May 21, 2015

A Deadly Affair

Alexis Coe on the first successful use of the insanity defense in U.S. law, by a U.S. Congressman, no less, after he stood trial for murdering his wife's lover. Read her account here of Daniel Sickles' killing of Philip Barton Key (son of Francis Scott Key) in Lapham's Quarterly. More about the case here at the website Murder by Gaslight.





The lady in question: Teresa Bagioli Sickles (1836-1867). Her mother was the daughter of librettist Lorenzo Da Ponte. She and General Sickles married when she was a teenager and he was in his early thirties.

Selected bibliography:

Brandt, Nat,  The Congressman Who Got Away With Murder (Syracuse: University of Syracuse Press, 1991).

Keneally, Thomas,  American Scoundrel: The Life of the Notorious Civil War General Dan Sickles (NY: Doubleday, 2002).

Also see:

Extended bibliography available here.




May 20, 2015

Sexual Violence, and Game of Thrones

The Washington Post's Alyssa Rosenberg discusses the shocking wedding night rape of character Sansa Stark on the May 17, 2015 episode of HBO's popular show Game of Thrones, and explains why she considers it part of the show's more encompassing narrative of violence and sexual control.

More coverage of the episode and viewer reaction here from the Christian Science Monitor.

Law and Culture Conference Call For Papers: Deadline Extended Until June 30, 2015

The Call for Papers of the Law and Culture Conference, to be held September 10-11 of this year, is open until June 30. More here.

A Symposium On Narrative & Metaphor In the Law

At Stanford Law School, January 30, 2016, a Symposium on Narrative & Metaphor in the Law.

Scheduled speakers are Linda L. Berger (UNLV, Las Vegas, Law School), Peter Brooks (Princeton), Raymond W. Gibbs (UC Santa Cruz), Michael Hanne (University of Auckland, New Zealand), Lawrence Joseph (St. John's University School of Law), Dahlia Lithwick (Slate Magazine), Bernadette Meyler (Stanford Law School), Greta Olson (University of Giessen), Roberto H. Potter (University of Central Florida), L. David Ritchie (Portland State University), Lawrence Rosen (Princeton University), Michael R. Smith (University of Wyoming College of Law), Kathryn M. Stanchi (Temple University School of Law), Simon Stern (University of Toronto Faculty of Law and Department of English), Meredith Wallis (Stanford University), Robert Weisberg (Stanford University), and Katharine Young (Boston College Law School).


Read more about the event here at its dedicated website.

Legal Realism As the Basis For a Law School Curriculum

Robert Rubinson, University of Baltimore School of Law, has published The Holmes School of Law: A Proposal to Reform Legal Education Through Realism at 35 Boston College Journal of Law & Social Justice 33 (2015).
This article proposes the formation of a new law school, the Holmes School of Law. The curriculum of the Holmes School would draw upon legal realism, particularly as articulated by Oliver Wendell Holmes. The proposed curriculum would focus on educating students about “law in fact” — how law is actually experienced. It rejects the idea that legal education should be about reading cases written by judges who not only bring their own biases and cultural understandings to their role, but who also ignore law as experienced, which, in the end, is what law is. This disconnect is especially troubling because virtually all legal education ignores law as experienced by low-income people. The article concludes with responses to anticipated objections to the proposal.
Download the article from SSRN at the link.

Holmes, Emerson, and Agonism

Allen Mendenhall, Auburn University, has published Oliver Wendell Holmes Jr. Is the Use of Calling Emerson a Pragmatist: A Brief and Belated Response to Stanley Cavell at 6 Faulkner Law Review 197 (2014). Here is the abstract.
This essay investigates the relationship between Ralph Waldo Emerson and Oliver Wendell Holmes, Jr. in the context of the common law. Holmes’s Emersonian writings, in particular his dissents, fall within the theoretical framework of agonism, which Harold Bloom refers to as a revisionary and Emersonian “program.” Agonism as a political and aesthetic theory maintains that sites of contestation can be productive rather than destructive; it suggests that confrontational relationships can be at once mutually offsetting and generative. Drawing from the Greek word for an athletic competition, agonism applied to rhetoric underscores the importance of mutuality to conflict: writers struggling against other writers understand and admire, yet seek creatively to outdo and overcome, their competition. The common-law system substantiates this theory insofar as every case answers an anterior case and creates a succession of precedents marked by strong judges and justices struggling against their predecessors. I submit that Emerson and Holmes were both pragmatic champions of descendent agonism, the former in the American literary tradition and the latter in the American common-law tradition that is distinct from its British precursor.
Download the article from SSRN at the link.

A Long Time Ago, In a Jurisprudence Far, Far Away

Cass Sunstein, Harvard Law School, is publishing How Star Wars Illuminates Constitutional Law in the Michigan Law Review. Here is the abstract.

Human beings often see coherence and planned design when neither exists. This is so in movies, literature, history, economics, and psychoanalysis – and constitutional law. Contrary to the repeated claims of George Lucas, its principal author, the Star Wars series was hardly planned in advance; it involved a great deal of improvisation and surprise, even to Lucas himself. Serendipity and happenstance, sometimes in the forms of eruptions of new thinking, play a pervasive and overlooked role in the creative imagination, certainly in single-authored works, and even more in multi-authored ones extending over time.

Serendipity imposes serious demands on the search for coherence in art, literature, history, and law. That search leads many people (including Lucas) to misdescribe the nature of their own creativity and authorship. The misdescription appears to respond to a serious human need for sense-making and pattern-finding, but it is a significant obstacle to understanding and critical reflection. Whether Jedi or Sith, many authors of constitutional law are a lot like the author of Star Wars, disguising the essential nature of their own creative processes. 

Download the article from SSRN at the link.

May 19, 2015

Breaking It Bad In a Law Review

In the New Mexico Law Review, Spring 2015:

New Mexico Law Review Current Issue

Spring 2015, Vol. 45, No. 2

Front Matter
Professional Articles

Discussion here from the Wall Street Journal.

Speaking and Silence: Boy Scouts v. Dale

Mae Kuykendall, Michigan State University College of Law, is publishing Evaluating the Sociology of First Amendment Silence in volume 42 of the Hastings Constitutional Law Quarterly (2015). Here is the abstract.
The First Amendment expressive associational freedom analysis of the 2000 mid-culture-wars case of Boy Scouts v. Dale adopts an understanding of conventions permitting, or mandating, silence and frames them as a basis for constitutional supervision of customs of silence and speech. The holding in Dale allowed the Scouts to exclude openly gay scout masters, despite a New Jersey statute barring such discrimination from a “public accommodation.” The Court explained that organizational rights to exclude an openly gay Scout, whose presence speaks where silence is preferred, would enrich discourse by enabling organizations to claim a shield of silence with which to strengthen the freedom of speech and association that flourishes in voluntary associations. The silence principle, embraced at the time by legal commentators as a win for free speech and the construction of identity, had the dichotomous effect of engendering more elite speech, as among academics, but silencing non-elite speech, that is, among young men excluded from a group that their peer group could join without identity-based barriers. The effect of the teaching by the Court was to affirm a preference for speech and identity silos, in which customs of silencing enjoyed immunity from unwanted messages and in which certain persons could be deemed inherently unwelcome embodiments of a breach of silence. This Article revisits Dale to explore the implications of Dale for civic engagement — for maintaining open civic space for contact and speech as a First Amendment value. Awarding a shield against contact with contrary views and identities disables policy-makers from supporting principles that, on empirical examination, may enrich discourse and enhance overall civic space. The failure of the Court to engage with a sociology of civic space will be examined for its import for the meeting point between social customs of control and the aspiration of the First Amendment to an engaged, expressive citizenry and to the dissemination of knowledge.
Download the article from SSRN at the link.  Cross-posted to Media Law Prof Blog.

Defining "Funny", Protecting Speech

Deadline Extended for Call for Papers for Conference on Issues of Fact, Erasmus School of Law & Erasmus School of History, Leiden University, September 24-26, 2015


The deadline for the call for papers for the Conference on Issues of Fact: The Pathologies of Fact and the Fictitious in Law and the Humanities has been extended to June 21st, 2015. I have re-posted the CFP below.



Call for Papers

Issues of Fact: the Pathologies of Fact and the Fictitious in Law and the Humanities

A three-day conference organized by Jeanne Gaakeer and Frans-Willem Korsten
To be held September 24-26,  2015
Erasmus School of Law & Erasmus School of History, Culture and Communication – Leiden University Centre for the Arts in Society

Deadline application: a proposal of max. 300 words should be sent to issuesoffact@gmail.com before June 21st, 2015.


Introduction
Truth in law is not written in stone. In all legal systems, actors submit their findings and views on what is to constitute that all-important category called “the facts”, in order to have judgment. What, then, in that process, is “fact” and what is “ficticious”, and how do we “know”? These basic questions draw the attention to both etymology and epistemology: fact as the act of “facere”, the act of giving something a recognizable form is that is in itself a also mode of fiction, a “making up”, in literary narratives as well as, historically, when it comes to postulates of science. To Giambattista Vico, for example, any scientific endeavor is equivalent to knowledge of the way in which things came into being. If we have a strong belief in, and thorough acquaintance with a factum as a man-made thing,  then on this precondition and presupposition we are able to reach a verum, cognition of a truth.
So much is obvious, stating the facts in law is advancing a claim of (referential) truthfulness: “This is what happened” .This means that jurists should bear in mind the influence of their own interpretive frameworks and unconscious choices or preferences on both fact and norm. What is more, ascertaining the facts in the sense of the selection of what may be looked upon as relevant legal facts  is always done literally ex post facto. That too provides a good reason for more research on how a number of facts “out there” come to be regarded as a string of causally connected events with consequences as far as imputation and accountability are concerned, and what factors are influential in the process of the construction and re-construction of (legal) reality. This is acute because the way in which the facts of a case are narrated determines to a large part the outcome of that case.The flipside of the meaning of fiction as noted above  is the fictitious, as the act of pretending, and even willfully deceiving in order to produce a false belief. In the context of law, it leads to injustice, given the reciprocal relation between fact and legal norm, i.e. the always combined effort in law of the perception and assessment of the facts against the background of what the legal norm (including the academic propositions made for it) means.
From the very start of law as we know it, people have tried to meddle with the (meaning of) facts in court cases, - think of the god Apollo in Aeschylus’ Oresteia -, precisely because trials were aimed first and foremost at establishing the facts of what had happened (or what might have happened, in Aristotelian terms) and what that meant. In other words, narrative plays a role in the forensic statement of fact, the narration. Enter fiction, with the danger of the fictitious.
It appears that in the contemporary situation the questions after ‘factuality’ are acute because the powers of the so-called ‘triers of fact’ are confronted with, and perhaps lag behind with, the growing powers of those who benefit from the specific construction, deliberate deceitful fabrications included,  of the facts. The problems involved have been dealt with in many forms of art: literature, theatre, film, the visual arts, participatory forms of art and so on. This conference wants to read how works of art have been dealing with the contemporary issue of factuality in the juridical domain, i.e. to place the factual-fictional distinction in a wider context than that of the original domain.

Five aspects of the matter
The first aspect of factuality concerns the rapid growth and growing complexity of scientific possibilities in establishing the truth of the matter. We would like to consider how works of art have reflected on the ways in which, on the hand, new techniques and technologies have allowed prosecutors, judges and lawyers  alike to make their case on the basis of facts that would have been irretrievable in former circumstances. Yet the flipside is  that the officials working in court often miss the basic expertise to assess the validity of the facts being handed to them. So, for every prisoner being freed after a miscarriage of justice on the basis of results procured by new dna-technologies, there are also cases of miscarriage of justice precisely because scientifically produced facts were either read in the wrong way or did not prove to be that factual. For judges, for example, who are unaccustomed to the specifics of a discipline other than their own, it can therefore be most helpful to gain insight in the way other forms of cognition function. This brings us back to the epistemological debate about the facts and the concept of cognition and knowledge, and reminds us of the distinction, problematic as legal practice shows, between the factum probandum, the fact which is the subject of proof and the factum probans, the fact from the existence of which that of the factum probandum is inferred. Put differently, is there a chain of circumstance “out there” or does (some)one carefully fit together the facts and evidence, and the other established facts and so on and so forth?

The second  aspect of factuality concerns the societal respect for the court’s prerogative to establish the facts. Many works of art have been focusing on the problem that in a growing number of cases people have been declared guilty in the context of a ‘society of the spectacle’, or ‘trial by (social) media’ that thrives on the dynamic of opposing parties that pick their favorite and already appear to know beforehand what the facts of the matter ‘really’ are. For example, in many societies people  suspected of pedophilia are no longer able to live their own lives safely. Or there may be controversial cases that have become the subject of a society’s spectacle as a result of which the judicial outcome of  the case will always lead to a disqualification of the court (or the legal system) by one of the societal parties involved. What happened to the respect for facts in the society of the spectacle?

The third aspect of factuality concerns the growing intertwinement of forms of subjectivity and agency that used to be clearly distinguishable in previous times. A worker handling a machine could be held responsible for using it rightly or wrongly, intentionally or not, because it would be a matter of fact who was doing what. Yet the issue of “who” is it that acts has become acute , for instance, in cases that robots (like cars) have become entities that can make assessments on their own, and decide ‘on their own’, or in the case of devices, as yet a fantasy but a serious one in ambient intelligence, such as ‘Digital-Me’, a personal assistant that impersonates its owner and takes his decisions independently. Here questions of personhood and legal personality come in. A comparable problem concerns the conflation of the machinic with the human, or of animals that are produced technologically.  The question is not so much what all these new forms of bodies can do. The question is: what are they, as a matter of fact? Which works of art have been doing research in this domain, and how did they do it? The paradigm shift in scientific thought that technological advancements have brought about has not yet been fully understood in and by law. New technologies are as yet ‘undecided’ since they are ‘undecidable’ from a legal point of view. As Charles Taylor already in 1991 urged us to do, it is time to reconsider the primacy of instrumental reason in modernity. So one question we have to ask is whether we dominate technology or technology dominates us, given the risk that instrumental reason becomes framed in a project of domination that seriously affects our freedom in the sense of our capacity to remake the conditions of our existence.

The  fourth aspect of factuality that we want to address concerns the inequality of arms and/or imbalance of power between the so-called ‘triers of fact’ and those who aim at fabricating or manipulating the facts. We think here of works of art that focus on different variants of so-called ‘grey zones’ in which things happen that are often impossible to reconstruct on the basis of facts. Secret services may be operative that willfully produce and use grey zones in order to have the ability to act without leaving clear traces. Another example would be all those circumstances where political, juridical, and criminal forces have become intertwined as a result of which the very idea of a system of adjudication, let alone one under the rule of law,  has become so perverted that its principal aim of establishing the facts has become non-existent. A third example would be all those cases where powerful organizations are at work in, and with circumstances in which other actors do not have the financial resources to get the proper legal expertise that would be required to test the facts of the matter, on the view that the fact section of a narrative before a court of law decides the case. A fourth example would be new forms of warfare that might be war crimes but that are hard to assess as such because of missing or basically blurred evidence.

Finally, the overarching question at the meta-level is how to think of a critical response to the current malleability of facts. One specific historical irony, here, may concern the way in which pivotal building blocks of post-structuralism and deconstruction (leading to the so-called establishment of ‘critical legal studies’) have been incorporated by forces of the opposition. The major target of criticism for post-structuralism and deconstruction was the state’s power to ‘make truth’, with the ideologies underpinning it, and in response these approaches focused on the malleability of facts. To read this as a support for principal relativism would be simply wrong. Post-structuralism and deconstruction wanted to break the power grab by ideologies or states as for their ability to define what was fact and what was not. The contemporary situation appears to be far more that the malleability of fact has become part and parcel of an ideology’s or state’s ability to remain in power. So, should we rethink the philosophies underpinning the malleability of facts entirely anew, or should we reframe the critical project of poststructuralism and deconstruction in order to revitalize them? To return to our opening statement, this question is especially acute if we consider the ways in which “facts” have their place in law, but, more importantly,  if we reconsider the question whether facts can be thought of as “objects”, or “the way things are” without considering the cognitive burdens of their disciplinary, conceptual frameworks and underlying assumptions.

Call for papers
We invite contributions from scholars who are working in the interdisciplinary domains of Literature and Law and, more broadly, Law and Humanities in order to include other (interdisciplinary) fields, such as philosophy, law and theatre studies, law and film studies, cultural legal studies, and law and technology.

We invite contributions on one or more of the following  aspects of the matter  on the basis of the following questions:

a.)    Has the establishment of facts become a matter of scientific expertise that, in some sense, lies beyond the horizon of cognition and control of those judging the case?
b.)    Does the court of law’s prerogative to establish the facts still get the respect it once had in a ‘society of the spectacle’, engendered by modern (social) media that pit parties against one another and declare people to be guilty before they have had the ability to defend themselves in a court of law?
c.)    Has the establishment of fact become a matter of juridico-political-societal concern because formerly distinguished and accepted forms of subjectivity have now become mixed or blurred due to recent developments in technology?
d.)   Have the powers of those who manipulate or fabricate facts  grown stronger so that in a growing number of cases, legal and otherwise, the very establishment of what happened has become  almost impossible?
e.)    What would be the philosophical or strategic requirements for a critical response to our contemporary perceptions of the malleability of facts?

Send your proposal of max. 300 words to issuesoffact@gmail.com before June 21st, 2015.

We intend to publish the outcome of the conference and will therefore be working with texts of 3000-5000 words (notes excluded) being sent in beforehand, if your proposal is selected. We envision an event where not so much academic presentations, but discussion or dialogue is primary, so selection will be based on the quality of the proposal to bring in new perspectives or provoke discussion.

May 18, 2015

James Wilson and Popular Sovereignty

Ian C. Bartrum, University of Nevada, Las Vegas, School of Law, is publishing James Wilson and the Moral Foundations of Popular Sovereignty in the Buffalo Law Review. Here is the abstract.
This paper explores the moral philosophy underlying the constitutional doctrine of popular sovereignty. In particular, it focuses on the Scottish sentimentalism that informed James Wilson’s understanding of that doctrine. Wilson, a transplanted Scotsman, was perhaps the nation’s preeminent lawyer in the middle 1780s. He was one of the most important delegates to the Constitutional Convention, one of the nation’s first law professors, and served as Associate Justice on the first Supreme Court. In these capacities, he developed the most sophisticated and coherent account of popular sovereignty among the founding generation. My initial effort is to enrich our understanding of Wilson’s account by revealing its roots in moral sentimentalism.

With these roots established, I am able to offer a historically contextualized normative account of popular sovereignty. I identify two justifications: (1) “free and independent” citizens provide the most reliable epistemological connection to natural law; and (2) the purpose of government is to provide citizens the necessary freedom to make autonomous moral judgments. With these justifications in place, I am able to offer two suggestions on how the structure of popular sovereignty can guide our modern constitutional constructions: (1) The federal government — not the states — should remain the primary and presumptive guardian of individual rights; and (2) we should identify sovereignty, not privacy, as the common theme underlying both textual and unenumerated rights. To that end, the judicial inquiry should focus on whether we can justify a particular intrusion into moral agency in terms of some greater benefit to moral autonomy writ large.
Download the article from SSRN at the link.

Teaching Law With Popular Culture

I'm testing the waters for a collection of essays on teaching the law school curriculum using popular culture (film, tv, graphic novels, comics, other materials). If you are interested in this project, please send expressions of interest to me at this email address.  If you're teaching law using pop culture at the undergraduate level, and interested in such a project, please feel free to email me as well.

christine.corcos at law.lsu.edu

Thanks.

Changing Minds and the Civil Rights Act of 1964

Linda C. McClain, Boston University School of Law, has published The Civil Rights Act of 1964 and 'Legislating Morality': On Conscience, Prejudice, and Whether 'Stateways' Can Change 'Folkways' as 95 Boston University Law Review 891 (2015). Here is the abstract.
Influential studies, from the 1940s and 1950s, of the problem of prejudice and how to remedy it challenged the famous assertion of nineteenth-century sociologist William Graham Sumner that “stateways don’t change folkways,” and its modern counterparts, “you cannot legislate against prejudice” or “you cannot legislate morality.” Social scientists countered that, although people might initially protest, they would welcome a federal antidiscrimination law that aligned with conscience and closed the gap between American ideals and prejudice, creating new “folkways.” Using examples from the contexts of public accommodations, education, and employment, this Article examines similar arguments made about conscience and “legislating morality” in debates about the Civil Rights Act of 1964 (the “CRA”). Proponents argued that the national conscience demanded such a law because discrimination posed a moral crisis. Proponents and opponents of the CRA differed sharply on the role of federal law in addressing prejudice and discrimination. While proponents recognized the limits of what law could achieve, they argued that the CRA would remove artificial barriers created by segregation that constrained normal or natural human interaction. Opponents defended segregation as natural, Biblical, and part of the created order and warned that the CRA would usher in a dangerous and forced racial intermingling and line-crossing, particularly in marriage. Similar to the social scientists of the late 1940s and 1950s, supporters or the CRA appealed to experience with local and state antidiscrimination law and the World War II-era Fair Employment Practice Committee. The Article concludes with reflections on the present-day implications of this earlier “legislating morality” debate for controversies over LGBT rights and the evident clash between conscience, or religious liberty, on the one hand, and antidiscrimination law and marriage equality, on the other. This Article is part of a symposium, “The Civil Rights Act of 1964 at 50: Past, Present, and Future.”
Download the article from SSRN at the link.

Unintended Consequences--Censorship and Humor

Laura E. Little, Temple University School of Law, is publishing Laughing at Censorship in the Yale Journal of Law and the Humanities. Here is the abstract.
Comedians know from experience, and research supports the proposition, that an audience will predictably laugh when observing a censored statement (whether bleeped or otherwise obscured) – at least where the audience has been primed by the context to interpret the statement as comedic. In a society that condemns censorship as the enemy of our cherished right of free expression, one might reasonably ask how this can be: why is censorship funny? This article begins by canvassing the various forms of censorship humor flourishing throughout United States culture in print, film, television, music, and internet entertainment. The article then probes mainstream condemnation of censorship – observing that individuals, law, and society all benefit from line drawing – even in the context of something as special as freedom of communication. Through the lens of interdisciplinary humor studies as well as First Amendment doctrine, the article explores the notion that the laughter emerging from comedy featuring censorship might be a “tell” that exposes this truth. Many censorship jokes simply ridicule the censor. Others, however, are more nuanced, suggesting that censorship humor might provide unique emotional rewards ranging from a spark emitted from the benign danger of a censored joke, the creative enterprise of imagining what message was – to the comfort of mapping the line between the proper and improper. Audience laughter at censorship humor often appears to derive primarily from pleasure. It might also include a measure of anxiety, fear, and anger. That complexity, however, does not mitigate the possibility that humans occasionally see and enjoy some inherent value of censorship as separating “right” from “wrong.”
Download the article from SSRN at the link.

Professor Little's comments on censorship humor remind me of one of my favorite passages from The Innocents Abroad. In it, Mark Twain discusses his visit to the Jardin Mabille and his experience of that scandalous dance, the "can-can."  "The dance had begun, and we adjourned to the temple. Within it was a drinking saloon, and all around it was a broad circular platform for the dancers. I backed up against the wall of the temple, and waited. Twenty sets formed, the music struck up, and then—I placed my hands before my face for very shame. But I looked through my fingers." Mark Twain, The Innocents Abroad (Hartford, CT: American Publishing Co., 1869), Chapter 14.



 

The New Legal Realist Approach To International Law

Gregory Shaffer, University of California, Irvine, School of Law, has published The New Legal Realist Approach to International Law at 28 Leiden Journal of International Law 189 (2015) as part of a symposium on new legal realism. Here is the abstract.
The new legal realist approach to international law builds from a jurisprudential tradition that asks how actors use and apply law in order to understand how law obtains meaning, is practiced, and changes over time. The article addresses the jurisprudential roots of the new legal realism, its core attributes, and six important components in the current transnational context. In the pragmatist tradition, the new legal realism is both empirical and problem-centered, attending to both context and legal normativity. What is new is the rise of transnational activity that gives rise to an enlarged scope of transnational problem solving through international law in radically new ways across areas of law, and the growth of empirical study of these phenomena. The article concludes by addressing the potential risks of the new legal realist approach in terms of scientism and relativism, and it responds to them.
Download the article from SSRN at the link.

May 14, 2015

The French Social Justice Movement Over Time and Current Advocacy For Islam

Riaz Tejani, University of Illinois, Springfield, Department of Legal Studies, is publishing 'A Logic of Camps': French Antiracism as Competitive Nationalism in volume 38 of the Political and Legal Anthropology Review (2015). Here is the abstract.

As the Charlie Hebdo and Copenhagen attacks starkly remind us, European multicultural policy continues to falter over the growth of public Islam. But long before these events, tension between competing visions of citizenship and nationhood had weakened the very civil society organizations that could shape such policy. In France, where non-governmental organizations had labored against discrimination for over a century, this conflict led to profound disaffection within the nation’s powerful antiracism movement. Drawing from more than two years of ethnographic fieldwork among French antiracist NGOs, this article examines that disaffection among activists whose work in the name of cultural outsiders simultaneously served to rememorialize historic national traumas from the Dreyfus Affair to Algeria. Revealing a new despondency over sociolegal advocacy for Islam, some decried "infiltration" of communitarian voices into their erstwhile republican movement while others, under increasing pressure to adopt an emergent pluralist vision, equated this new model with foreignness itself. The resulting "crisis of antiracism" saw competitive reassertions of nationhood in the face of countervailing state discourses of European postnationalism. If writings on French multiculturalism to date have focused on Islamic piety and urban youth deviance, this article examines the significant impact these have had on France’s preeminent social justice movement. 

Download the text of the Article from SSRN at the link.

May 13, 2015

The Windmills In His Mind: Moot Court Proceeding Examines Don Quixote's Competency

Associate Justice of the Supreme Court Ruth Bader Ginsburg presided (as Chief Justice) over the Supreme Court of La Mancha in a moot court proceeding at the Shakespeare Theatre Company on May 11. Other justices and judges involved included Associate Justice Stephen Breyer, Chief Judge Merrick Garland and Judge Patricia Millett of the U.S. Court of Appeals for the D.C. Circuit and Judge Amy Berman Jackson of the U.S. District Court of Appeals. Thomas Goldstein (Goldstein Russell) represented Don Quixote; Carter Phillips (Sidley Austin) argued for the interests of the Family Court of La Mancha and Don Quixote's niece Antonia, who wished to be named his guardian.

The parties advocated for and against the competency of one Don Quixote de la Mancha. The issue: is he so out of touch with reality that he needs a court-appointed guardian? Justice Ginsburg ultimately decided "no," because dreamers like him allow civilization to progress. Prior moot courts put on by the Shakespeare Theatre Company's Bard Association have included events inspired by Shakespeare's Henry V and Measure for Measure, and Oscar Wilde's An Ideal Husband. More here.

More about May 11th's event here from Tony Mauro at the Blog of Legal Times.

Celebrating Shakespeare

A little light entertainment from Dominique Goy-Blanquet for a Shakespearean anniversary here.  More at the website here: ShakespeareAnniversary.org.

Business Models, Law, and the Classical Roman Market

Benito Arruñada, Universitat Pompeu Fabra, has published The Institutions of Roman Markets as Universitat Pompeu Fabra, Economics and Business Working Paper Series 1471. Here is the abstract.
I analyze the basis of the market economy in classical Rome, from the perspective of personal-versus-impersonal exchange and focusing on the role of the state in providing market-enabling institutions. I start by reviewing the central conflict in all exchanges between those holding and those acquiring property rights, and how solving it requires reducing information asymmetry without endangering the security of property. Relying on a model of the social choice of institutions, I identify the demand and supply factors driving the institutional choices made by the Romans, and examine the economic circumstances that influenced these factors in the classical period of Roman law. Comparing the predictions of the model with the main solutions used by Roman law in the areas of property, business exchange and the enforcement of personal obligations allows me to propose alternative interpretations for some salient institutions that have been subject to controversy in the literature, and to conclude with an overall positive assessment of the market-enabling role of the Roman state.
Download the paper from SSRN at the link.

Moral Responsibility and Criminal Sanctions

Ken Levy, Louisiana State University Law Center, is publishing Does Situationism Excuse? The Implications of Situationism for Moral Responsibility and Criminal Responsibility in volume 68 of the Arkansas Law Review (2015). Here is the abstract.
In this Article, I will argue that a person may be deserving of criminal punishment even in certain situations where she is not necessarily morally responsible for her criminal act. What these situations share in common are two things: (a) the psychological factors that motivate the individual’s behavior are environmentally determined and (b) her crime is serious, making her less eligible for sympathy and therefore less likely to be acquitted.

To get to this conclusion, I will proceed in four steps. In Part II, I will offer the first two of these steps. First, I will argue that our foundational assumption that moral responsibility is necessary for just blame and punishment is not self-evident and is actually rather difficult to explain and justify. Second, I will offer an explanation and justification that appeals to our moral psychology. Specifically, I will argue that we subscribe to this assumption (that moral responsibility is necessary for just blame and punishment) ultimately because we sympathize with agents who lack responsibility for their actions.

Third, in Part IV, I aim to show that even if moral responsibility is not conceptually — only “emotionally” — necessary for just blame and punishment, the traditionally recognized criminal excuses (automatism, duress, entrapment, hypnosis, infancy, insanity, involuntary intoxication, mistake of fact, and mistake of law) are not at risk because, contrary to popular wisdom, they do not really rely on this assumption to begin with. Instead, they stand less for the metaphysical proposition that we should refrain from blaming and punishing the non-responsible and more for the normative/ethical proposition that we should refrain from blaming and punishing those whom we cannot reasonably expect to have acted better. I will further argue that the latter proposition does not necessarily reduce to the former.

Fourth, once I have defended my account of the excuses, I will question in Parts V and VI the increasingly popular notion that we should add certain conditions or circumstances to the list of recognized excuses. I will focus on one in particular — the psychological theory of “situationism” — and will argue that, despite its initial plausibility, it should be kept off the list. While situationism arguably does negate moral responsibility, it does not negate criminal responsibility.

Of course, this is a controversial point. Criminal responsibility is almost universally thought to require moral responsibility. But in a previous article, "Dangerous Psychopaths: Criminally Responsible But Not Morally Responsible, Subject to Criminal Punishment And to Preventive Detention," 48 San Diego L. Rev. 1299 (2011), I used personality psychology to drive a wedge between the two. In this article, I will use the opposite end of the psychological spectrum — social psychology — to drive the same important wedge.
Download the article from SSRN at the link.

ABA Announces Winners of 2015 Silver Gavel Awards

The American Bar Association has announced the winners of the 2015 Silver Gavel Awards. Here's the text of its press release.

WASHINGTON, May 13, 2015 — The American Bar Association announced today its selections for the 2015 Silver Gavel Awards for Media and the Arts, which recognize outstanding work in media and the arts that fosters the American public’s understanding of law and the legal system. This is the ABA’s highest honor in recognition of this purpose.
The winners are:
  • “Burning Down the House: The End of Juvenile Prison,” a book that shines a harsh light on America’s juvenile prisons and argues that state-run detention centers should be abolished
  • “The Case Against 8,” a behind-the-scenes documentary that looks at the historic federal court case to overturn Prop 8, California’s ban on same-sex marriage
  • “Till Death Do Us Part,” an investigative newspaper series that examines South Carolina’s “silent epidemic” of domestic violence and proposes concrete solutions to reduce the state’s extraordinarily high rate of women killed by men
  • “Serial: Season One,” a radio podcast that probes a 2000 murder trial in Baltimore to tell a larger story of the realities of criminal prosecution
The awards ceremony will take place July 21 at the National Press Club in Washington, D.C. ABA President William Hubbard will present the Silver Gavel Awards to honorees.
The ABA will present four Silver Gavels and four honorable mentions from 168 entries received in all eligible categories: books, commentary, documentaries, drama and literature, magazines, newspapers, radio, television and other media.
Selection criteria include: how the entry addresses the Gavel Awards’ purpose and objectives; educational value of legal information; impact on, or outreach to, the public; thoroughness and accuracy in presentation of issues; creativity and originality in approach to subject matter and effectiveness of presentation; and demonstrated technical skill in the entry’s production.

“The winners of 2015 Gavel Awards for Media and the Arts are the result of a rigorous and selective review by the American Bar Association,” said Cory M. Amron, chair of the ABA Standing Committee on Gavel Awards. “We congratulate all of the awardees for their outstanding efforts to foster the American public’s understanding of law and legal institutions.”
The association has presented these awards annually since 1958. The 18-member ABA Standing Committee on Gavel Awards makes final award decisions. 

The link to the ABA webpage also lists winners of Silver Gavel honorable mentions.

U. S. Privacy Law After One Hundred Twenty Years

Robert Sprague, University of Wyoming, College of Business, Kevin Grauberger, University of Wyoming, and Nicole Barberis, Bloomberg LP, have published One Hundred Twenty Years of U.S. Privacy Law Scholarship: A Latent Semantic Analysis. Here is the abstract.
This paper reports results from a research project aimed at identifying fundamental privacy law principles derived from the writings of legal scholars and commentators using probabilistic topic modeling, which is comprised of a suite of algorithms that attempt to discover hidden thematic structures in large archives of documents. Topic modeling algorithms are statistical methods that analyze the words of texts to discover topics (themes) contained within, how those topics are connected to each other, and how they change over time. A latent Dirichlet allocation process, which identifies sets of terms that more tightly co-occur, is incorporated into the topic modeling analysis to identify words most closely associated with each identified topic. The latent Dirichlet allocation therefore provides insight into the context in which each identified topic occurs. Our analysis reveals that privacy law in the United States comports most closely with the Georgia Supreme Court’s 1905 description of privacy from the seminal case Pavesich v. New England Life Insurance Company: “the right of a person to be secure from invasion by the [government or] public into matters of a private nature.”
Download the paper from SSRN at the link.

May 12, 2015

A Lawyer In Natchez

Bill Sheehan of the Washington Post reviews Greg Iles' new novel The Bone Tree here. The book, the second in a trilogy about lawyer/novelist Penn Cage, explores violent events linked to Mississippi's  past.

Mr. Iles' novel Natchez Burning, the first novel in the trilogy, is slated for TV; more here from Deadline.com.

May 11, 2015

Law, Language, and Culture In the European Union

New from Ashgate: Language and Culture in EU Law: Multidisciplinary Perspectives (Susan Sarcevic, ed.; 2015) (Law, Language, and Communication). Here is a description of the contents from the publisher's website.


Written by distinguished legal and linguistic scholars and practitioners from the EU institutions, the contributions in this volume provide multidisciplinary perspectives on the vital role of language and culture as key forces shaping the dynamics of EU law. The broad spectrum of topics sheds light on major Europeanization processes at work: the gradual creation of a neutralized EU legal language with uniform concepts, for example, in the DCFR and CESL, and the emergence of a European legal culture. The main focus is on EU multilingual lawmaking, with special emphasis on problems of legal translation and term formation in the multilingual and multicultural European context, including comparative law aspects and an analysis of the advantages and disadvantages of translating from a lingua franca. Of equal importance are issues relating to the multilingual interpretation of EU legislation and case law by the national courts and interpretative techniques of the CJEU, as well as the viability of the autonomy of EU legal concepts and the need for the professionalization of court interpreters Union-wide in response to Directive 2010/64/EU. Offering a good mix of theory and practice, this book is intended for scholars, practitioners and students with a special interest in the legal-linguistic aspects of EU law and their impact on old and new Member States and candidate countries as well.










Language and Culture in EU Law

Have Some Comics With Your Copyright Law

Need an amusing and interesting way to explain copyright law? Or wish you understood it better yourself? Check out Bound By Law? (Tales From the Public Domain) by Keith Aoki, James Boyle, and Jennifer Jenkins. It's also available in a flash animation here and in translations into French, Portuguese and Italian.

The Treatment of the Law of Evidence in Legal and Political Contexts

Ronald J. Allen, Northwestern University Law School, is publishing A Note to My Philosophical Friends About Expertise and Legal Systems in Humana-Mente: Journal of Philosophical Studies (forthcoming). Here is the abstract.
This brief essay explores how understanding the treatment of expert evidence requires engaging with its legal and political contexts, and not just focusing on its epistemological aspects. Although the law of evidence and thus its treatment of experts is significantly informed by epistemological considerations, it is also informed by concerns over the organization of trials, larger issues of intelligent governance, social concerns, and enforcement issues. These five aspects to the law of evidence give rise to principles to guide the explicit structuring of the law of evidence that are identified here as well. This complexity helps to explain why the central issue of expert testimony is not the epistemological one of knowledge and belief but instead the conflict between educational and deferential modes of trial.
Download the essay from SSRN at the link.

"The Wire" In Law School Courses

Andrea Dennis, University of Georgia Law School, has published Teaching The Wire: Crime, Evidence and Kids at 64 Journal of Legal Education 111 (2014). Here is the abstract.
I have a confession: I have only watched Season 1 of The Wire, and it has been many years since I did that. Thus, both my knowledge and pedagogical use of the show are limited. What explanation can I offer for my failings? I am a Maryland native with family who resides in Baltimore City, or Charm City as it is affectionately called. I worked for several years as an assistant federal public defender in Baltimore City. Over time, I have seen the city evolve, and I have seen it chew up and spit out many good people and some not so good people. So, in the past, I told students who asked whether I had ever seen The Wire: “Why should I watch a fictional version of what I (painfully) experienced as reality?” Although it took many years after the series ended, I did eventually break down and watch Season 1. In doing so, I discovered that the show is an ideal source for exploration of issues arising in three courses I teach. To date, I have used portions of Season 1 as platforms for assessing students’ comprehension of the materials in these courses.
Download the article from SSRN at the link.

May 10, 2015

Lannisters, Starks, and Fantasy Football

Joe Berkowitz of Fast Company highlights this meshing of the worlds of Game of Thrones and the NFL. Examine Dave Rappaccio's Westeros Fantasy Football League more closely here at Kissing Suzy Kolber. More GoT fun here from FC writer Dan Solomon, who discusses how Tim Proby gave all 32 of the NFL teams Westeros themes.

If you need even for your Game of Thrones fix, check out how the Getty is linking the show with medieval art here, (no football, though).

May 8, 2015

Of Hedgehogs, Foxes, and Theories

Ronen Perry, University of Haifa Faculty of Law; University of Oxford Faculty of Law, is publishing Pluralistic Legal Theories: In Search of a Common Denominator in volume 90 of the Tulane Law Review (2015). Here is the abstract.

This Essay embarks on a meta-theoretical project to provide a unifying philosophical framework for pluralistic legal theories. Put differently, it seeks to identify a structural common denominator for all pluralistic theories of law, with a particular emphasis on private law (torts and contracts). The Essay first rejects the notion of complementarity coined by Nobel Prize laureate Niels Bohr, and applied to legal theory by Izhak Englard. It then advocates the allegedly Thomist aphorism hominem unius libri timeo (“I fear the man of a single book”), and connects it to Isaiah Berlin’s renowned distinction between the hedgehog and the fox.
Download the essay from SSRN at the link.

May 7, 2015

Religious Courts and Women's Equality

Marie Ashe, Suffolk University Law School, and Anissa Helie, John Jay College of Criminal Justice, CUNY, have published Realities of Religio-Legalism: Religious Courts and Women's Rights in Canada, the United Kingdom, and the United States at 20 U. Cal.-Davis J. International Law & Policy 139 (2014). Here is the abstract.
Religio-legalism – the enforcement of religious law by specifically-religious courts that are tolerated or endorsed by civil government – has long operated against women’s interests in liberty and equality. In the 21st century, religious tribunals – Protestant, Catholic, Jewish, and Muslim – operate throughout the world. Almost all are male-dominated, patriarchal, and sex-discriminatory. Harms to women produced by Muslim or sharia courts have come into focus in recent years, but present realities of religio-legalism operating through Christian and Jewish – as well as Muslim – religious courts in Western nations have been under-examined. This essay documents controversies concerning sharia-courts that have arisen in Canada and in the United Kingdom during the past decade and also looks at concurrent developments relating to sharia and to other-than-Muslim religious courts in the US.

Religious courts – Christian, Jewish, and Muslim – have in common that they assert original or exclusive jurisdiction over certain matters. In calls for “official recognition” of sharia courts, proponents have advanced a religious-equality argument, claiming that denial of that status to Muslim tribunals would violate the governmental obligation to avoid discrimination among religions. At the same time, sharia-related controversy has raised sharply the question about the implications for women’s liberty and equality rights that are produced by governmental accommodations of the religious-equality and religious-liberty interests asserted by all religious entities enjoying governmental recognition.

While recognizing the legitimacy and weight of the complaint against inequitable treatment of religions, we argue here that whenever governmental action to “resolve” sharia-related conflict adopts the avoidance of discrimination among religions as its single goal and therefore expands its “official recognition” to include additional religious courts, it will have the effect of enlarging religions’ power and at the same time exacerbating harms to women.

Referencing feminist writings that have documented the global spread of religious fundamentalisms from the 1990s to the present and that have exposed capitulations of liberalism to those fundamentalisms, we call for reconceptualization of the law-religion-women nexus. We urge recognition that governmental goals of equitable treatment of religions and protection of women’s rights will together be served not by expansions of governmental engagements with religion, but by retrenchment from religio-legalism. Thus, we urge, in policy and in law, clear prioritization of the protection of women’s rights and concurrent retreat from the formal recognition of all religious courts and of civil-law enforcement of the orders of any such bodies.

Download the article from SSRN at the link.

May 6, 2015

Fall 2015 Legal Pilots, You're Up!

The Hollywood Reporter notes that the fall 2015 season might bring us new legal series. Nearly every network has some kind of legal show. ABC is looking at a pilot called The Adversaries, CBS at Doubt (a lawyer gets involved with her client--have we seen this plot before?), Fox at a comedy called The Grinder (Rob Lowe as a TV lawyer who thinks he's a real lawyer: I suppose this show is the playing out of the line "I'm not a real...but I've played one on TV"), NBC at Game of Silence (David Lyons as an ambitious young lawyer with secrets).  More here.