Chrystossalis), Witches and Kings: James I and His Jurisdiction Over Magic at the Root of the Modern "Demonology of Sovereignty," (Pier Giuseppe Monateri), and Earth Jurisprudence and the Myth of Gaia (Valentina Adami).

Call For Papers, Law's Pluralities, May 6-8, 2015

From Daniela Carpi, University of Verona, an announcement of a call for papers for the conference, Law's Pluralities, to be held May 6-8, 2015.

Here's more about the conference from the website.

In May 2015 the conference “Law’s Pluralities” will take place at Justus Liebig University Giessen/Germany. In a series of keynote presentations by experts and in panel sessions and discussions, as well as in an exhibition it will explore cultural constructions of law. We invite academic contributions in the conference languages English and German.
The conference and exhibition is organized at Justus Liebig University Giessen by the International Graduate Centre for the Study of Culture (GCSC) in cooperation with the  Department of English, the Rudolf-von-Jhering Institute, and in cooperation with the Neue Giessener Kunstverein. Contact:

Brains Eating Themselves

The Chronicle of Higher Education has a good article today at its website on the links among zombie studies, navel gazing, and well, the inevitable. Link here.

A New Blog and a New Book of Interest

John Denvir, Research Professor of Law at University of San Francisco Law School, has launched a new blog, Guile Is Good, in conjunction with his new book, Guile Is Good (available through Amazon in both paperback and Kindle versions). Here's an excerpt from the book's introduction:

I want to tell the story of how lawyer creativity and craft shape the world we live in. Since humor often reveals truths that more serious talk misses, let me start with a lawyer joke that encapsulates my thesis.
A university search committee is interviewing candidates for the presidency of the university. One candidate is a mathematician, another a sociologist, and the third a lawyer. At the end of each interview, one member of the committee throws in a final question: “Excuse me, but can you tell us how much is two plus two?”
The mathematician responds, “That is a really complex question, but for present purposes we can say that if you take an abstract two and add another abstract two, you get an abstract four.” The questioner thanks him for his answer.
The sociologist is asked the same question at the end of her interview. She replies that “this is an empirical question that requires very careful collection and analysis of data, but roughly the range is from three to five with a mean of about four.” The questioner thanks her for her answer.
As he is about to leave the interview room the lawyer is also asked, “How much is two and two?” The lawyer slowly turns around, approaches the committee, and inquires in a soft voice, “How much do you want it to be?”
The lawyer gets the job.
The punch line anticipates the thesis of this small book—the public respect and fear lawyers because they sense we use our creativity and craft (and craftiness) to shape the world. As lawyers, we should take great pride in the power our skills provide us and think carefully about how we choose to employ them.
Professor Denvir is also the author of Legal Reelism: Movies as Legal Texts (University of Illinois Press, 1996) and Freeing Speech: The Constitutional War Over National Security (New York University Press, 2012).

October 29, 2014

Full U.S. Breakfast

Ross E. Davies, George Mason University School of Law, and The Green Bag, has published Breakfast with the Justices: Networking in the Nineteenth Century at The Green Bag Almanac & Reader 109 (2014). Here is the abstract.

On Thursday, September 15, 1887, the Philadelphia bar hosted a lavish “Breakfast to the Justices of the Supreme Court of the United States” in that city’s American Academy of Music building. It was the first of a series of events — parades, ceremonies, speeches, and so on — celebrating the centennial of the Constitution of the United States. Some, like the “Breakfast to the Justices,” were by invitation only. Others were open to the public and attracted large crowds — the biggest were probably the “Civic and Industrial Procession” on September 15 and the “Memorial Day Ceremonies in Independence Square” on September 17. All those big events, both the private and the public, surely were exciting at the time and merit further study today. But the focus of this little essay is elsewhere — on a pair of small but instructive (and perhaps also amusing) aspects of the inner workings of the “Breakfast to the Justices.”
Download the text from SSRN at the link. 

October 28, 2014

Controversy Over Metropolitan Opera Presentation of "The Death of Klinghoffer"

The Metropolitan Opera has moved ahead with a presentation of John Adams' opera The Death of Klinghoffer despite many protests that the work glorifies anti-Semitism. Here's an account from the New York Times. The New Yorker first covered such objections back in June. Here's a link to the Met website for the piece. Here's a review from the New Yorker.

Leon Klinghoffer was murdered by Palestinian terrorists during a hijacking in 1985 aboard the cruise ship the Achille Lauro. The terrorists forced two crew members to throw his body overboard in the waters off Syria. The Syrians eventually recovered his body and returned it to the United States.

A DVD of The Death of Klinghoffer is available from Decca. Singers include Sanford Sylvan, Christopher Maltman, and Yvonne Howard. The composer conducts the London Symphony Orchestra.

The story has also been filmed as Voyage of Terror: The Achille Lauro Affair, starring Burt Lancaster and Eva Marie Saint (1990).

On the events during and after the hijacking see

Michael K. Bohn, The Achille Lauro Hijacking: Lessons in the Politics and Prejudice of Terrorism (Potomac Books, 2004).

Antonio Cassese, Terrorism, Politics, and Law: The Achille Lauro Affairs (Princeton University Press, 1989).

Literature and Comparative Law

Eric Heinze, Queen Mary University of London, School of Law, is publishing The Literary Model in Comparative Law in the American Journal of Comparative Law. Here is the abstract.

Legal theory, if it is to attain any level of generality, makes difficult, sometimes unacknowledged assumptions about geography and history. Comparative law enters as a corrective. It tempers unwarranted notions about such basic concepts as ‘norm’, ‘practice’, ‘power’, ‘process’, or ‘procedure’. This essay does not propose any systematic method for scrutinising such concepts. It instead examines possible insights offered by a comparative literary model, which can shed some light on the methods of comparative law. Brief examples from Shakespeare, Racine, and Corneille are introduced to identify obstacles of universality and relativism — or rather, of ‘comparative continuity’ and ‘comparative discontinuity’ — as they arise relative to the emergence of the nation state in late 16th and 17th century Western Europe.
Download the full text of the essay from SSRN at the link.