November 30, 2015

Tomer Broude on Geographical Indications and Cultural Diversity

Tomer Broude, Hebrew University of Jerusalem, International Law Forum, is publishing From Chianti to Kimchi: Geographical Indications, Intangible Cultural Heritage, and Their Unsettled Relationship with Cultural Diversity in Geographical Indications at the Crossroads of Trade, Development, and Culture: Perspectives from Asia Pacific (Irene Clboli and Ng-Loy Wee Loon, eds., Cambridge: Cambridge University Press, 2016). Here is the abstract.
This article provides a critical perspective on the impact of two particular international legal constructs - Geographical Indications (GIs) and Intangible Cultural Heritage (ICH) - on cultural diversity, with a focus on culinary culture. An examination of the legal attributes of these mechanisms as well as their actual effects raises significant doubts as to their contribution to cultural diversity. The article builds on previous work, and parts of it have been excluded, but it includes a detailed analysis of the ICH inscription of Korean kimchi-making.
Download the essay from SSRN at the link.

Simon Chesterman On the Myth of Magna Carta

Simon Chesterman, National University of Singapore, Faculty of Law, has published The Myth of Magna Carta — Or, How a Failed Peace Treaty with French Aristocrats Was Reinvented as the Foundation of English (and American) Liberty. Here is the abstract.
Magna Carta bears an iconic status in legal history. Signed eight centuries ago by King John at Runnymede, near Windsor, it laid the foundations for constraints on arbitrary power — the basis for the rule of law, democracy, and human rights. The only problem with the historical account is that almost none of it is true. The agreement at Runnymede was not a constitutional document intended to limit power but a peace treaty to preserve the King’s rule. Despite many paintings and a commemorative £2 coin showing him holding Magna Carta and a quill, King John never signed it. Oh, and it was not called Magna Carta.
Download the article from SSRN at the link.

Oloka Onyango On the Development of Ugandan Law

Oloka Onyango, Makerere University, has published Ghosts and the Law: An Inaugural Lecture. Here is the abstract.
Ugandan law has long been haunted by ghosts. They come in many varied shapes and sizes — as the Common Law itself, as the Doctrine of Precedent and even in the manner, dress, deportment and language of our courts. All these are the ‘Ghosts of History Past, Present and Future.’ In the arena of Constitutional Law and governance the ghost appears in the form of the Political Question Doctrine (PQD), a concept most associated with the 1966 High Court decision, Uganda v. Commissioner of Prisons, ex parte Matovu. But as with all spiritual beings — such as the Roman God, Janus — there are two sides to the case. In other words, there are not just one but (at least) two ghosts of ex parte Matovu. There is the backward-looking one which supported the extra-constitutional overthrow of government in 1966 and paved the way for military dictatorship, judicial restraint and conservatism. And in the same case, there is its reverse which “jettisoned formalism” to the winds, overruled legal “technicalities,” and underlined the need for the protection of fundamental human rights. The jettisoning formalism decision eventually opened the way to a robust and growing industry of Public Interest Litigation (PIL) in Uganda. As we celebrate 20 years of the 1995 Constitution and approach the 50th anniversary of the decision in the case, it is the most appropriate time to look back and consider which of the ghosts of ex parte Matovu has been most successful in influencing the Ugandan body politic. What does the future portend for the life of these fraternal twins?
Download the lecture from SSRN at the link.

Kenneth J. Keith on Choosing How to Codify, Develop, and Reform the Law

Kenneth J. Keith, Victoria University of Wellington, Faculty of Law, has published Making Law – Who, How and What?, a speech given at the International Conference "Fifty Years of the Law Commissions: The Dynamics of Law Reform Now, Then and Next," (London, July 2015). Here is the abstract.
This paper was adapted from a speech given at the international conference “Fifty Years of the Law Commissions: The Dynamics of Law Reform Now, Then and Next”. The speech aimed to offer a wider view of the matters discussed at the conference. In the paper, the author comments on some of the choices which are made and which will continue to be made in codifying, developing and reforming the law and the broader constitutional system. Those choices involve three questions – who – the participants, how – the processes they follow, and what – the principles they apply and the product of the work, including its form. The author reflects on the bases on which those choices are to be made by drawing on examples from discrete areas of law: reform of electoral systems, equality and the prohibition of discrimination, the law of piracy and maritime crime, and the laws of interpretation.
Download the essay from SSRN at the link.

Ryan Mitchell on Legal Activism and Demands for Rights in Manchukuo, 1931-1945

Ryan Mitchell, Yale University, has published Legal Activism and Rights Consciousness in a 'Puppet State': Law in Manchukuo's Civil Resistance, 1931-1945. Here is the abstract.
Though a crucial element in Japan’s gradual early 20th century military and economic encroachment on China, the “puppet state” of Manchukuo was also paradoxically characterized by a high degree of legitimizing legal rhetoric. While its political realities generally failed to reflect these idealized foundations, in some capacities the regime actually did provide significant space for legal and other forms of civil society resistance, including by Chinese legal professionals. In order to better understand the early reception of Western, rights-based concepts of law’s social function in East Asia, then, Manchukuo is a valuable subject of study. As this Article shows, there is evidence of at least germinal development of a kind of rights-oriented legal activism that, in the Chinese context, is often viewed as first emerging only in the late-20th century Reform Era.
Download the article from SSRN at the link.

Anat Rosenberg on Liberal Thought and "Wuthering Heights"

Anat Rosenberg, Interdisciplinary Center (IDC), Herzliyah-Radzyner School of Law, has published Liberal Anguish: Wuthering Heights and the Structures of Liberal Thought at 69 Nineteenth Century Literature 1 (2014). Here is the abstract.
After decades of sustained academic critiques along established lines, liberalism has recently attracted renewed evaluations. These readings treat complexity as inherent in liberalism, and proceed to explore its structures beyond suspicious hermeneutics. This essay argues that Emily Bronte's Wuthering Heights (1847) constitutes an early and sophisticated argument about the structures of complexity in liberalism. Not only does Bronte's novel merit entry into the discussion as a conceptual contribution, but it also offers an aesthetic enactment of the anguish that liberal structures of complexity were to evoke for generations to follow, an anguish experienced already at its troubled reception.
Download the article from SSRN at the link.

Anat Rosenberg on Consumer Finance and "The Picture of Dorian Gray"

Anat Rosenberg, Interdisciplinary Center (IDC), Herzliyah-Radzyner School of Law, has published The Realism of the Balance Sheet: Value Assessments between the Debtors Act and the Picture of Dorian Gray at 2 Critical Analysis of Law 363 (2015). Here is the abstract.
This essay examines English parliamentary debates about consumers’ financial means in the context of the 1869 Debtors Act, which oversaw working-class imprisonment for debt. Debates reveal a shift in the financial epistemology favored by participants, from a view of means based on what I term social credit, to a view of means based on a balance sheet paradigm. The rise and naturalization of the balance-sheet paradigm was both interrogated and challenged by one of the era’s most controversial texts, Oscar Wilde’s The Picture of Dorian Gray. I rely on the novel to examine the deep implications of the shift for the history of consumption, and to recall the drama it involved.
Download the article from SSRN at the link.

Lenora Ledwon On the Graphic Novel and Legal Storytelling

Lenora F. Ledwon, St. Thomas University School of Law, is publishing Understanding Visual Metaphors: What Graphic Novels Can Teach Lawyers About Visual Storytelling in volume 63 of Drake Law Review (2015). Here is the abstract.
During the 2008 presidential election, a powerful image circulated in the media: an illustration of presidential candidate Barack Obama as Superman. In the illustration, titled Time for a Change, Obama is dressed in a suit and tie and stands in the iconic pose of Clark Kent changing into Superman. He is ripping open his shirt to reveal a superhero costume underneath, but instead of an S for Superman, his costume features a large O for Obama. The image references both Obama's campaign slogan, "Change," and the changing-clothes/changing-identities moment in Superman comic books when the mild-mannered Clark Kent transforms into a superhero. This single image tells a resonant story about a seemingly ordinary man who has extraordinary abilities and it taps into our psychological desire for a hero or savior to help in troubled times. It also daringly addresses the subtext of race in the election by portraying the most American of superheroes, Superman, as a black man. This artwork, created by well-known comic book and graphic novel illustrator Alex Ross, is a visual metaphor. It is no coincidence that this powerful image is rooted in the world of graphic novels because graphic novels are replete with visual metaphors, and the genre itself is characterized by visual storytelling. Lawyers can learn a great deal from the visual storytelling in such images. Specifically, this Article suggests that lawyers can improve their visual literacy and become better visual storytellers by studying graphic novels.
Download the article from SSRN at the link.

November 29, 2015

Sean Cunningham on Researching Tudor Government

Sean Cunningham, National Archives, UK,  is publishing Researching Tudor Government (Manchester University Press, 2016)(IHR Research Guides). Here is a description of the contents from the publisher's website.
Examines broadly the types of records that survive from Tudor England and shows researchers the context for their creation Reveals how documents highlight the points of contact between all subjects and the crown or its local governing processes. DS key to understanding how documents are used in archival research. Combines practical skills such as palaeography and dating with discussion of how documents relate to Tudor institutions, society. Offers a unique focus on practical research skills, exploration of document types, and explanation of the context and purpose which created the original records.

November 28, 2015

Mario Losano On Kelsen's Theory of International Law During His Geneva Exile

Mario G. Losano, Accademia delle Scienze di Torino, has published Kelsen's Theory on International Law During His Exile in Geneva at 28 Ratio Juris 470 (2015). Here is the abstract.
Kelsen's monistic theory of international law was shaped during his exile in Geneva (1933–1940), but its deep roots are to be found in his Pure Theory of Law, centred on the neo‐Kantian notion of “system.” According to this conception, a legal system can only descend from a single principle. Consequently, Kelsen constructed a monistic theory of law, i.e., a legal system incorporating all norms into a pyramidal structure culminating in a single principle: the fundamental norm. This Kelsenian pyramid must also include international law, considering that if international law were a legal system different from national law (as the dualistic theory assumes), the theoretical construction would need two fundamental norms. This dualism is as incompatible with Kelsen's monistic vision as Schmitt's theory of “Great Spaces,” creating a hierarchical system of international relations. In the Kelsenian pyramid, international law occupies a position superior to national law: The consequences of this assumption are discussed in some documents recently published in German and French.
The full text is not available from SSSRN.

November 24, 2015

Anat Rosenberg On the History of Genres in Law and Literature

Anat Rosenberg, Interdisciplinary Center (IDC) Herzliyah, Radzyner School of Law, has published The History of Genres: Reaching for Reality in Law and Literature at 39 Law & Social Inquiry 1057 (2014). Here is the abstract.
Genres are historical formations; their ability to generate knowledge depends on their interrelationships within a culture. Since law, too, can be viewed as a genre, studies of specific historical relationalities between law and other genres are necessary for law’s own history and theory. This essay discusses differentiations between Victorian law and literature, starting out from the recent publication of Ayelet Ben-Yishai’s Common Precedents: The Presentness of the Past in Victorian Law and Fiction (2013), which reveals some of that history. I examine two points: differentiations in legal and literary approaches to probabilistic knowledge, and differentiations in the author functions in law and literature. These differentiations bear multiple implications. I discuss implications for evidence-law debates about probabilistic evidence, for contract-law debates about the centrality of autonomy and self-authorship, and for understandings of legal reasoning itself — the elusive notion of “thinking like a lawyer.”
Download the article from SSRN at the link.

Recht und Literature im Zwischenraum . Law and LIterature In Between: A New Volume on Law as Literature and Literature as Law

Now available: Recht und Literatur im Zwischenraum / Law and Literature In-Between: Aktuelle inter- und transdisziplinäre Zugänge / Contemporary Inter- and Transdisciplinary Approaches (Christian Hiebaum, Susanne Knaller, and Doris Pichler, eds.; Bielefeld, Transcript Verlag, 2015).

Recht und Literatur im Zwischenraum / Law and Literature In-Between

Neil Walker On UK Constitutional Practice and the Future of Scotland

Neil Walker, University of Edinburgh School of Law, is publishing The Territorial Constitution and the Future of Scotland in The Scottish Independence Referendum: Constitutional and Political Implciations (A. McHarg, T. Mullen, A. Page, and N. Walker, eds.; OUP, 2016). Here is the abstract.
This paper considers the ways in which constitutional thought and practice continue to shape the distinctiveness of Scotland as a political community in the post-independence referendum period. The emphasis is not just on the immediate future, nor on some ideal ‘deep future’, but on the foreseeable future. What are the candidate models and plausible pathways by which the future development of the territorial constitution might be pursued? What benefits and drawbacks are associated with different approaches and what are their prospects of success? In particular, what are the limits of accommodation of Scottish self-government within the framework of the UK state, and how, if at all, might such an accommodation be maintained in the face of continuing strong support for independence? The headline notion of the 'territorial constitution' provides a useful angle of approach to these questions. The territorial constitution could signify one of three things. It might refer to the overall constitutional order as conventionally understood. Here we use the ‘territorial’ part as mere shorthand to refer to the (geographically located) state as a constitutional whole. Yet, however familiar, this usage is of limited utility in unpacking Scottish constitutional distinctiveness. In its tendency to reduce constitutional authority to the sovereign state alone, this 'Westphalian' version of the territorial constitution obstructs an adequate appreciation of Scotland's situation and prospects in a more complex regulatory environment. Instead, the article introduces two applications of the idea of a territorial constitution that are less familiar but more promising for our purposes. One usage, which has recently gained ground in mainstream constitutional debate, treats the ‘territorial’ adjective as referring to just one discrete dimension and focus of treatment within a broader constitutional order, albeit an order that may still be understood in terms of the paramount authority of the sovereign state. That dimension involves the vertical distribution of authority within the polity. This is the usage with which we are mainly concerned in the present paper. The other possible application to which we refer departs more radically from our conventional constitutional frame of reference. More than a matter of adjectival stress, instead it treats ‘territorial constitution' as a compound noun -- a distinct and separate species within the constitutional genus, and so as only one of a variety of 'constitutional' orders (including functionally defined orders such as the EU, or the 'security constitution' of the UN) applicable to any particular population. From these broader perspectives, many of the positions on the Scottish constitutional future under review in these turbulent post-referendum times, from the traditional unitary state with limited devolution of powers, through the new brand of asymmetrical Unionism and a broader framework of multilateral federalism to the option of sovereign independence, look like positions along a spectrum rather than categorically distinct choices.

Download the essay from SSRN at the link.

David Rabban on the European Origins of Roscoe Pound's Sociological Jurisprudence

David M. Rabban, University of Texas School of Law, has published Pound's Sociological Jurisprudence: European Roots and American Applications in Le "moment 1900": Critique sociale et critique sociologique du droit en Europe et aux Etats-Unis (Paris: Editions Pantheon Assas, 2015). Here is the abstract.
Roscoe Pound, widely viewed by his contemporaries and subsequent scholars as the most important American legal thinker during the first decades of the twentieth century, was by far the leading proponent of the “critique social et critique sociologique du droit aux Etats-Unis.” This article stresses the extent to which Pound relied on German and French legal scholars in developing what he called “sociological jurisprudence.” It then examines how Pound applied its central themes to propose legal reforms designed to address the social and economic problems of a society transformed by urbanization and corporate capitalism. It closes by examining Pound’s legacy.

Download the essay from SSRN at the link.

Jean d'Aspremont On "Bindingness"

Jean d'Aspremont, University of Manchester School of Law, and University of Amsterdam, is publishing Bindingness in Fundamental Concepts For International law (J' d'Aspremont and S. Singh, eds.; Elgar, 2016). Here is the abstract.
In the last decades of international legal thought, the defining role of bindingness has been growingly approached with skepticism. It is less and less construed as the exclusive genetic code that provides the instructions for the identification and autonomous development of international legal discourses as international lawyers have sought to emancipate themselves from their own genetic heritage. Since the second half of the 20th century, many international lawyers have come to feel that international legal discourses ought no longer to be structured and developed around the dichotomy between the ‘legally binding’ and the ‘legally non-binding’. Their emancipatory moves have arguably brought about refreshing dynamism and excitement in international legal thought. And yet, as this article argues, bindingness has proved resilient. After recalling the modern understandings and ontological functions of bindingness in international legal discourses (1), a few observations are formulated on the emancipatory experiments found in recent international legal thought (2). This paper ends with some remarks on the resilience of the idea of bindingness as a result of the anxiety and suspicions that have accompanied the attempts to alter the genetic code of the discipline (3).
Download the essay from SSRN at the link.

Larry Alexander On Legal Positivism and Originalist Interpretation

Larry Alexander, University of San Diego School of Law, is publishing Legal Positivism and Originalist Interpretation in the Revista Argentina de Teoria Juridica (2015). Here is the abstract.
The topic I have been assigned for this keynote address is the relationship between legal positivism and originalist theories of interpretation. Fortunately for me, there is indeed a relationship between these two things, and a strong one at that. Or so I shall contend. My plan is as follows: I shall first give an account of legal positivism. That account will be brief, no more than a sketch, but hopefully not a caricature. But it will be sufficient for demonstrating the relationship between legal positivism and originalist interpretation. After my brief portrayal of legal positivism, I shall turn my attention to originalist interpretation. I shall show why legal positivism supports originalism. And I shall conclude by discussing various objections to originalism, objections that nevertheless can be successfully parried.
Download the article from SSRN at the link.

November 23, 2015

Changes in Indigenous Marriage and Indigenous Marriage Customs Before and After the Council of Trent

Ana de Zaballa Beascoechea, Universidad del Pais Vasco, is publishing El Matrimonio Indígena Antes Y Después De Trento: Del Matrimonio Prehispánico Al Matrimonio Cristiano En La Nueva España (Indian Marriage Before and After the Council of Trent: From Pre-Hispanic Marriage to Christian Marriage in New Spain) in Tridentine Marriage in a Global Perspective (Benedetta Albani, Paolo Aranha, and Michela Catto, eds.; Frankfurt am Main: Max Planck Institute for European Legal History, 2016). Here are the abstracts (Spanish and English).
Spanish Abstract: En este artículo se analizan los cambios en el matrimonio indígena, la aceptación o rechazo de costumbres prehispánicas, antes y después del concilio de Trento. Así mismo se estudia hasta qué punto fue asimilado o rechazado el matrimonio cristiano entre los indios. Para ellos se revisa, no sólo el sacramento en sí, sino también algunos hábitos y costumbres, vínculos sociales, preferencias y prácticas relacionadas con el matrimonio cristiano. English Abstract: This article describes the changes in the Indian marriage, the acceptance or rejection of pre-Hispanic customs, before and after the Council of Trent. Also studied it was how assimilated or rejected Christian marriage among Indians. For them, not only the sacrament itself, but also some habits and customs, social links, assumptions or preferences, and practices related to Christian marriage, over pre-Hispanic habits is reviewed.
Download the essay (Spanish) at the link.

How the Law Treats Deceptive Speech

Stuart P. Green, Rutgers, The State University of New Jersey, School of Law (Newark) is publishing Lying and Law in The Oxford Hankbook of Lying (Joerg Meibauer, ed. OUP, forthcoming). Here is the abstract.
How should the law regulate lies and other forms of deception? Sometimes, it takes a hard line, subjecting those who engage in deception to serious criminal or disciplinary sanctions. Other times, it is quite tolerant, declining to impose sanctions, and even affording certain kinds of deception constitutional protection. This chapter, written for a wide-ranging, interdisciplinary collection of essays on lying, offers a general survey of a very broad topic, focusing primarily on U.S. law, but also attempting, in a selective manner, to contrast that law to the law of other jurisdictions. The discussion begins with a consideration of the various ways in which deception functions as an element in three very different sorts of criminal offenses: perjury, fraud, and rape by deception. It then looks at how the law regulates deception by the police (during interrogations) and by lawyers (to courts and to their adversaries). Finally, it consider the possibility that deception used by the media and in the course of political campaigns might lie beyond the scope of permissible legal regulation. The main point will be to show how the law’s treatment of deception varies depending on the role of the person doing the deceiving (e.g., private individuals vs. government officials) and the social context in which the deception occurs (such as a courtroom, the marketplace, a police station, or a sexual encounter). More generally, it is intended to show the quite nuanced ways in which the law seeks to deter deceptive speech that is truly harmful without “chilling” deceptive speech that is harmless or even socially beneficial.
Download the essay from SSRN at the link.

Imagining Criminal Responsibility In Nineteenth Century Scottish Law

Chloe Kennedy, University of Edinburgh School of Law, is published 'Ungovernable Feelings and Passions': Common Sense Philosophy and Mental State Defences in Nineteenth Century Scotland in volume 20 of the the Edinburgh Law Review (2016). Here is the abstract.
During the nineteenth century, changing conceptions of mental disorder had profound implications for the way that criminal responsibility was conceived. As medical writers and practitioners increasingly drew attention to the complexities of insanity, the grounds on which mentally abnormal offenders could be excused began to seem unduly restrictive. By way of a contribution to our understanding of this development, this article examines how the growing disparity unfolded in Scotland. I argue that the requirements of the insanity defence, as set out within judicial directions, reflect core facets of Scottish Common Sense philosophical thought, including Thomas Reid’s view of human agency and understanding of ‘common sense’. Building on this contention, I suggest that Scottish Common Sense philosophy played an important role in the development of Scottish mental state defences more broadly, and can provide an original interpretation of the way the doctrines of provocation and diminished responsibility changed during this era.
Download the article from SSRN at the link.

November 20, 2015

Scott Shapiro's Theory of Law

Kenneth M. Khrenberg, University of Alabama, Department of Philosophy and School of Law, is publishing Law as Plan and Artifact in volume 7 of Jurisprudence. Here is the abstract.
Scott Shapiro’s theory that law is a social plan is helpful in seeing law essentially as a tool of human creation and as such is sympathetic to understanding law in terms of the social functions it performs, a method I argue for elsewhere. I focus here on two problems with the theory as presented. The planning theory does not adequately explain the persistence of law beyond the utility of those who implement it. Generally, plans can cease to exist as soon as those engaged in them have no more use for them. Laws however, must usually be declared invalid or otherwise nullified for them to have no further effect. Shapiro’s use of self-certification to explain how law is differentiated from other forms of social planning is ad hoc and threatens circularity when he admits it to be a matter of degree. Both of these issues can be better solved by seeing law as an institutionalized abstract artifact, with a greater emphasis upon the nature of institutions doing much of the work done by the idea of planning.
Download the article from SSRN at the link.

Law As Technical and Ordinary Language

Frederick Schauer, University of Virginia School of Law, is publishing Is Law a Technical Language? in the San Diego Law Review. Here is the abstract.
This essay, the written version of the Nathanson Lecture at the University of San Diego, asks how much of legal language is ordinary language, and how much of it is technical language. The topic is important and pervasive, because it forces us to confront the question of how much, if at all, an interpreter of legal language should take account of the goals of particular laws and the goals of the legal system generally in deciding just what a law means. To the extent that legal language is ordinary language, it is possible for an interpreter at the first stage of interpretation to decide what that language simply means, and then at a subsequent stage (as proponents of the distinction between interpretation and construction maintain) to decide what a legal outcome ought to be. But if legal language is a technical language, then the interpretation-construction distinction collapses, and right from the beginning, as Lon Fuller most prominently insisted, the interpreter must consider just what laws in particular and law in general are aimed at achieving. So although it is obvious that certain terms are constituted by law – habeas corpus, assumpsit, corporation, trust, bill of attainder – the larger question is whether all of law and all of legal language should be understood in substantially the same way. The aim of this lecture is to open up the question of legal language as technical language for broader and deeper exploration, and to suggest that resolution of the ordinary language versus technical language question reaches into almost all of the domains of legal interpretation.
Download the essay from SSRN at the link.

November 19, 2015

The History of the Right of Title

David J. Brennan, Federation University Australia, has published The Root of Title to Copyright in Works at 2015 Intellectual Property Quarterly 289. Here is the abstract.
For real or chattel property that possession is at the root of title is clear as a matter of legal history. For copyright in works, the answer in legal history to the question of what is at the root of title is not so clear and that lack of clarity has rendered basic aspects of modern law contestable. This essay seeks to address a question that is not typically put: what is at the root of title to copyright in works? The contestability that swirls around this question, which in part is also a ‘history war’, can be distilled in a generalised way. One side perceives modern statutory copyright as having its provenance in common law, which places human authorship at the root of title. The competing view is premised on a public-regulation philosophy of copyright and argues that foundational common law copyright is apocryphal. An inquiry into the root of title to copyright involves the relationship between any authorial right at common law and statutory copyright. The essay commences with a temporal exposition of common law copyright, moving onto the related copyright questions of what amounted to publication and what lay at the root of statutory title – both of which emerged most acutely in the mid-19th Century. It concludes with some discussion about the extent to which the Berne Convention effectively triggered doctrinal resolution of these questions.
Download the article from SSRN at the link.

Unclean: How Environmental Language and Racist Language Are Linked

Carl Zimring, Associate Professor, the Pratt Institute, is publishing Clean and White: A History of Environmental Racism in the United States (New York University Press, 2016). Here is a description of the book's contents from the publisher's website.
When Joe Biden attempted to compliment Barack Obama by calling him “clean and articulate,” he unwittingly tapped into one of the most destructive racial stereotypes in American history. This book tells the history of the corrosive idea that whites are clean and those who are not white are dirty. From the age of Thomas Jefferson to the Memphis Public Workers strike of 1968 through the present day, ideas about race and waste have shaped where people have lived, where people have worked, and how American society’s wastes have been managed. Clean and White offers a history of environmental racism in the United States focusing on constructions of race and hygiene. In the wake of the civil war, as the nation encountered emancipation, mass immigration, and the growth of an urbanized society, Americans began to conflate the ideas of race and waste. Certain immigrant groups took on waste management labor, such as Jews and scrap metal recycling, fostering connections between the socially marginalized and refuse. Ethnic “purity” was tied to pure cleanliness, and hygiene became a central aspect of white identity. Carl A. Zimring here draws on historical evidence from statesmen, scholars, sanitarians, novelists, activists, advertisements, and the United States Census of Population to reveal changing constructions of environmental racism. The material consequences of these attitudes endured and expanded through the twentieth century, shaping waste management systems and environmental inequalities that endure into the twenty-first century. Today, the bigoted idea that non-whites are “dirty” remains deeply ingrained in the national psyche, continuing to shape social and environmental inequalities in the age of Obama.
 More here from Pacific Standard.

Amending Constitutions

Heinz Klug, University of Wisconsin Law School, has published Constitutional Amendments at 11 Annual Review of Social Science 95 (2015). Here is the abstract.
Constitutional amendment remains a source of ongoing academic and political contestation. Although in some cases the rigidity of formal amendment rules has produced debates over the impact of judicial interpretation as a substitute for amendment, in other cases amendments remain highly controversial or existing constitutional provisions remain unimplemented owing to continuing social, economic, or political pressures. This review both explores the continuing theoretical debates over the idea of constitutional amendment and uses the examples of historic land conflicts in South Africa and Zimbabwe to demonstrate the interaction between existing constitutional provisions, formal amendments, and ongoing demands over land and property rights. By providing both an overview of the theoretical debates as well as a contextual application, this review aims to demonstrate the importance of a contextually grounded, sociolegal understanding of the phenomena of constitutional amendment, stasis, and change.
The full text is not available from SSRN.

Social Rights Constitutionalism

Daniel M. Brinks, University of Texas, Austin, School of Law, Varun Gauri, World Bank Development Research Group, and Kyle Shen, University of Texas School of Law, have published Social Rights Constitutionalism: Negotiating the Tension between the Universal and the Particular at 11 Annual Review of Law and Social Science 289 (2015). Here is the abstract.
The increasing importance of social rights language in constitutional texts and in the politics of social provision and human security has triggered a voluminous academic literature. Despite its global origins, we argue, social rights language goes through a process of vernacularization, through which it transforms and is transformed by local politics. The process begins when particular rights are included in constitutional texts and continues when local groups take hold of that language to express their particular aspirations. The struggle to realize social rights is a political one, grounded in and pursued through local structures of demand. In the course of that struggle, rights acquire local particularities. At the same time, the global origins and universal language of rights can open possibilities for subordinate groups to challenge the status quo. Whether or not social rights constitutionalism in the end improves the situation for these groups or simply reinforces the status quo depends on the outcome of this vernacularization process, rather than on any a priori features of social rights language or social constitutionalism.
The full text is not available from SSRN.

Ian Ward's "Sex, Crime and Literature In Victorian England" Now Available In Paperback

New in paperback from Hart Publishing: Ian Ward, Sex, Crime and Literature in Victorian England. From the publisher's website:
The Victorians worried about many things, prominent among their worries being the ‘condition’ of England and the ‘question’ of its women. Sex, Crime and Literature in Victorian England revisits these particular anxieties, concentrating more closely upon four ‘crimes’ which generated especial concern amongst contemporaries: adultery, bigamy, infanticide and prostitution. Each engaged questions of sexuality and its regulation, legal, moral and cultural, for which reason each attracted the considerable interest not just of lawyers and parliamentarians, but also novelists and poets and perhaps most importantly those who, in ever-larger numbers, liked to pass their leisure hours reading about sex and crime. Alongside statutes such as the 1857 Matrimonial Causes Act and the 1864 Contagious Diseases Act, Sex, Crime and Literature in Victorian England contemplates those texts which shaped Victorian attitudes towards England’s ‘condition’ and the ‘question’ of its women: the novels of Dickens, Thackeray and Eliot, the works of sensationalists such as Ellen Wood and Mary Braddon, and the poetry of Gabriel and Christina Rossetti. Sex, Crime and Literature in Victorian England is a richly contextual commentary on a critical period in the evolution of modern legal and cultural attitudes to the relation of crime, sexuality and the family.
November 2015 9781509904983 160pp Paperback RSP: £15 Please click here for more information about this title and to order online

November 18, 2015

The Legal History of Arms Litigation: The First Century

David B. Kopel, University of Denver Sturm College of Law and Independent Institute, is publishing The First Century of Right to Arms Litigation in the Georgetown Journal of Law & Public Policy. Here is the abstract.
This Article examines state court cases involving the right to arms, during the first century following ratification of the Amendment in 1791. This is not the first article to survey some of those cases. This Article includes additional cases, and details the procedural postures and facts, not only the holdings. The Article closely examines how the Supreme Court integrated the nineteenth century arms cases into Heller and McDonald to shape modern Second Amendment law. Part I briefly explains two English cases which greatly influenced American legal understandings. Semayne’s Case is the foundation of “castle doctrine” — the right to home security which includes the right of armed self-defense in the home. Sir John Knight’s Case fortified the tradition of the right to bear arms, providing that the person must bear arms in a non-terrifying manner. Part II examines American antebellum cases; these are the cases to which Heller looked for guidance on the meaning of the Second Amendment. Part III looks at cases from Reconstruction and the early years of Jim Crow, through 1891. As with the antebellum cases, the large majority of post-war cases are from the Southeast, which during the nineteenth century was the region most ardent for gun control. The heart of gun control country was Tennessee and Arkansas; courts there resisted some infringements of the right to arms, but eventually gave up. Heller and McDonald did not look to the Jim Crow cases as constructive precedents on the Second Amendment.
Download the article from SSRN at the link.

A Bibliographic Review of South Asian Legal History

Mitra J. Sharafi, University of Wisconsin Law School, has published South Asian Legal History at 11 Annual Review of Law and Social Science 309 (2015). Here is the abstract.
Since the late 1990s, there has been an explosion of scholarship on South Asian legal history. This article situates the new literature within the longer tradition of postcolonial South Asian legal studies, focusing on work written by lawyers and historians. The first wave of South Asian legal studies emerged in what historians would call the long 1960s from a group of American lawyers and social scientists working on the legal profession and the experience of dispute resolution in India. The second wave, which has concentrated on the themes of gender and religion in British India, has been shaped by different influences, namely developments in the Indian women's movement and in Indian legal education during the 1980s and 1990s. The survey considers whether the new scholarship is overly focused on elites, the state, the colonial period, and English-language sources. It also identifies regional crosscutting themes that have generated research on South Asia beyond India, particularly constitutionalism, states of emergency, and the legal profession; Buddhist legal studies; gender; and rule-of-law development efforts.
The full text is not available from SSRN.

Revisiting Allen Johnson's "The Constitutionality of the Fugitive Slave Acts"

Alfred L. Brophy, University of North Carolina, Chapel Hill, School of Law, has published A Confederate History in the Yale Law Journal. Here is the abstract.
This essay revisits Yale history professor Allen Johnson’s article “The Constitutionality of the Fugitive Slave Acts,” which appeared in the Yale Law Journal in December 1921. Johnson wrote about a law that had been nullified by the Civil War and the Thirteenth Amendment nearly 70 years before. His article was part of the scholarly reconsideration of the origins of Civil War designed to reconcile North and South. Northerners, especially Northern scholars, blamed the Civil War on fanatics on both sides and in some ways exculpated Southerners for their role in the War. While scholars of memory have explored the rewriting of history in the early twentieth century, no one has noticed how it stretched outside of history books and into the pages of the distinguished Yale Law Journal. The efforts to re-write constitutional history and to defend the south’s case for one of the most reviled acts in American history reached into territory and to scholars we had not previously known. This essay thus implicates a wider stretch of legal and historical writing than we had known in the efforts to defend the proslavery south.
Download the article from SSRN at the link.

November 17, 2015

Superheroes, Comics, and Queer Theory

Ramzi Fawaz is publishing The New Mutants: Superheroes and the Radical Imagination of American Comics (New York University Press, 2016). Here is a description of the book's contents from the publisher's website.
In 1964, noted literary critic Leslie Fiedler described American youth as “new mutants,” social rebels severing their attachments to American culture to remake themselves in their own image. 1960s comic book creators, anticipating Fiedler, began to morph American superheroes from icons of nationalism and white masculinity into actual mutant outcasts, defined by their genetic difference from ordinary humanity. These powerful misfits and “freaks” soon came to embody the social and political aspirations of America’s most marginalized groups, including women, racial and sexual minorities, and the working classes. In The New Mutants, Ramzi Fawaz draws upon queer theory to tell the story of these monstrous fantasy figures and how they grapple with radical politics from Civil Rights and The New Left to Women’s and Gay Liberation Movements. Through a series of comic book case studies – including The Justice League of America, The Fantastic Four, The X-Men, and The New Mutants –alongside late 20th century fan writing, cultural criticism, and political documents, Fawaz reveals how the American superhero modeled new forms of social belonging that counterculture youth would embrace in the 1960s and after. The New Mutants provides the first full-length study to consider the relationship between comic book fantasy and radical politics in the modern United States.
Katie Kilkenny discusses the book here for Pacific Standard.

The New Mutants: Superheroes and the Radical Imagination of American Comics. (Photo: New York University Press)

Ecological Justice, Fear, and Art

Afshin Akhtar-Khavari, Griffith University Law School, has published Fear and Ecological (In)Justice in Edvard Munch's the Scream of Nature at 2 NAVEIÑ REET: Nordic Journal of Law and Social Research 130 (2015)(Special Issue on Law and Art).

We are accustomed to thinking about fear simply in terms of immediate or significant sensorial experiences – like coming face to face with a snake – but this has simply dulled our capacity to appreciate nuanced cognitive and temporal dimensions of emotional experiences of fear. In the Anthropocene epoch, the collective impact of our experiences and their impact on the ecology of planet Earth are important. However, instead of addressing the emotional reactions to being materially embedded, we often separate ourselves from this situation – both cognitively and emotionally. This article argues that our capacity to appreciate the kind of ecological justice that is needed in the Anthropocene epoch requires us to pay closer attention to our emotional experiences – particularly fear. In this context, Munch’s painting provides intrinsic symbolic support for and expression of the potential of fear to expose the reality of the impact of ecological injustice on human beings. 

Download the article from SSRN at the link.

Alternative Forms of Currency and FInancial Crises In England in Late Eighteenth and Early Nineteenth Rural England

Iain Frame, University of Kent, Canterbury, Kent Law School, has published ‘Country Rag Merchants’ and English Local Currencies in the Late Eighteenth and Early Nineteenth Century at 42 Journal of Law and Society 588 (2015). Here is the abstract.
In the late eighteenth and early nineteenth century, communities across England used country bankers’ notes almost as much as they used coins and Bank of England notes. Accounting for the relative success of these alternative currencies is challenging, however, due to the frequency of financial crisis during the period. If, during a crisis, all note holders attempted to enforce the promise to pay in gold coin against the issuing banker, the ‘law‐finance paradox’ would leave some note holders with gold coin, but would leave many more with merely ‘country rags’ or worthless pieces of paper. Building on both the credit approach to money and the relational approach to contract, this article shows note‐using communities successfully responding to financial crisis. They frequently did so by formalizing the bonds of reciprocity and trust tying the community to its note‐issuing banker – bonds sometimes made all the stronger by legal enforceability.
The full text is not available from SSRN.

Foucault, Law, and the Federal School Desegregation Cases

Gordon Hull, University of North Carolina, Charlotte, Department of Philosophy, has published Equitable Biopolitics: What Federal School Desegregation Cases Can Teach Us About Foucault, Law and Biopower. Here is the abstract.
The present paper looks at the intersection of juridical and biopower in the U.S. Supreme Court’s school desegregation cases. These cases generally deploy “equitable relief” as a relay between the juridicially-specified injury of segregation and the biopolitical mandates of integration. This strategy is evident in the line of cases running from Brown to Swann v. Mecklenburg, and has its antecedents in pre-war economic regulation. Later cases have attempted to close this relay, confining equality and rejecting claims of equitable relief. Study of the school desegregation cases thus both shows an example of the intersection of biopower and law (which has been difficult on Foucauldian grounds), as an example of the biopolitical race war that Foucault identifies in Society must be Defended.
Download the article from SSRN at the link.

November 16, 2015

Should We Recognize Idea Contributors As Joint Authors?

Timothy John McFarlin, Elon University School of Law and Washington University in Saint Louis, is publishing An Idea of Authorship: Orson Welles, The War of the Worlds Copyright, and Why We Should Recognize Idea-Contributors as Joint Authors in the Case Western Reserve Law Review. Here is the abstract.
Did Orson Welles co-author the infamous War of the Worlds broadcast? The Ninth Circuit Court of Appeals has told us no, primarily because he only contributed the idea behind the broadcast, and ideas alone can’t be copyrighted. “An Idea of Authorship” challenges this premise — that ideas, no matter how significant, cannot qualify for joint authorship in collaborative works — and argues that we as a society should, under certain circumstances, recognize idea-contributors like Welles as joint authors. We should do so to further our society’s interest in encouraging future creations, as well as out of a sense of equity and fairness to idea-contributors, acknowledging the value of ideas to creative work. Recognizing idea-contributors as joint authors would increase the contractual bargaining power of many of our society’s most creative minds and ultimately better foster the free flow of ideas essential to the constitutional goal of promoting the “Progress of Science and useful Arts.”
Download the article from SSRN at the link.

Fashion Law Arrives In the Legal Academy

Born a few years ago with (as far as I can tell) Susan Scafidi's fashion law course at Fordham, fashion law is now a "thing." Professor Scafidi now runs a Fashion Law Institute at Fordham,
and has a great fashion law blog, Counterfeit Chic.  Leonard Budow runs the Fashion Law Blog for Fox Rothschild. Lawyer Charles Colman has a blog called Law of Fashion. And now, the students of the University of Toronto Law School have launched a Fashion Law Society

As Tim Gunn would say, probably approvingly, "Mak[ing] it work!"

Various Routes Toward Describing the Cultural Studies of Law

Naomi Mezey, Georgetown University Law Center, has published Mapping a Cultural Studies of Law
in The Handbook of Law and Society 39-55 (Austin Sarat and Patricia Ewick eds.; Chicester, UK, Wiley-Blackwell, 2015). Here is the abstract.
In this chapter I briefly map the terrain of a set of scholarly approaches that could be called a cultural analysis of law. A cultural analysis or a cultural studies of law generally starts with the dual premise that law is a set of meaning-making practices that exists within and is the product of a particular culture and that the culture is a set of meaning-making practices that exists within and is the product of a particular set of laws. In this chapter I unpack and elaborate this foundational idea by exploring three routes along which a cultural analysis of law has been productively pursued: (1) narration, (2) identity, and (3) visuality. Narration is meant to embody a number of different approaches that apply a literary sensibility and critique to the language, interpretation, and rhetoric of law, legal arguments, and legal representations. It also seeks to capture the ways that law and representations of law (in novels, films, and other cultural artifacts) create certain kinds of enduring social narratives and tropes and perhaps teach normative lessons. Identity is a route paved by a robust scholarship that examines the role of law in developing, negotiating, policing, and enforcing certain kinds of individual and collective identities, including racial, ethnic, sexual, national and subnational identities that have been salient at different times. Lastly, I explore more briefly the smaller path of visuality, a recent effort to critically engage with the prominent portrayals of law and legal institutions in our pervasively visual culture as well as with the increasing use of visual arguments and iconography within law and legal practice.
Download the essay from SSRN at the link.

The United Kingdom and the Protection of Human Rights

New from Hart Publishing: The UK and European Human Rights: A Strained Relationship? (Katja S. Ziegler, Elizabeth Wicks, and Loveday Hodson, Hart Publishing, 2015). Here is a description of the contents from the publisher's website.
The UK’s engagement with the legal protection of human rights at a European level has been, at varying stages, pioneering, sceptical and antagonistic. The UK government, media and public opinion have all at times expressed concerns about the growing influence of European human rights law, particularly in the controversial contexts of prisoner voting and deportation of suspected terrorists as well as in the context of British military action abroad. British politicians and judges have also, however, played important roles in drafting, implementing and interpreting the European Convention on Human Rights. Its incorporation into domestic law in the Human Rights Act 1998 intensified the ongoing debate about the UK’s international and regional human rights commitments. Furthermore, the increasing importance of the European Union in the human rights sphere has added another layer to the relationship and highlights the complex relationship(s) between the UK government, the Westminster Parliament and judges in the UK, Strasbourg and Luxembourg. The book analyses the topical and contentious issue of the relationship between the UK and the European systems for the protection of human rights from doctrinal, contextual and comparative perspectives and explores factors that influence the relationship of the UK and European human rights.

November 13, 2015

Graphing Little Red Riding Hood

Krisztina Szűcs, a Budapest-based data visualization designer, provides an interesting graphic interpretation of five different versions of the Little Red Riding Hood fairy tale here.  You can see more clearly the differences in violence, the parties, and the outcomes, depending on who's telling the story.

November 12, 2015

A Look at Murder Ballads

Kelly Kazek reviews seven Southern folk songs based on real crimes here, for Among them: "Tom Dooley" and "Frankie and Johnny." For more about murder ballads, check out Harold Schecter's Savage Pastimes: A Cultural History of Violent Entertainment (St. Martin's Press, 2005).

Via @allenmendenhall.

Legal Time

Frederic Bloom, University of Colorado Law School and Brooklyn Law School, is publishing The Law's Clock in volume 104 of the Georgetown Law Journal (2015). Here is the abstract.
Time is everywhere in law. It shapes doctrines as disparate as ripeness and retroactivity, and it impacts litigants of every status and type — the eager plaintiff who brings her case too early, the death-row inmate who seeks his stay too late. Yet legal time is still scarcely studied, and it remains poorly understood. This Article makes new and better sense of that time. It begins with an original account of time as a tool of institutional power, tracking the relocation of that power from the first western cathedrals to the earliest Supreme Court. It then links time’s revealing past to our messy doctrinal present — first by compiling an initial doctrinal tally, then by sorting the doctrine into a novel time typology. This typology splits into three core categories — all time, some time, and broken time — and it brings analytical coherence to a concept too-long ignored. Even more, it sketches a blueprint for worthwhile reform. This Article proposes four such reforms — to Hicks v. Miranda, to mootness and desuetude, to retroactivity doctrine, and to Federal Rule of Civil Procedure 60(b) — and it rethinks the courts’ most enduring time commitments. It also builds the foundation for what is to come, opening a discussion about time as a legal technology, arguing for a more critical investigation of the law’s clock.
Download the article from SSRN at the link.

November 11, 2015

A Conference On Legal Discourse, Narrative, and Representative, March 10-11, 2016

Via the European Society for Comparative Legal History (ESCLH), news of a conference and CFP:

"On Legal Discourses, Narrratives and Representations: Trials, Court Coverage and Fiction"
The conference will take place March 10-11, 2016 in Toulouse

Proposals in French or English will be sent in Microsoft Word file format to one of the organizers below before December 1, 2015
Submissions should include the paper title, a 3000 character-limit abstract and a short biographical note. 
The scientific committee will consider the proposal and inform the colleagues of their decisions before December 15, 2015
The Event

Trials, meant to solve conflicts and restore social peace, are part of a ritual—the judicial ritual—which internationally symbolizes the act of judging whatever the national legal system has implemented in a given country. As rituals, trials have their temples, temporality, performers, and costumes: justice is therefore akin to a staging, which follows specific rules. The legal process, regulated by the law, concludes in the delivering of a sentence, which is then discussed and analyzed by a variety of experts who express their opinions, approvals or disapprovals of the decision and consequently question the doctrine. In addition to the community of jurists, other people are interested in the legal proceeding and the sentencing of criminal cases from front-page affairs to petty crimes. The trial engenders various types of discourses, narratives and representations from journalistic coverage, to novels, plays, or films. This conference will give centre stage to these “other” types of discourses, narratives and representations by turning the floor over to scholars specialized in diverse disciplines—law, literature, history, sociology, cinema, journalism, etc…. Pluridisciplinary, this event will also be pluricultural since we will focus on the writing and re-writing of judicial procedure from the coverage of trials to their fictionalization from the perspective of both the French-speaking and English-speaking worlds. This geographical opening will lead us to not only consider the discursive characteristics specific to each culture but also to compare their different modes of discourse. 
More information available here at the ESCLH blog.