June 21, 2018

Patrick on Evocative Advocates and Stirring Statesmen: Law, Politics, and the Weaponization of Imagery

Carlton Patrick, University of Central Florida, is publishing Evocative Advocates and Stirring Statesmen: Law, Politics, and the Weaponization of Imagery in volume 2 of the Evolutionary Studies in Imaginative Culture (Fall 2018). Here is the abstract.
This article shows how descriptive imagery can be used to hijack evolved psychological instincts and prejudice the judgments of others, particularly in the legal and political domains. By mimicking the cues that represented threats to our ancestors, those wishing to color the perception of others can subtly trigger the affective responses that evolved to help navigate ancestral threats. When this happens, logic may be unseated in favor of deep-seated instinctual responses, often to a problematic degree. In this way, lawyers, politicians, and activists, taking a page out of the playbook of novelists and other storytellers, can weaponize words, images, descriptions, and narratives to (often improperly) sway the opinions of others.
Download the article from SSRN at the link.

Matei on Art on Trial: Freedom of Artistic Expression and the European Court of Human Rights

Andra Matei has published Art on Trial. Freedom of Artistic Expression and the European Court of Human Rights. Here is the abstract.
The way that art is judged in the courtroom shapes the way it is perceived at large and has a direct consequence on how it can be appreciated by the society. Surely, not all art is to everybody's liking. Even the judges at Strasbourg fall into subjective definitions of artistic merit sometimes, despite their commendable attempts to stay detached and open-minded. In the recent Sinkova v. Ukraine case, a divided Fourth Section of the European Court of Human Rights ruled that the applicant's conviction for an artistic performance featuring the applicant frying eggs over the Eternal Flame at a war memorial, did not breach her freedom of expression; finally, protecting the memory of soldiers from insult, outweighs the applicants right to free expression. The artistic nature of the applicant's actions is ignored by the ECtHR and in the absence of an explanatory context, the performance is dismissed as a senseless provocation. But how informed are judges in art theory and form and on what grounds do they speculate about artistic merit and motive? This essay will focus on the significance the ECtHR attaches to the protection of artistic expression and the ways in which it regulates the dynamics between artistic freedom and public morals. A cursory review of the relevant case-law (cases which have at their center controversial artworks) will show that, more often than not, when freedom of artistic expression is set against the need to protect public morals, or "the rights of others", the ECtHR favors the latter.
Download the article from SSRN at the link.

Schauer on Law as a Malleable Artifact

Frederick Schauer, University of Virginia School of Law, is publishing Law as a Malleable Artifact in Law as an Artifact (Lukas Burazin, Kenneth Einar Himma, and Corrado Roversi, eds., Oxford University Press, 2018 Forthcoming). Here is the abstract.
Within contemporary analytic philosophy of law, most of the scholars who understand themselves to be engaged in conceptual analysis of the concept of law perceive that project to be analytic and descriptive, but not normative. But the concept of law is itself a human creation, and what humans can create humans can also re-create. And thus there is a different project of conceptual prescription or conceptual revision, one in which the goal is to reflect on (and to prescribe, at times) on how a society ought to understand the very idea of law – what concept of law a society ought to have. This project, which under one reading may have informed both H.L.A. Hart and Lon Fuller in their 1958 debate, need not displace the analytic/descriptive project of conceptual analysis of the concept of law, but, given its provenance going back at least as far as Jeremy Bentham, nor should it be dismissed from what John Austin labeled “the province of jurisprudence.”
Download the essay from SSRN at the link.

June 20, 2018

Superheroes and Immigration @nancywyuen @INHERITANCEmag

Giovanny Panginda and Gene Luen Yang explore the ethnic origins of comic book superheroes for inheritancemag.com. Such characters come to the U.S., or countries, fleeing natural disasters or war, and they come without papers. The authors note in part,

Not only is Superman an immigrant, more specifically, he is a refugee, one forced to leave his country because of war, persecution, or natural disasters. Superman's cultural narrative starts with him as a baby on the planet Krypton, where his parents send him to Earth not just to escape the planet's destruction, but to offer him a chance at a better life.

Although we usually think of Superman as the great icon of "truth, justice, and the American Way," we often forget that he started out as a foreigner, and a literal unaccompanied minor alien. 


Via @nancywyuen.

Gaughan on D-Day, Collateral Damage, and the 1923 Hague Draft rules of Aerial Warfare

Anthony J. Gaughan, Drake University Law School, has published D-Day, Collateral Damage, and the 1923 Hague Draft Rules of Aerial Warfare. Here is the abstract.
This paper examines the question of whether the adoption of the 1923 Hague Draft Rules of Aerial Warfare as binding international law might have changed the outcome of the D-Day invasion during World War II. The delegates to The Hague conference proposed a severe restriction on the use of air power in urban areas, but the rules were never adopted as international law. Two decades later, the international community’s failure to adopt the 1923 Hague Draft Rules had a significant impact on the D-Day invasion. On June 6, 1944, the Allies mounted the largest amphibious operation in history as 150,000 troops stormed the Normandy beaches of Nazi-occupied France. The landings succeeded in no small part because of the Allied air forces, which mounted a massive interdiction campaign to prevent the German army from rushing to the French coastline and destroying the Normandy beachhead. Operation Overlord, the code name for the D-Day invasion, marked a major turning point in the war, accelerating the collapse of Nazi Germany, which surrendered 11 months later. As the historian Ian Kershaw has observed, Operation Overlord marked “the beginning of the end for the Third Reich.” The D-Day air campaign, however, came at a severe cost for French and Belgian civilians. At least 12,000—and possibly more than 25,000—French and Belgian civilians died as unintended casualties of the Allied bombing campaign. Although the Allied air strikes clearly played a critical role in interdicting the German army, it was by no means clear that the vast scale of the bombing was necessary. Whether the interdiction objectives could have been achieved by a more modest—and less destructive—air campaign was an open question at the time and remains so for many historians today. One of the principal reasons why the Allies implemented a massive area bombing campaign against French and Belgian rail centers was because international law did not provide clear guidance regarding air warfare. But it might have had the 1923 Hague Draft Rules of Aerial Warfare been adopted as binding international law. The Draft Rules prohibited area bombing in urban areas, which is precisely what the Allies engaged in during the D-Day air campaign. Had the Rules been in effect in 1944, the Allied air campaign in support of the D-Day operation may well have been much more modest in nature. But would the reduction in collateral damage have come at the cost of jeopardizing the invasion’s success? The story of The Hague Draft Rules and the controversy over the D-Day air campaign demonstrates the unique challenges and inherent complexity of the effort to use international law to protect civilian populations during wartime.
Download the article from SSRN at the link.

June 19, 2018

ICYMI: Bailey and Knight on Writing Histories of Law and Emotion @drkjknight

ICYMI: Merridee L. Bailey and Kimberley-Joy Knight, Writing Histories of Law and Emotion, 38 Journal of Legal History 117 (2017). Here is the abstract.
In recent years the study of emotions in the past has received considerable attention. At the same time, many historians of law have shown reluctance to acknowledge and systematically explore emotions in legal sources and legal contexts. This issue of the Journal of Legal History addresses this imbalance and demonstrates how emotions have played important roles in legal reasoning, legal doctrine, the behaviour of legal actors, and the development of law over time. This article investigates recent developments in the study of the history of emotions and of emotions in contemporary law, before assessing the challenges of writing law and emotions histories. It argues for the importance of utilizing both legal and extra-legal source material to uncover the relationship between legal rationality and emotion; to gain insights into the emotional worlds of those participating in legal systems; and to provide a deeper understanding of the workings of the law.

Klein and Matson on Mere-Liberty in David Hume @MasonEconomics

Daniel B. Klein and Erik Matson, both of George Mason University, Department of Economics, are publishing Mere-Liberty in David Hume in A Companion to David Hume (Universidad Francisco Marroquin). Here is the abstract.
What does Hume mean by liberty? Though clearly important to him, Hume never clarifies the matter explicitly. In his texts, liberty often seems to be a matter of government rules being certain, general, regular, etc., and often a matter of political form or constitution—the place of parliament or republicanism, checks to power, and so on. Many scholars have highlighted such ideas as Hume's idea of liberty. We argue that liberty in Hume bears a central meaning: liberty is a flipside of (commutative) justice. The basic injunction of (commutative) justice is to not mess with other people’s stuff. The flipside is: Others not messing with one's stuff. And it is especially in relation to government (as opposed to, say, a robber) that that flipside concept is what Hume often signifies with the word liberty. Because liberty is polysemous in Hume's writings, we call that meaning “mere-liberty.” Hume sees the achievement of high degree of mere-liberty as dependent on authority, which itself depends on contraventions of mere-liberty. We advance mere-liberty not against the other meanings, but with them, with mere-liberty central to Hume’s political outlook.
Download the essay from SSRN at the link.

Brooks and Sankey on the Legal Importance of Emotions @thom_brooks @LJMU

Thom Brooks, Durham University, and Diana Sankey, Liverpool John Moores University, have published Beyond Reason: The Legal Importance of Emotions in Ethical Rationalism and the Law 131-148 (Patrick Capps and Shaun D. Pattison eds., Oxford/Hart, 2018). Here is the abstract.
Deryck Beyleveld has forged a theory of ethical rationalism that has made an important impact on legal and moral philosophy—that this collection of essays makes clear. He has not only refined and improved the original account developed by Alan Gewirth, but provides us with ethical rationalism’s most prolific defender today. One area of particular insight is Beyleveld’s many applications of ethical rationalism to practice and, most especially, to medical law and ethics which has been especially influential. This work has set the bar for all proponents and critics alike. We focus narrowly on a specific concern that we have with ethical rationalism: its primacy of rationality over other characteristics, such as our emotions. This is not to deny the importance of reason in our thinking about law and ethical concerns. But we have concerns with any view that holds that reason is the only key to how any tensions should be resolved. Such a position claims for reason a privileged status it does not have or merit. One problem for us is that, in our view, ethical rationalism does not appear to adequately consider the importance of emotions and so it does not provide a satisfactory account of law and morality as a result. We examine this concern in the first part of our chapter. This chapter’s second part raises concerns with the application of ethical rationalism as a model for understanding sexual offences. We highlight both the need to foreground emotion in order to understand the current law, as well as the dangers from a normative perspective of appearing to marginalise the role of emotion in sexual offences. Not only would a prioritisation of rationality fail to reflect the role emotion can play in current rape law, but we would argue, is particularly problematic in this area of law in terms of promoting justice. In summary, Beyleveld’s ethical rationalism exercises an important impact on legal theory and legal practices. Nonetheless, we raise some reservations about its connection to these impacts that lead us to support revisions to this approach.
Download the essay from SSRN at the link.

June 14, 2018

Women's Legal Landmarks: Celebrating 100 Years of Women and the Law in the UK and Ireland: Forthcoming From Hart Publishing @hartpublishing

Forthcoming from Hart Publishing: Women's Legal Landmarks: Celebrating 100 Years of Women and Law in the UK and Ireland (Erika Rackley and Rosemary Auchmuty, eds., Hart Publishing, 2018). Here is a description of the book's contents.
Women's Legal Landmarks commemorates the centenary of women's admission in 1919 to the legal profession in the UK and Ireland by identifying key legal landmarks in women's legal history. Over 90 authors write on landmarks that represent a significant achievement or marked an important stage or turning point in women's engagement with law and law reform. The landmarks embrace a wide range of topics, including the right to vote, equal pay, forced marriage, sexual violence, abortion and the ordination of women bishops, as well as the life stories of women who were the first to undertake key legal roles and positions. The collection was produced using an established feminist practice whereby each contribution was presented in collaborative workshops to ensure shared knowledge and insights into both the legal area and the historical context. Women's Legal Landmarks offers a scholarly intervention into the recovery of women's lost history, employing the methodology of feminist legal history to provide accounts which are accurate as to both law and historical context and which, taken together, demonstrate women's agency and activism in the achievement of law reform and justice.

Media of Women's Legal Landmarks 

June 13, 2018

Literature and the Judicial Opinion

Via Benjamin Woodring, news that Judge Michael Baylson went literary in his ruling in favor of the City of Philadelphia, finding that the federal government cannot cut off funding because the city insists it will only surrender undocumented immigrants if the feds have proper warrants. Here, courtesy of Dr. Woodring, is a link to Judge Baylson's opinion. It begins with quotations from Hamlet and Coriolanus and from Dr. Woodring's own article Liberty to Misread, published in the Yale Journal of Law & the Humanities, and continues to the Odyssey.

I think a lot of literature profs out there must be very pleased! More about the law and literature references in this opinion here in an Atlantic essay by Walt Hunter of Clemson University, one of the aforementioned lit profs.

Law and the humanities lives!

June 12, 2018

Owley and Phelps on Understanding the Complicated Landscape of Civil War Monuments @JessicaOwley

Jessica Owley, University at Buffalo Law School, and Jess R. Phelps, Dinse, Knapp, & McAndrew, have published Understanding the Complicated Landscape of Civil War Monuments at 93 Indiana Law Journal Supp. 15 (2018). Here is the abstract.
This essay examines the controversy regarding confederate monuments and attempts to contextualize this debate within the current preservation framework. While much attention has been paid to this topic over the past year, particularly with regard to “public” monuments, such discussion has generally failed to recognize the varied and complicated property law layers involved—which can fundamentally change the legal requirements for modification or removal. We propose a spectrum or framework for assessing these resources ranging from public to private, and we explore the messy space in-between these poles where most monuments actually fall. By highlighting these categories, we provide an initial introduction of a typology for evaluating confederate monuments, serving as a foundation for an exploration into the nature of property law and monument protection.
Download the Essay from SSRN at the link.

June 11, 2018

Forthcoming from Routledge: Pierre Legendre: Lessons III: God in the Mirror: A Study of the Institution of Images (2018) @routledgebooks

Forthcoming: Pierre Legendre, Lessons III: God in the Mirror: A Study of the Institution of Images (Translated by P. G. Young (Routledge, 2018). Here from the publisher's website is a description of the book's contents.
In the context of our increasingly global legal order, Pierre Legendre’s God in the Mirror reconsiders the place of law within the division of existing bodies of knowledge. Navigating the texts of Ovid, Augustine, Roman jurists, medieval canon lawyers, Freud, Lacan, the notebooks of Leonardo de Vinci, and the paintings of Rene Magritte, this third volume of Pierre Legendre’s Lessons focuses on the relation of the subject to the institution of images. Legendre tracks the origins and vicissitudes of the specular metaphor within western history, carrying out a critique of its dependence on the discourse of the Imago Dei. A crucial landmark within Legendre’s ongoing reconsideration of a medieval ‘revolution of interpretation’, this book dissociates the western normative tradition from its mythic foundation, separating theology and law. It thereby documents the advent of modern rational doubt, as a new legal foundation or ground: one that, for Legendre, was not only a revolutionary invention, but one that produced the modern European idea of the State.

Civil Rights Attorney Ben Crump's New Series Evidence of Innocence Now Airing On TV One @tvonetv @BenCrumpLaw @FSUCollegeofLaw @AttorneyCrump

Via the National Law Journal:

Noted civil right attorney Ben Crump is launching Evidence of Innocence, a new television show devoted to exploring the stories of the wrongly convicted. In an interview with Angela Morris of the NLJ, he explained,

One thing we are trying to do with the show is affect the hearts and minds of prospective future jurors who will be sitting in court passing judgment. The message is simple: Don’t take what the police and prosecutors say, their narrative, as the gospel and disbelieve the poor people of color. You see in this show there are a lot of nefarious things being done by government officials who are convicting and incarcerating many people who are innocent—especially people of color.

 The show's first episode aired June 4. 

From José Calvo González, A New Book on Law and Literature @jcalvo11

José Calvo González, University of Malaga, has published La destreza de Judith: Estudios de Cultura literaria del Derecho (Granada: Editorial Comares, 2018).


Strang on An Evaluation of Historical Evidence for Constitutional Construction From the First Congress's Debate Over the Constitutionality of the First Bank of the United States

Lee J. Strang, University of Toledo College of Law, has published An Evaluation of Historical Evidence for Constitutional Construction From the First Congress’ Debate Over the Constitutionality of the First Bank of the United States at 14 University of St. Thomas Law Journal 193 (2018). Here is the abstract.
In this Essay, I review a modest selection of important evidence from the early Republic, the debate over the constitutionality of the First Bank of the United States in the First Congress, to evaluate whether, to what extent, and how Americans utilized constitutional construction in the early Republic. This Essay derives a number of tentative conclusions from this evidence. First, the participants in this early debate appeared to believe that a necessary precondition for constitutional construction — underdeterminacy — existed. Second, the participants also argued as if, after the application of a number of interpretative rules, the Constitution provided a determinate answer to the constitutional question. Third, the participants seemed ultimately to conclude that the Constitution’s meaning provided a determinate answer to the question under debate (though they continued to disagree about what that answer was).
Download the essay from SSRN at the link.

Ho on Chinese Legal Thought in the Han-Tang Transition: Liu Song's Theory of Adjudication

Norman Ho, Peking University School of Transnational Law, is publishing Chinese Legal Thought in the Han-Tang Transition: Liu Song's (D. 300) Theory of Adjudication in volume 35 of the UCLA Pacific Basin Law Journal (2018). Here is the abstract.
This article explores and analyzes the fourth century Chinese legal official and legal scholar Liu Song’s (d. 300) theory of adjudication through a full translation into English (the first translation of its kind) of his famous “Memorial on Adjudication,” which urged judicial and legal reforms during the reign of Emperor Hui (r. 290–306) of the Western Jin dynasty (265–316). This article argues that Liu believed that written law should reign supreme over other factors (e.g., societal needs, public opinion) in adjudicating cases. He was also one of the first major Chinese legal thinkers to explicitly set forth what we would today call the “legality principle.” But while Liu’s theory of adjudication was centered on written law, it was also motivated by a desire to control the power and discretion of judicial officials and preserve the authority of the emperor. Liu’s theory of adjudication is significant in the history of Chinese legal thought as it runs counter to the so-called “qing-li-fa” (QLF) theory of adjudication, which has strongly influenced contemporary theoretical accounts and descriptions of traditional Chinese law as a whole. This article also briefly considers Liu’s theory in a comparative legal theory perspective, arguing that Liu’s theory is different from key Western theories on adjudication— namely, Hart’s and Dworkin’s theories of adjudication with respect to hard cases. Finally, this article also briefly discusses the relevance of Liu Song’s legal thought to 21st century Chinese law, given the current Chinese leadership’s penchant for using traditional Chinese political and legal philosophy as sources and justifications for government and administration. This article suggests that Liu Song is a figure whose legal thought could be equally palatable to rule of law reformers and more conservative party officials in China today.
Download the article from SSRN at the link.

June 10, 2018

"The Staircase" Returns on Netflix @netflix @The_Staircase

The remarkable 8 part 2005 documentary The Staircase, which first aired in 2005, has gotten an update and has returned to Netflix as a 13 parter. Jean-Xavier de Lestrade's examination of TV executive Kathleen Peterson's death, and the subsequent trial of her husband, novelist Michael Peterson, for that death, continues to fascinate.

Mr. Lestrade's work has influenced newer looks at true crime, such as Making a Murderer. The Staircase is a chance to see the beginnings of the serial documentary movement.  More here from the New York Times.

More about the background of the case and the film here from The Cut,  Esquire. More about Mr. Peterson's life after the trial and conviction (he took an Alford plea in 2017) here.

If you want to compare tragedy and comedy, try out Trial and Error, the comedy legal series starring John Lithgow and Nicholas D'Agosto. Lithgow is poetry professor Larry Henderson, accused of killing his wife; D'Agosto is the hapless lawyer hired to defend him. The plot reflects the Peterson case, but it adds in a number of familiar legal show tropes (attraction between the defense attorney and the prosector, an eccentric but capable private investigator). More here from the New Yorker.

Death In Paradise (Season Seven) Now Available on Amazon Prime @deathinparadise

The seventh season of Death in Paradise is now available for streaming on Amazon Prime. This very popular series now features a new D.I., Jack Mooney,  along with the Saint Marie team of Officer Myers, Sergeant Cassel, Officer Hooper, Superintendent Patterson, Mayor Bordey, and of course, Harry the lizard. The plots are a little less mysterious than in previous seasons, but the island is still beautiful and the characters are always as charming. Might I point out, though, that we've had four white men in charge posted to Saint Marie as D.I.s? That's counting the one whose murder started it all, D. I. Charlie Hulme, D.I. Richard Poole, who arrives from the U.K. to solve his murder, D.I. Humphrey Goodman who arrives from the U.K. to solve his murder, and D.I. Jack Mooney who flies over from the U.K. (although he's Irish), to replace D.I. Goodman, who returns to the U.K. to stay with his--Goodman's--girlfriend. Maybe the next D.I., assuming we have one, could be female? A person (woman) of color? Women also know things.

Willdenthal on Reflections on Spelling and the Shakespeare Authorship Question

Bryan H. Wildenthal, Thomas Jefferson School of Law, is publishing Reflections on Spelling and the Shakespeare Authorship Question: 'What's in (the Spelling of) a Name?' at the Shakespeare Oxford Fellowship website (Forthcoming). Here is the abstract.
What’s in a name? Perhaps, as Juliet recognized, not much (see Romeo and Juliet, act 2, sc. 2). This essay argues that the differences in spelling between “Shakspere,” “Shakespeare,” and their variants do not in themselves provide a very strong argument for doubt about the authorship of the works of "William Shakespeare" (the likely pseudonym of Edward de Vere, 17th Earl of Oxford, 1550-1604), conventionally said to be written by William Shakspere of Stratford-upon-Avon (1564-1616). While this essay does not go as far as the late Oxfordian scholar Peter Moore (one of our best), who called it a “zero argument,” it does agree with Moore—and to some extent with David Kathman, a Stratfordian scholar—that many non-Stratfordians have placed too much emphasis on spelling issues. But the spelling issues do raise interesting questions as part of the broader Shakespeare Authorship Question (SAQ). They add to the evidence indicating early doubts about the identity of the author “Shakespeare,” the subject of Professor Wildenthal's 2017 conference presentation and forthcoming book.
Download the article from SSRN at the link.

June 9, 2018

ICYMI: Shaw on Law and the Passions: A Discrete History @routledgebooks @dmuleicester ‏

ICYMI:

Julia Shaw, De Montfort University, has published Law and the Passions: A Discrete History (Routledge Publishing, 2016). Here from the publisher's website is a description of the book's contents.

 Although the connection of law, passion and emotion has become an established focus in legal scholarship, the extent to which emotion has always been, and continues to be, a significant influence in informing legal reasoning, decision-making, decision-avoidance and legal judgment – rather than an adjunct – is still a matter for critical analysis. Engaging with the underlying social context in which emotional states are a motivational force – and have produced key legal principles and controversial judgments, as evidenced in a range of illustrative legal cases – Law and the Passions: A Discrete History provides a uniquely inclusive commentary on the significance and influence of emotions in the history and continuing development of legal institutions and legal dogma. Law, it is argued, is a passion; and, as such, it is a primarily emotional endeavour.

Note: The publisher's page says both that this book was published in 2016 and that it is forthcoming in 2018, so I'm not sure whether it's published or is forthcoming. ?? 

June 8, 2018

Davies on Ranking the Olympians Before U.S. News @GB2d

Ross E. Davies, George Mason University Law School, has published Ranking the Olympians Before U.S. News: When Vanity Fair and The Bookman Told Their Readers Who Really Mattered at 21 Green Bag 2d 241 (2018). Here is the abstract.
When were the first law-related rankings published? Answering that question would be like determining when the first baseball game was played. You would have to start by settling fundamental and disputable definitional issues: What is a publication (or what is baseball)? What counts as a ranking (or a game)? And so on. Experts, even those who are most eminently knowledgeable and admirably reasonable, sometimes disagree about such things. Then, if you were to miraculously manage to settle all such matters of meaning, you would have to look everywhere that such a ranking might have been published (or such a game recorded). That is too much. Better to work incrementally – to report ever-earlier sightings as you find them and hope that definitional consensuses grow as unexplored territories shrink. That is the spirit in which I offer this report on two sets of rankings published in the early 20th century.
Download the article from SSRN at the link.

June 7, 2018

Marrani on Space, Time, Justice: A New Book From Routledge Publishing @routledgebooks @Doubledegree

David Marrani, Dean, Institute of Law, Jersey, has published Space, Time, Justice: From Archaic Rituals to Contemporary Perspectives (Routledge, 2018). Here from the publisher's website is a description of the book's contents.
This book merges philosophical, psychoanalytical and legal perspectives to explore how spaces of justice are changing and the effect this has on the development of the administration of justice. There are as central themes: the idea of transgression as the starting point of the question of justice and its archaic anchor; the relation between spaces of justice and ritual(s); the question of use and abuse of transparency in contemporary courts; and the abolition of the judicial walls with the use of cameras in courts. It offers a comparative approach, looking at spaces of justice in both the civil and common law traditions. Presenting a theoretical and interdisciplinary study of spaces of justice, it will appeal to academics in the fields of law, criminology, sociology and architecture.

 Space, Time, Justice: From Archaic Rituals to Contemporary Perspectives (Hardback) book cover

June 4, 2018

Conference: Law and Poetics in Early Modern England and Beyond, July 2-4, 2018, University of Cambridge @CRASSHlive @Rachel_E_Holmes

From the emailbox:


Law and Poetics in Early Modern England and Beyond, 2–4 July 2018, Trinity Hall, University of Cambridge

Law and Literature has come of age, evolving from the vexations of the early 1990s into a thriving field across periods, with the English Renaissance still a major locus. With the authority and intellectual security this progress gives us, however, come new responsibilities. What can we now see about this interdiscipline, and its historically specific interrelations, that we could not have had clarity about at the movement’s inception? What are the disciplinary anxieties it is time to shake off? Have new ones emerged which we need to examine? And what does work on interactions between the legal and literary imagination in other periods or cultures put in perspective for anglophone early modernists? Our 3-day conference on Law and Poetics will address the trends and urgencies in the field now, with a view to teasing out their implications for the methods and motives of knowing, and considerations of knowability. It will, in the process, raise new questions about the remit of legal, poetic or artistic knowledge.

Our speakers are: Kevin Curran (University of Lausanne), Maksymilian Del Mar (Queen Mary, University of London), Kathy H. Eden (Columbia University), Alex Feldman (Haifa University), Peter Goodrich (Benjamin N. Cardozo School of Law), Rachel E. Holmes (University of Cambridge), Lorna Hutson (Merton College, University of Oxford), Torrance Kirby (McGill University), Doyeeta Majumder (Jadavpur University), Charles McNamara (Columbia University), Bernadette Meyler (Stanford University), Subha Mukherji (University of Cambridge), George Oppitz-Trotman (University of Cambridge), Jan-Melissa Schramm (University of Cambridge), Richard K. Sherwin (New York Law School), Regina Schwartz (Northwestern University), Sebastian Sobecki (University of Groningen), Christopher N. Warren (Carnegie Mellon University), Gary Watt (University of Warwick), Carey Young (Slade School of Fine Art, University College, London), and Andrew Zurcher (Queen's College, University of Cambridge).

This conference also features Law and the Arts: Staging Law, Performing Trials, an integrated three-part public event. This event, involving actors, visual artists and legal professionals comprises:
  • a professional performance event directed by Adele Thomas and Caroline Williams, whose previous credits include: Shakespeare's Globe/Sam Wanamaker Theatre, The Oresteia (2015) and The Knight of the Burning Pestle (2014).
  • a talk and screening by visual artist Carey Young (The Slade School of Fine Art, University College, London; creator of law-based artistic works including Before the Law, Legal Fictions, and Palais du Justice)
  • a widely interdisciplinary, inter-professional Round Table on Law and the Arts featuring: Subha Mukherji (University of Cambridge), Nicola Padfield, QC (Fitzwilliam College, Cambridge), Richard K. Sherwin (New York Law School), Adele Thomas (Freelance Director), Caroline Williams (Freelance Director), and others t.b.a.
More details about the conference including a provisional schedule and speakers' abstracts can all be found here: http://www.crassh.cam.ac.uk/events/27722.

Registration is required and accessible here: https://webservices.admin.cam.ac.uk/cbk/vmwy/index.cgi. Fees are £40 (full price) or £25 (student/unwaged). Fees include lunches and refreshments. Those registering for this conference will automatically be registered for the integrated public event, Law and the Arts: Staging Law, Performing Trials on the 3rd of July. Registration will close on Monday 25th June. 

This conference is part of the research project Crossroads of Knowledge in Early Modern England: the Place of Literature, a five-year project funded by the European Research Council, based at the Faculty of English and CRASSH, University of Cambridge.  








Via @Rachel_E_Holmes

This conference looks absolutely wonderful!

June 2, 2018

Kelsey Grammar Joins Fox Legal Show "Proven Innocent"

Kelsey Grammer will co-star in the new Fox legal drama Proven Innocent. He will take on the role of D. A. Gore Bellows. The series focuses on a team of defense attorneys that takes on the causes of the wrongly convicted. The show will air beginning in the 2018/2019 season.

June 1, 2018

A New Edition of Hervé de Tocqueville's Memoirs Now Available in Electronic Format

Newly published by Les Classiques des Sciences Sociales (Chicoutimi, Quebec):


Mémoires d’Hervé Clérel,Comte de Tocqueville, 1772-1856 (Jean-Louis Benoît, Nicole Fréret et Christian Lippi, eds., 2018).

This publication is available electronically at the links below.

Word version. (also available in RTF version).

PDF version.

More about the book here.

An exciting and important new addition to the Tocquevillian bibliography.

Via Jean-Louis Benoît. Voir aussi le blog de JL Benoît.. 





Bindsell on Some Pre-1800 French and German Central Bank Charters and Regulations

Ulrich Bindseil, European Central Bank, has published Some Pre-1800 French and German Central Bank Charters and Regulations. Here is the abstract.
In some recent studies, the question of the origins of central banking has been revisited, leading to the conclusion that beyond Swedish and British central banking, also a number of earlier European continental central banks would have played a more important role. However, it has been often difficult to access the charters and regulations of these early continental central banks – in particular in English – with Dunbar (1892) being the exception. This note contributes to close this gap in a limited sense by providing some translations of few charters and regulations of pre-1800 central banks from France and Germany, namely of the Hamburger Bank of 1619, the Leipziger Bank of 1698, the Banque Générale of John Law of 1716, the Prussian Royal Bank of 1766, and the Caisse d’Escompte of 1776. These early central banks were of heterogeneous success and duration, and actually some only partially or only temporarily deserved to be called a central bank. Moreover, they did not necessarily apply precisely their charters and regulations. Still, the texts provide important insights into the objectives and design of early continental central banks. This note does provide neither an interpretation, nor discussion, nor comparative review of the charters and regulations covered. However, it provides schematic introductions to each of the early central banks.
The full text is not available from SSRN.

May 31, 2018

A Collection on Fatal Fictions: A New Book on Law and Criminal Literature from Oxford University Press @OxUniPress

The Law Library has sent me up a copy of the new publication Fatal Fictions: Crime and Investigations in Law and Literature (Alison L. LaCroix, Richard H. McAdams, and Martha C. Nussbaum, eds., Oxford University Press, 2017). It includes an introduction by Scott Turow.  Link to the Table of Contents here.


Here's a description of the book's contents, courtesy of the publisher's website.

Writers of fiction have always confronted topics of crime and punishment. This age-old fascination with crime on the part of both authors and readers is not surprising, given that criminal justice touches on so many political and psychological themes essential to literature, and comes equipped with a trial process that contains its own dramatic structure.
 This volume explores this profound and enduring literary engagement with crime, investigation, and criminal justice. The collected essays explore three themes that connect the world of law with that of fiction. First, defining and punishing crime is one of the fundamental purposes of government, along with the protection of victims by the prevention of crime. And yet criminal punishment remains one of the most abused and terrifying forms of political power. Second, crime is intensely psychological and therefore an important subject by which a writer can develop and explore character. A third connection between criminal justice and fiction involves the inherently dramatic nature of the legal system itself, particularly the trial. Moreover, the ongoing public conversation about crime and punishment suggests that the time is ripe for collaboration between law and literature in this troubled domain.
The essays in this collection span a wide array of genres, including tragic drama, science fiction, lyric poetry, autobiography, and mystery novels. The works discussed include works as old as fifth-century BCE Greek tragedy and as recent as contemporary novels, memoirs, and mystery novels. The cumulative result is arresting: there are "killer wives" and crimes against trees; a government bureaucrat who sends political adversaries to their death for treason before falling to the same fate himself; a convicted murderer who doesn't die when hanged; a psychopathogical collector whose quite sane kidnapping victim nevertheless also collects; Justice Thomas' reading and misreading of Bigger Thomas; a man who forgives his son's murderer and one who cannot forgive his wife's non-existent adultery; fictional detectives who draw on historical analysis to solve murders. These essays begin a conversation, and they illustrate the great depth and power of crime in literature.



Hill on Cheap Sentiment and "Dances With Wolves"

Claire A. Hill, University of Minnesota Law School, is publishing Cheap Sentiment in volume 81 of Law and Contemporary Problems (2018). Here is the abstract.
The Oscar-winning 1990 movie Dances With Wolves tells the story of Lieutenant John Dunbar, a Union officer who adopts a Sioux identity and name. The New York Times explained the movie’s appeal: “[A]n appealing hybrid, a western without guilt,” it enabled viewers to “enjoy a rousing old adventure and still feel they can save the planet.” A (white) person watching the movie could feel a virtuous identification with the Indians, and imagine that had he existed at the time, he too would have fought the good fight, and espoused pro-Indian laws and policies without having to do anything perilous, or really, anything at all. This article, in a symposium issue on Altruism, Community and Markets, labels this phenomenon “cheap sentiment.” Cheap sentiment is like cognitive dissonance and various forms of hypocrisy, but focuses on societal, external effects. A person gets the benefit of holding a particular ‘virtuous’ belief without incurring the cost; if the person acts, or presses for action to be taken, in furtherance of the belief, the cost may even be externalized—society bears the cost. Consider a person who objects to payment for organs as ‘commercializing what should be given freely’ when neither she nor anyone close to her is in need of organs. The same person, if she or a loved one needed organs, might (or might not) have a different view. Consider also people who object to low wages and unsafe working conditions in emerging economies, but who nevertheless buy the resultant products-- products whose (low) prices reflect how little was spent on labor and safer working conditions. Other examples discussed include differential pricing and NIMBY. The article argues that cheap sentiment adversely affects policy-making, especially insofar as it short-circuits (and sometimes even demonizes) due consideration of market-oriented solutions. My hope is that by characterizing the phenomenon of cheap sentiment as a pathology, and accommodation to it as problematic and not inevitable, my framing can serve as a needed counterweight, enabling such solutions to be given due consideration.
Download the article from SSRN at the link.

May 30, 2018

So, Is "The Americans" a Field Guide to Spotting Spies? @Variety @Danielletbd

In this article for Variety, Danielle Turchiano examines the popular culture image of the CIA on the hit FX television series The Americans (2013-2018) with the assistance of real life agents Martha Peterson and Mark Kelton. (And probably not a good idea to call them "spooks." Here's a guide to some agent lingo).

More about the show's March 28 finale in this Vox article and about the show generally in this Variety article.

A (very) selected bibliography on the spy and popular culture here.

Thomas Andrae, Television's First Feminist: "The Avengers" and Female Spectatorship, 18 Discourse 112-136 (Spring 1996).

Lisa Marie Bidlingmeyer, How the TV Image Destabilizes Identity in TV Spy Series (Thesis, MIT, 2007).

Wesley Britton, Spy Television (Praeger, 2004) (The Praeger Television Collection).

Christine Alice Corcos, "I Am Not a Number! I Am a Free Man!": Physical and Psychological Imprisonment in Science Fiction, 25 Legal Studies Forum 471 (2001) (discussing the series The Prisoner).

Luis M. Garica-Mainar, The Return of the Realist Spy Film, Cineaction 12-19 (2012).

Jon Heitland, The Man From U.N.C.L.E. Book: The Behind-the-Scenes Story of a Television Classic (St. Martin's Press, 1987).

Michael Kackman, Citizen Spy: Television, Espionage, and Cold War Culture (University of Minnesota Press, 2005) (Commerce and Mass Culture Series).

Stephen Keane, America (sic) Exceptionalism in Television Spy Dramas: Mainstreaming American With "I Spy," "Sleeper Cell," and "24"? (Thesis, Georgetown, 2007).

Tom Lisanti and Louis Paul, Film Fatales: Women in Espionage Films and Television, 1962-1973 (McFarland and Company, 2002).

J. Fred MacDonald, The Cold War As Entertainment In 'Fifties Television, 7 Journal of Popular Film and Television 3-31 (1978).

Trevor McCrisken, The Housewife, the Vigilante, and the Cigarette-Smoking Man: The CIA and Television, 1975-2001, 100 History: The Journal of the Historical Association 293-310 (April 2015).

Alan Nadel, Citizen Spy: Television, Espionage, and Cold War Culture, 60 Film Quarterly 71-72 (Summer 2007).

N. S. Stone, A Reader's Guide to the Spy and Thriller Novel (G. K. Hall, 1997).




Asses and Idiots and Dickens, Oh, My! @TheNLJ

Marcia Coyle examines the uses of Dickensian quotes in legal opinions in this piece for The National Law Journal, pointing out that Justice Alito's insertion of the phrase "the last is a ass--a idiot in the recently decided Collins v. Virginia is the latest appearance in a series that includes Justice Brennan's use in In re Sawyer, and Justice Stevens' in Califano v. Goldfano. Now Justice Ginsburg argued that case before the Court, by the way.

The phrase is a popular one with the judiciary. I'll cite just two other cases. See Judge Brorby, in dissent in Guidry v. Sheet Metal Workers Nat'l Pension Fund (10th Circuit) (he also cites Sam Ervin, "The rain it raineth on the just/And also on the unjust fella:/But chiefly on the just, because/The unjust steals the just's umbrella." And see Stone v. Essex County Newspapers, Inc (Massachusetts Supreme Judicial Court).  

The question thus arises whether the burden of adducing "clear"evidence on an issue is less than the burden of adducing "clear and convincing" evidence on an issue. If these phrases are not mere rhetoric, then each must set a precise, independent standard. If we hold, as the court apparently does, that one implication of the existence of such precise, independent standards is that juries must be instructed to find facts according to those standards, we raise the spectre of requiring trial judges in defamation cases to instruct juries as to four separate and distinct burdens of proof, falling variously on the plaintiff and defendant. That is to say that since the court today defines "clear and convincing" evidence as that which would satisfy a burden somewhere between those imposed by the ordinary preponderance of the evidence and reasonable doubt standards utilized in civil and criminal cases, and since "clear" evidence is presumably stronger than a preponderance of the evidence but not so strong as "clear and convincing" evidence, then a trial judge must instruct the jury as to the meaning of: (1) "a preponderance" of the evidence, by which most of the facts in issue must be found, (2) "beyond a reasonable doubt," so that the standard can help define other terms, (3) "clear and convincing" evidence, by which malice must be proved, and (4) "clear" evidence, by which the public character of the plaintiff's personality must be proved. A juror listening to a judge instructing him to draw such fine distinctions in his levels of belief would likely agree with Mr. Bumble: "If the law supposes that, . . . the law is a ass, a idiot."

On Charles Dickens and the law here's a selected bibliography.

Robert Coles, Charles Dickens and the Law, 59 The Virginia Quarterly 564 (Fall 1983).

Thomas Alexander Fyfe, Charles Dickens and the Law (Lawbook Exchange, 2006 (reprint 1910).

William S. Holdsworth, Charles Dickens as a Legal Historian (Lawbook Exchange, 1995) (reprint).

Anny Sadrin, Parentage and Inheritance in the Novels of Charles Dickens (Cambridge University Press, 1994)

Larry M. Wertheim, Law, Literature, and Morality in the Novels of Charles Dickens, 20 Wm. Mitchell L. Rev. 111 (1994).

Kearley on Roman Law Scholarhip and Translation in Early Twentieth-Century America

Timothy G. Kearley, University of Wyoming College of Law, has published Roman Law Scholarship and Translation in Early Twentieth-Century America. Here is the abstract.
This article provides an overview of the book Lost in Translations, which examines the lives and work of five twentieth century American Roman law translator-scholars: Wyoming Supreme Court Justice Fred H. Blume (1875-1971), who single-handedly translated Justinian’s Code and Novels; gentleman-scholar Samuel Parsons Scott (1846-1929) and classics professor Clyde Pharr (1883-1972), both of whom created massive translations of ancient Roman law; Charles Phineas Sherman (1874-1962), a lawyer-professor who translated some Roman law and wrote prolifically about it; and, finally, Charles Sumner Lobingier (1866-1956), a judge-professor who wrote about Roman law, translated a little, championed the publication of Scott’s work, and was connected to all of the others. All of these men were prominent during their lifetimes but are largely forgotten now. It is hoped that Lost in Translations will draw attention to the work these extraordinary men did and stir an interest to our classical past.
Download the article from SSRN at the link.

May 29, 2018

Wauters and de Benito on The History of Law in Europe: An Introduction: New From Edward Elgar @ElgarPublishing

Bart Wauters and Marco de Benito, both Professors of Law, IE University (Spain), have published The History of Law in Europe: An Introduction (Edward Elgar Publishing, 2018). Here from the publisher's website is a description of the book's contents.
Comprehensive and accessible, this book offers a concise synthesis of the evolution of the law in Western Europe, from ancient Rome to the beginning of the twentieth century. It situates law in the wider framework of Europe’s political, economic, social and cultural developments. Offering a readily graspable and sound structure, chapters are organized according to the civil law systems and common law systems. Each chapter is built around the evolution of the four sources of the law: legal science, legislation, courts and customary law, set chronologically against the relevant historical context. Throughout this in-depth presentation of the key determinants in European legal history, Bart Wauters and Marco de Benito allow readers to understand how the law arose and evolved in Europe as a shared language, of which its different national laws are but dialectal expressions – with the unique exception, perhaps, of English common law, whose peculiarity is likewise due to accidents of history which are themselves explored. With its elegant comparative approach, this book will appeal to European Law students and scholars looking for a concise, yet academically sound, account of the history of law in Europe.
The History of Law in Europe

May 28, 2018

Dostoyevsky's Influence on the True Crime Genre

Jennifer Wilson, a post-doctoral fellow at the University of Pennsylvania, discusses Feodor Dostoyevsky's relationship to today's extremely popular true crime genre (here, for the New York Times).  She says in part,

[T]oday’s true crime resurgence has an antecedent in the works of Fyodor Dostoyevsky, the Russian author of numerous novels about murder including, most famously, “Crime and Punishment.” Dostoyevsky was obsessed with the judiciary. He spent considerable time watching trials, debating with lawyers about the nature of innocence and guilt, visiting the accused in prison and trying to sway public opinion about certain cases. So enmeshed were Dostoyevsky and his writing in the legal consciousness of czarist Russia that defense attorneys were known to invoke Rodion Raskolnikov, the charismatic murderer-protagonist of “Crime and Punishment,” when seeking sympathy from the jury.

May 26, 2018

Zinos on Fundamental Rights in Early American Case Law: 1789-1859

Nicholas Zinos, Mitchell Hamline School of Law, is publishing Fundamental Rights in Early American Case Law: 1789-1859 in volume 7 of the British Journal of American Legal Studies (2018). Here is the abstract.
Fundamental Rights Law is a ubiquitous feature of modern American jurisprudence. Where did the term “Fundamental Rights” come from, and how was it applied in early American case law? This article outlines the genesis of fundamental rights law in early 17th century England and how this law developed and was applied over time. The English Bill of Rights of 1689 was the first attempt to codify these rights in English law. When the English legal system emigrated to America along with the early American colonists, it included the English conception of fundamental rights. The framers of the United States Constitution incorporated and expanded these rights. Early American Case law kept strictly within this tradition for the most past, and used the term “fundamental rights” usually for rights which had long been recognized in Anglo-American society. This article notes the concordance between the application of fundamental rights in early American case law and the long tradition of fundamental rights which ripened in the Anglo-American legal tradition.
Download the article from SSRN at the link.

May 25, 2018

Mirow on Spanish Law and Its Expansion

M. C. Mirow, Florida International University, College of Law, is publishing Spanish Law and Its Expansion in the Oxford Handbook of European Legal History (Pihlajamäki, Dubber & Godfrey, eds., Oxford: Oxford University Press, 2018) (Forthcoming). Here is the abstract.
This chapter provides an overview of the legal aspects of Spain's enterprise in the Americas. It addresses the uses of law in discovery, exploration and conquest; Castilian law before its expansion to new territories; the use of law to justify conquest; slavery and indigenous labour; institutions; sources of law; legal actors; and Spanish law after independence. It also presents some of the present debates surrounding the nature and construction of derecho indiano.
Download the essay from SSRN at the link.

Shaviro on Gilded Age Literature and Inequality @DanielShaviro

Daniel Shaviro, New York University School of Law, has published Gilded Age Literature and Inequality. Here is the abstract.
We are an intensely social species, and often a rivalrous one, prone to measuring ourselves in terms of others, and often directly against others. Accordingly, relative position matters to our sense of wellbeing, although excluded from standard economic models that look only at the utility derived from own consumption of commodities plus leisure. For example, people can have deep-seated psychological responses to inequality and social hierarchy, creating the potential for extreme wealth differences to invoked feelings of superiority and inferiority, or dominance and subordination, that may powerfully affect how we relate to each other. The tools that one needs to understand how and why this matters include the sociological and the qualitative. In my book-in-progress, Dangerous Grandiosity: Literary Perspectives on High-End Inequality Through the First Gilded Age, I use the particular tool of in-depth studies of particular classic works of literature (from Jane Austen’s Pride and Prejudice through Theodore Dreiser’s The Financier and The Titan) that offer suggestive insights regarding the felt experiences around high-end inequality at different times and from different perspectives. A successor volume will carry this account through the twentieth century and up to the present. On May 17, 2018, at Stanford Law School, I gave a talk on the book project in general, and a chapter on E.M. Forster’s Howards End in particular. This paper offers the approximate text of that talk.
Download the article from SSRN at the link.

May 23, 2018

Nijman on Seeking Change By Doing History

Janne Elisabeth Nijman, T. M. C. Asser Institut, Amsterdam Center for International Law, University of Amsterdam, has published Seeking Change by Doing History (2018). Here is the abstract.
In her Inaugural Lecture Janne E. Nijman explores the so-called ‘Turn to History’ in international legal scholarship. Interest in the intellectual history or ‘history of ideas’ of international law has surged around the last turn of the century. A new sub-field has thus emerged: ‘History and Theory of International Law’. Nijman contextualises this development and stages three possible approaches of why and how to study ideas and theories of the past. A central proposition is that the field of ‘History and Theory of international Law’ ultimately aims to establish a dialogue between international legal thought then and now. In this way (and by employment of e.g. the Cambridge School method) a critical distance emerges with respect to our own international legal thinking and its underlying political and moral ideas. The meaning of international law ideas changes through time – in the study thereof lies the critical potential and value for our own thinking. International law is often presented as an emancipatory, progressive project in which human dignity has come to be increasingly well-protected. With the ‘turn to history’ however the dark sides of international law, including the influence of European – also Dutch – colonial expansion on the development of international law (and vice versa), come to the fore. Studying for example the thought of Hugo de Groot uncovers this ambivalence. Nonetheless Grotius’ humanist thinking about humankind, society, and (international) law also opens up space for a perspective alternative to the ‘Hobbesian’ international order. Fundamental issues then are: who counts within the international legal order, and on which moral and political presuppositions is this order built? This Lecture makes a connection to the work of the French philosopher Paul Ricoeur and points to a possible alternative line of reasoning in which the concept of international legal personality functions as a starting point for questions about just international institutions and law. These are urgent questions at a time of globalisation, interdependency and hyperconnectivity, in which citizens are highly critical towards European and international/global institutions.
Download the lecture from SSRN at the link.

ABA Announces Silver Gavel Awards Winners For 2018 @ABAesq

The American Bar Association has announced the winners of the 2018 Silver Gavel Awards for Media and the Arts.

BOOKS

Silver GavelUnwarranted: Policing Without Permission, by Barry Friedman.
Honorable MentionIn Praise of Litigation, by Alexandra Lahav.

DOCUMENTARIES
Silver GavelAnd Then They Came for Us, by Ginzberg Productions.
Honorable MentionThey Call Us Monsters, by BMP Films.

DRAMA & LITERATURE
Silver GavelMarshall, directed and produced by Reginald Hudlin.

NEWSPAPERS
Silver Gavel: “Death-Penalty Defense Drama at Guantánamo War Court,” featured in the Miami Herald.
Honorable Mention: “Secrecy Rules,” featured in the Star Tribune of Minneapolis, Minnesota.

RADIO
Silver GavelBreakdown Season 6: A Jury of His Peers, by the Atlanta Journal-Constitution.
Honorable MentionNull and Void, by Radiolab at WNYC.

TELEVISION
Silver GavelAbacus: Small Enough to Jail, by PBS Distribution, Frontline and ITVS.

The ABA has awarded Silver Gavels every year since 1958. ABA President Hilarie Bass will present the winners and honorable mentions on July 17 at the National Press Club in Washington D.C.

Maillard on Hollywood Loving @noblemaillard

Kevin Noble Maillard, Syracuse University College of Law, is publishing Hollywood Loving in volume 86 of the Fordham Law Review (2018). Here is the abstract.
In this Essay, I highlight how nongovernmental entities establish political, moral, and sexual standards through visual media, which powerfully underscores and expresses human behavior. Through the Motion Picture Production Code (the “Hays Code”) and the Code of Practices for Television Broadcasters (the “TV Code”), Americans viewed entertainment as a pre-mediated, engineered world that existed outside of claims of censorship and propaganda. This Essay critically examines the role of film and television as persuasive and integral legal actors and it considers how these sectors operate to maintain, and sometimes challenge, racial order.
Download the Essay from SSRN at the link.

May 22, 2018

Goold on the Lost Tort of Moral Rights Invasion @harvard_law

Patrick Russell Goold, Harvard Law School, is publishing The Lost Tort of Moral Rights Invasion in the Akron Law review. Here is the abstract.
Moral rights are often portrayed as an unwelcome import into U.S. law. During the nineteenth century, European lawmakers, influenced by personality theories of authorship, began granting authors rights of attribution and integrity. However, while these rights proliferated in Europe and international copyright treaties, they were not adopted in the United States. According to a common historical narrative, U.S. courts and lawmakers resisted moral rights because they were deemed incompatible with the copyright tradition of treating expressive works as alienable property. What little moral rights U.S. law provides today is thus seen as a necessary evil, grudgingly accepted, simply to comply with international obligations. This Article presents a history of moral rights protection that challenges, to a degree, that common historical narrative. The Article tracks how American courts adjudicated attribution and integrity disputes during the twentieth century. Doing so not only reveals that the American judiciary was more sympathetic to these claims than commonly appreciated, but, even more surprisingly, came close to developing a tort of moral rights invasion. While copyright historians know that courts have long provided proxy protection for moral rights under preexisting common law causes of action (e.g., defamation, unfair competition, privacy, etc.), what is not widely known is how frequently courts were willing to protect attribution and integrity interests directly under the banner of moral rights. This Article tells the story of how courts in the mid-twentieth century, applying state law, increasingly articulated a "sui generis tort" of moral rights invasion. It then proceeds to question why the moral rights tort stagnated and was forgotten about in the late twentieth century.
Download the article from SSRN at the link. Cross-posted to Media Law Prof Blog.

May 21, 2018

Cummings on Law and Social Movements: Reimagining the Progressive Canon

Scott L. Cummings, UCLA School of Law, is publishing Law and Social Movements: Reimagining the Progressive Canon in the Wisconsin Law Review (2018). Here is the abstract.
This Article examines the “progressive legal canon” — iconic legal campaigns to advance progressive causes — and explores the implications of canon construction and critique for the study of lawyers and social movements. Looking backward, it reflects on why specific cases, like Brown v. Board of Education and Roe v. Wade, have become fundamental to progressive understandings of the role that lawyers play in social movements and how those cases have come to stand for a set of warnings about lawyer and court overreach. It then explores what might be gained from constructing a contemporary progressive legal canon and under what criteria one would select cases for inclusion. A core contribution of the Article is to synthesize examples of significant contemporary campaigns that respond to original canon concerns and complicate notions of lawyering in current movements of social import around labor, the War on Terror, LGBT rights, immigrant rights, and racial justice. The comparison of old canon to new yields an important insight. Although the form of legal mobilization is generally quite different in contemporary campaigns, with greater emphasis on constituent accountability and integrated advocacy, the outcome is often quite familiar: legal success and positive change alongside weak implementation, countermobilization, and intramovement dissent. Although the comparison is not systematic, it points toward a potentially significant conclusion: that the progressive critique of old canon lawyering is misplaced. What stymied old canon campaigns was not an overreliance on law or top-down planning, but rather the inevitable pushback by more powerful forces, causing gains to slide back or be undercut in the enforcement stage and aggravating internal movement debates over goals and strategies.
Download the article from SSRN at the link.

May 18, 2018

Wildenthal on Shapiro "On the Media": Name-Calling and Bullying Students and Doubters @tjsl

Bryan H. Wildenthal, Thomas Jefferson School of Law, is publishing Shapiro 'On the Media': Name-Calling and Bullying Students and Doubters in the Shakespeare Oxford Fellowship Newsletter (2018). Here is the abstract.
For far too long, when it comes to the Shakespeare Authorship Question (SAQ), orthodox academics, whatever their motivations, have largely avoided the simple duty that any serious scholar has: to engage forthrightly with the evidence. Instead, such scholars, when they deign to mention the SAQ at all, have focused almost entirely on trying to denigrate or psychoanalyze authorship doubters. In its most insulting and ridiculous forms, this has involved suggestions of snobbery or even mental illness. A milder version — almost more maddeningly smug and condescending — has been to retreat behind a fog of fashionable academic jargon, analyzing authorship doubt as a purely contingent product of modern times and cultural preoccupations. This was largely the approach taken by English Professor James Shapiro of Columbia University in his book about the SAQ, "Contested Will" (2010). Somehow, from the orthodox perspective, it is never about the simple factual and historical issue at the heart of the SAQ: Does the available evidence, fully considered in context, raise reasonable questions about who actually wrote these particular works of literature? Professor Shapiro spoke at length about the SAQ in a December 2016 interview with Brooke Gladstone on her public radio show "On the Media." This essay criticizes the way in which both Shapiro and Gladstone approached the SAQ, especially the troubling implications of Shapiro's comments for how Shakespeare authorship doubters, especially students, should be treated.
Download the article from SSRN at the link.

ICYMI: Christiana Gregoriou, Crime Fiction Migration (Bloomsbury, 2017) @c_gregoriou @BloomsburyBooks

ICYMI: Christiana Gregoriou, Crime Fiction Migration: Crossing Languages, Cultures and Media (Bloomsbury Publishing, 2017) (Advances in Stylistics). Here from the publisher's website is a description of the book's contents.
Crime narratives form a large and central part of the modern cultural landscape. This book explores the cognitive stylistic processing of prose and audiovisual fictional crime 'texts'. It also examines instances where such narratives find themselves, through popular demand, 'migrating' - meaning that they cross languages, media formats and/or cultures. In doing so, Crime Fiction Migration proposes a move from a monomodal to a multimodal approach to the study of crime fiction. Examining original crime fiction works alongside their translations, adaptations and remakings proves instrumental in understanding how various semiotic modes interact with one another. The book analyses works such as We Need to Talk About Kevin, The Killing trilogy and the reimaginings of plays such as Shear Madness and films such as Funny Games. Crime fiction is consistently popular and 'on the move' - witness the spate of detective series exported out of Scandinavia, or the ever popular exporting of these shows from the USA. This multimodal and semiotically-aware analysis of global crime narratives expands the discipline and is key reading for students of linguistics, criminology, literature and film.
Media of Crime Fiction Migration

ICYMI: Crime Fiction as World Literature (Bloomsbury Publishing, 2017) @jcalvo11 @BloomsburyBooks

Via @jcalvo 11:

ICYMI: Crime Fiction as World Literature (Louise Nilsson, David Damrosch, and Theo D'haen, eds., Bloomsbury Publishing 2017). Here from the publisher's website is a description of the book's contents.
While crime fiction is one of the most widespread of all literary genresSchedule
, this is the first book to treat it in its full global is the first book to treat crime fiction in its full global and plurilingual dimensions, taking the genre seriously as a participant in the international sphere of world literature. In a wide-ranging panorama of the genre, twenty critics discuss crime fiction from Bulgaria, China, Israel, Mexico, Scandinavia, Kenya, Catalonia, and Tibet, among other locales. By bringing crime fiction into the sphere of world literature, Crime Fiction as World Literature gives new insights not only into the genre itself but also into the transnational flow of literature in the globalized mediascape of contemporary popular culture.


Media of Crime Fiction as World Literature

May 15, 2018

ICYMI: Bateman on the Supreme "Courts" of the Roman Empire @cg_bateman

ICYMI:

C. G. Bateman, University of British Columbia Faculty of Law, has published The Supreme 'Courts' of the Roman Empire: Constantine’s Judicial Role for the Bishops. Here is the abstract.
Constantine, the Roman Emperor from 312-337, was a law-giver who first put the Christian Church in the place of primacy in the organization of the state that it only lost as recently as the seventeenth century; as such, he is very important to legal and social history in the Western experience. This thesis explores the degree to which the Emperor Constantine’s adoption and adaptation of the Christian religion’s bureaucratic structure affected the social and legal order of the Roman state bureaucracy in the fourth century: I do this by examining both the question of his legislation pertaining to making bishops judges and the legal nature of his relationship with the bishops which developed as they appealed their own decisions to his imperial court, specifically in both the Donatist and Arian crises. Constantine’s two pieces of legislation that most directly bear on this question come from 318 and 333: Codex Theodosianus (CTh) 1.27.1 and Sirmondian Constitution (Sirm.) 1, respectively. In the first, an edict, Constantine allows that any litigant may have their case transferred to a bishop’s court if they so choose, but he is careful to emphasize the right of the presiding judge to make this transfer official. In the second, a rescript, Constantine significantly expands the powers of the bishop’s as judges, and indicates that, among other things, just as with decision of the praetorian prefects, any decision of a bishop is not subject to appeal. In this way, the bishop’s court seemed to be positioned by Constantine as an appeal court of kinds, but in practice and according to the small amount of evidence we have on the subject, these courts, the episcopalis audentia, heard most legal matters as a working court of first instance, like that of any other local magistrate. The uniqueness of the court is evident not so much in their powers as judges, but in the fact that they began to hear matters between litigants applying Roman law to enforce their rights. The focus of my research is the seeming expansion of powers that Constantine gives to the bishops from the first to the second piece of legislation. The 333 rescript was actually a reply to the Prefect of Rome, Ablavius, who was questioning the use of the Edict of 318, and because of this, perhaps, we learn a great deal more about what Constantine wanted that earlier law to mean in 333, but whether he initially had this in mind is unknown since the first piece of legislation was very brief. I argue that he did not have this in mind, and that only after his relationship with the bishops grew in the intervening years, highlighted jointly by his blatant adoption of the Christian religion and subsequently assuming state responsibility for their protection and dispute settlement mechanism at the Council of Nicaea in 325, would such expansion of judicial authority make any reasonable sense. The emperor was in some ways compelled into a relationship with the Church because of the internecine conflicts within it which threatened the stability of his Empire, the two most important being the Donatist and Arian crises.
Download the article from SSRN at the link.

ICYMI: Finkelman on Frederick Douglass's Constitution @PaulFinkelman @GratzCollege

ICYMI: Paul Finkelman, Gratz College, has published Frederick Douglas's Constitution: From Garrisonian Abolitionist to Lincoln Republican at 81 Missouri Law Review 1 (2016). Here is the abstract.
This Article explores how the great black abolitionist Frederick Douglass was both a constitutional actor and a constitutional theorist. Unlike most constitutional actors, Douglass was not a judge, lawyer, professor, or an elected official. Nevertheless, throughout much of his life, Douglass shaped the Constitution through his actions. He was also shaped by the Constitution as he went from being a fugitive slave – and thus an “object” of the Constitution – to being a free citizen and an appointed officeholder. He became a constitutional theorist who brought his theories into action through his speeches, writings, and activities as an abolitionist, as an antislavery activist, and then as a spokesman for African Americans during the Civil War. This Article provides insights into antebellum constitutional thought and the background to the Fourteenth Amendment. This Article also explores our understanding of the Constitution and its relationship to slavery through the lens of Frederick Douglass. First, the Article looks at how the Constitution impacted Douglass and how Douglass was himself a “constitutional actor,” even though he held no public office and was not even considered a U.S. citizen under the holding in Dred Scott v. Sandford. For example, Douglass was a constitutional actor when he escaped from slavery – and thus came under the Fugitive Slave Act of 1793 and Article IV, Section 2, Clause 3 of the Constitution; when he married in New York but was still a fugitive from Maryland; when he applied for, and received, a copyright for his first autobiography, even though he was a fugitive slave at the time; and when he left the United States for Great Britain without a passport. This Article also explores Douglass’s constitutional theories and understandings and how he used the Constitution to oppose slavery. I argue, in part, that his understanding of the Constitution and his approach to constitutional interpretation changed as his life circumstances changed. Thus, when he returned from England, he was a free man because British friends had purchased his liberty. This led him to a new understanding of how to approach the Constitution and how to fight slavery under the Constitution. While essentially a work of legal history, this Article also offers ways of understanding constitutional theory and the elements of being a constitutional actor. The Article also raises issues of interstate comity and the recognition in one state of a status created in another. While not explicitly stated – because this is a work of legal history – this Article obviously has implications for modern issues surrounding marriage equality, child-custody based on interstate recognitions of status changes, the interstate recognition of gender transitions, and the legal rights of non-citizens within the United States.
Download the article here.

Oguamanam on Traditional Knowledge and the "Public Domain" Revisited @Chidi_Oguamanam @

Chidi Oguamanam, University of Ottawa, Common Law Section, has published Wandering Footloose: Traditional Knowledge and the 'Public Domain' Revisited at 2018 JWIP 1. Here is the abstract.
Ongoing interdisciplinary theoretical interests over the “ownership of culture” is a complex conversation that has pitched traditional knowledge (TK) and its holders against other knowledge systems in a manner that implicates significant power relations and plural philosophical orientations over the governance of knowledge. Nowhere is the pressure on TK more pronounced than in the new- found interest of the United States and its allies over the public domain, as evident in the work of the WIPO's special committee charged with negotiating sets of legal instruments for effective protection of TK, genetic resources, and folklore (a.ka. traditional cultural expressions). TK stakeholders are put on the defensive on the assumption that effective protection of TK would undermine the public domain. Ironically, led by the United States, countries who worked tirelessly over the decades to ratchet up intellectual property protection at the expense of the public domain have now reconstituted themselves into its later day champions when it comes to TK. However, it is not as if the Indigenous and local community custodians of TK have no approximation of the public domain in their customary laws, practices and dealings with knowledge production. There has yet to be an interest in non-Eurocentric conceptions of the public domain. Such an interest presents an opportunity to revisit the public domain imperative in order to adumbrate an inclusive and multicultural jurisprudence of the phenomenon.
Download the article from SSRN at the link.

Evil Women: An Inclusive Interdisciplinary Conference, December 1-2, 2018, Vienna, Austria @ProgConnex

Via Thom Giddens, Co-Director, Centre for Law and Culture, St. Mary's University @thomgiddens:

Evil Women: Women and Evil, an Inclusive Interdisciplinary Conference, December 1-December 2, 2018, Vienna, Austria. Submit proposals by June 8, 2018. Here's a description of the conference.



Few things capture the human imagination as much as evil, a notoriously slippery concept that enjoys universal recognition yet defies easy definition. As a term which is frequently used in relation to people who commit appalling crimes, it provides a useful means of describing unimaginable wickedness and is bandied about in popular culture (particularly by the tabloid press) as a way of explaining behaviours which defy belief. Evil is something ‘more than’ doing something morally wrong, ‘more than’ simply committing a crime, ‘more than’ an act of senseless slaughter. Defining that ‘more than’ is difficult: it is precisely this elusive quality which seems to make an act, or a person, evil.
In many cultures, women have been long suspected as the source of sundry human miseries, however basic to society they may be. While ideals of purity and dedication to family have been exalted and feminine beauty lauded, women have been viewed as embodying sinister forces of evil. Mistrusted as seductive and beguiling, women are often thought of as vengeful, manipulative and even malevolent. In grappling with our understanding of what it is to be ‘evil’, the project aims to shine a spotlight on this dark area of the human condition and explore the possible sources of the fear and resentment of women.
Women are not expected to behave in aberrant or illegal ways and we will consider the structural and systemic reasons for the heightened interest, repulsion, condemnation – and even hatred – that feminine transgression generates. Women are condemned not only for what they do but also for what they fail to do; those who harbour, lie for and couple with nefarious men are seen to have failed in their duty as gatekeepers of male morality. Where women themselves are accused of evil they are typically judged more harshly than their male counterparts, as evil acts committed by women are seen to transgress not just legal and moral boundaries but also those imposed by gender.
Against this backdrop, this conference will explore the various conjunctions between evil, women and the feminine. We invite participants to explore evil women/women and evil from the full range of disciplinary, professional and social perspectives. The aim is to generate an inclusive dialogue involving researchers, practitioners, artists, activists, legal professionals, clinicians, social workers, representatives from the voluntary sector, individuals whose lives have been impacted by feminine evil and others with an interest in the field. Topics for discussion include, but are not restricted to:
  • Representations of women and evil in popular culture, literature and history
  • Historical and changing definitions of what constitutes evil behaviour in women
  • Legal, social and cultural responses to evil women
  • Postnatal depression and postpuerperal psychosis
  • Motherhood, matricide and infanticide
  • The intersectionality of feminine evil
  • Mental illness and personality disorders
  • The sexualization of female violence – foxy boxing, video games, film and television
  • How women respond to evil
  • ‘Feminazis’
  • Violence, hysteria and the ‘wandering womb’
  • Female serial killers
  • Female psychopaths
  • Girl gangs
  • Cults
  • ‘Mean girl’ school cliques
  • Temptresses, tricksters and tarts
  • Wicked stepmothers and evil queens
  • Feminine perversions
  • Women and the abject
  • Menstruation: women and blood
  • Female myths and icons – Delilah, Lilith, Medea, Medusa, Clytemnestra, the Harpies and the Femme Fatale
  • The bitch
  • Women and power
  • Women, beauty and evil
  • Vampires, witches and sirens
  • Women as victims of evil
  • Case studies
We particularly welcome creative responses to the subject, such as poetry/prose, short film screenings/original drama, installations, and alternative presentation styles that engage the audience and foster debate.
More information here