March 1, 2015

A Conference On Law and Revolution In Ireland, November 2014

Playlist of podcasts from Law and Revolution in Ireland: "law and lawyers before, during, and after the Cromwellian Interregnum. This conference took place in the House of Lords Dublin on the 27th and 28th of November 2014. It was organised by Dr Coleman Dennehy in association with the Irish Legal History Society, and generously supported by the society, the Bank of Ireland, UCD Humanities Institute, University College London Department of History, and UCD School of History and Archives. The event was recorded for podcasting by Real Smart Media."

Conference On Legal Argumentation, June 2015

An International Conference on Legal Argumentation and the Rule of Law is set for June 25 and 26, 2015 at the Erasmus School of Law, Rotterdam, the Netherlands. Keynote speakers are Jacco Bomhoff, London School of Economics, Damiano Canale and Giovanni Tuzet, University of Bocconi, Milan, and Matthias Klatt, University of Hamburg.

More information at the website here.

February 27, 2015

Lawyers, Power, and Identity in "Philadelphia"

Richard M. Cornes, University of Essex School of Law, has published Philadelphia – Self, Power and Hollywood's Safe Money Agenda. Here is the abstract.

Philadelphia, a film about a man fired because of fear of AIDS (and behind that, fear of homosexuality) was released in 1993. It was one of the first Hollywood movies to address HIV and homophobia. Hollywood congratulated itself on its bravery, awarding Tom Hanks and Bruce Springsteen Oscars (for best lead actor and best movie song respectively).

Twenty-two years later, homophobia is alive and well. In England, in the first week of January 2015, two straight BBC male radio presenters went for a walk on the streets of Luton hand in hand, recording the adverse reactions they encountered on film (available online. I mention this to guard against the rosy nostalgia which might otherwise arise from the passage of time between 1993 and today. Certainly we now have marriage equality in a number of countries, including England, Wales and Scotland, and 36 US states, but two men holding hands on a British street still attracts sniggers, stares, and insults. The impulse to discriminate on the basis of perceived sexual orientation that Andrew Becket – the film’s lead – challenges in 1993 is still very much with us.

This essay considers the film from the perspective of a module on management and organization studies, drawing on Bell’s (2008) work on understanding management and organizations through film. I am not the first to study Philadelphia from this perspective: see Holliday, 1998; and from the perspective of a legal scholar, Asimov, 2001. I bring three strands of analysis. The first is concerned with motivation and the self – what does it mean to be a “lawyer”? The second is concerned with issues of power relating to sexuality, in the legal work place, and Hollywood. The third looks directly at Hollywood and its treatment of inter alios, gay men.

Download the paper from SSRN at the link.

New Deal Lawyers and Political Agendas

Daniel R. Ernst, Georgetown University Law Center, has published Of Sheepdogs and Ventriloquists: Government Lawyers in Two New Deal Agencies. Here is the abstract.

From the neo-Weberian literature on state-building and the political sociology of the legal profession, one might expect government lawyers to be sheepdogs, nipping at the heels of straying administrators, supplying their agencies with the bureaucratic autonomy so often missing in American government. In this working paper, prepared for "Opportunities for Law's Intellectual History," a conference sponsored by Baldy Center for Law and Social Policy at the State University of New York at Buffalo, October 10-11, 2014, I report my preliminary findings for two agencies created during the Hundred Days of Franklin D. Roosevelt's presidency, the Agricultural Adjustment Administration and the National Recovery Administration. I suggest that the neo-Weberian model tends to minimize the lawyers' agency as political actors. In particular, the New Deal lawyers' projection of their own preferences upon general statutory delegations of legislative power, which they then interpreted authoritatively, could make them less the faithful agents of their master’s voice than ventriloquists in pursuit of their own political agenda.

Download the paper from SSRN at the link.

February 26, 2015

Real Life and Breaking Bad

From CBS News, this story in today's news about an investigation carried out at Del's Maraschino Cherries in New York City, where authorities thought the company might be dumping hazardous wastes into the sewers. Instead, they discovered marijuana. The company's owner excused himself, and then tragically committed suicide. CBS News compares this situation to the storyline in the cult tv series Breaking Bad It's not the first time that the media has made this comparison. In August, 2011, law enforcement moved to arrest a professor of kinesiology at Cal State, San Bernadino, for dealing meth, among other things.  Said one neighbor, " He seemed like a nice guy....His lawn is impeccable."  Professor Kinzey has pled not guilty to the charges.  Here's more about the case against Professor Stephen Kinzey; news about his preliminary hearing, long delayed, here. Updated information from the San Bernadino County DA's office here.


Scriptwriters often rely on headlines and events for stories. Like novelists, they find drama and truth in real life and use fiction to comment on it. It's surprising, and saddening, though, to see how closely art and life can resemble each other, and to wonder what the dividing line is, or whether there is a line at all.

February 25, 2015

Bruce Hay Wins Second Annual Penny Pether Award For Law and Language Scholarship




Amy Dillard, University of Baltimore School of Law, has announced:


On behalf of the award committee, it is my great pleasure to announce that Bruce Hay of Harvard Law School is the winner of the second annual Penny Pether Award for Law and Language Scholarship for his article The Damned Dolls, 26 Law and Literature 321 (2014).

Dozens of terrific articles and essays were nominated for the award.  In partial recognition of the strength and tremendous diversity of the works we were so lucky to read, we are also pleased to give honorable mention to Linda Edwards, Where Do the Prophets Stand?: Hamdi, Myth, and the Masters Tools, 13 U. Conn. Pub. Int. L. J. 43 (2013). 

The committee thanks to everyone who nominated authors for the award and to the authors themselves for their great work.  We are proud to review this work in an annual way to honor the legacy of Professor Penny Pether.  Please watch for our announcement for nominations in the fall.

Amy Dillard



J. Amy Dillard
Associate Professor of Law
Univ. of Baltimore School of Law
1420 N. Charles Street
Baltimore, MD 21201






Kant On Morals and Law

Marcelo C. Galuppo, PUC Minas; Universidade Federal de Minas Gerais; University of Baltimore School of Law, has published How Law Replaced Morals – A Kantian Contribution. Here is the abstract.

Although most scholars try to conceive Immanuel Kant`s Theory of Law and his Moral Theory as belonging to a systematic point of view, there is a difficulty that challenges most of the interpreters: If there is a moral content that informs how positive Law should be enacted, why Kant says that civil disobedience and resistance to it cannot rationally be allowed? This apparent incongruence acquires another significance when one considers the functional and structural differences that Kant establishes between Law and Morals. If we take them seriously into account we will realize that Kant operates a radical separation between Morals and Law, which can no longer derives its content from Morals, but instead looks for an increasingly more political foundation in Modernity.

A New Issue of the International Journal for the Semiotics of Law Now Available

The International Journal for the Semiotics of Law, volume 28, number 1: Special issue: Legal Translation and Jurilinguistics: Globalizing Disciplines. Retrospects and Prospects is now available. Link here.

Elizabeth Ryland Priestley

Eugene Volokh disinters Elizabeth Ryland Priestley from the dust of history here in a short essay for the New York University Journal of Law & Liberty. Priestley wrote some of Thomas Cooper's Political Essays, but has not gotten proper credit, even though Cooper noted the co-authorship by marking the essays with her initials. Professor Volokh recounts some of her literary and personal history in his piece and also points out that few women intellectuals of the period received any sort of notice for their work. 

F. A. Hayek's View of Legislation

Cyril Holm, Uppsala University Faculty of Law, has published his dissertation, F. A. Hayek's Critique of Legislation. Here is the abstract.

The dissertation concerns F. A. Hayek’s (1899–1992) critique of legislation. The purpose of the investigation is to clarify and assess that critique.

I argue that there is in Hayek’s work a critique of legislation that is distinct from his well-known critique of social planning. Further that the main claim of this critique is what I refer to as Hayek’s legislation tenet, namely that legislation that aims to achieve specific aggregate results in complex orders of society will decrease the welfare level.

The legislation tenet gains support; (i) from the welfare claim – according to which there is a positive correlation between the utilization of knowledge and the welfare level in society; (ii) from the dispersal of knowledge thesis – according to which the total knowledge of society is dispersed and not available to any one agency; and (iii) from the cultural evolution thesis – according to which evolutionary rules are more favorable to the utilization of knowledge in social cooperation than are legislative rules. More specifically, I argue that these form two lines of argument in support of the legislation tenet. One line of argument is based on the conjunction of the welfare claim and the dispersal of knowledge thesis. I argue that this line of argument is true. The other line of argument is based on the conjunction of the welfare claim and the cultural evolution thesis. I argue that this line of argument is false, mainly because the empirical work of political scientist Elinor Ostrom refutes it. Because the two lines of argument support the legislation tenet independently of each other, I argue that Hayek’s critique of legislation is true.

In this dissertation, I further develop a legislative policy tool as based on the welfare claim and Hayek’s conception of coercion. I also consider Hayek’s idea that rules and law are instrumental in forging rational individual action and rational social orders, and turn to review this idea in light of the work of experimental economist Vernon Smith and economic historian Avner Greif. I find that Smith and Greif support this idea of Hayek’s, and I conjecture that it contributes to our understanding of Adam Smith’s notion of the invisible hand: It is rules – not an invisible hand – that prompt subjects to align individual and aggregate rationality in social interaction.

Finally, I argue that Hayek’s critique is essentially utilitarian, as it is concerned with the negative welfare consequences of certain forms of legislation. And although it may appear that the dispersal of knowledge thesis will undermine the possibility of carrying out the utilitarian calculus, due to the lack of knowledge of the consequences of one’s actions – and therefore undermine the legislation tenet itself – I argue that the distinction between utilitarianism conceived as a method of deliberation and utilitarianism conceived as a criterion of correctness may be used to save Hayek’s critique from this objection.
 Download the dissertation from SSRN at the link.

Law and Ethics in Greek and Roman Law: A New Publication

AIDEL (the Associazione Italiana Diritto e Letteratura) announces the publication of Law and Ethics in Greek and Roman Declaration, volume 10 in the series Law & Literature (DeGruyter). Link to the publisher's description here.

February 24, 2015

Adultery, Fornication, and U.S. Mores

JoAnne Sweeny, University of Louisville School of Law, has published Undead Statutes: The Rise, Fall, and Continuing Uses of Adultery and Fornication Criminal Laws at 46 Loyola University Chicago Law Journal 127 (2014). Here is the abstract.

Cohabitation is a reality for a majority of Americans. Non-monogamous relationships are increasing over time, yet having a sexual relationship outside of marriage is illegal in a surprising number of states. Conservative groups or politicians also occasionally champion these laws, ensuring their longevity. This enduring conflict of values between the majority and a vocal minority is part of a cultural trend that has existed for centuries. From colonial times to the present, adultery and fornication laws have gone from being the most prolifically enforced to being virtually ignored by prosecutors and held to be unconstitutional invasions of privacy by judges. This Article traces that progression by looking at how American culture has changed over time, including judicial views on and changing evidentiary standards for the crimes of adultery and fornication, both of which have led to fewer prosecutions. The resulting picture indicates why these laws are no longer regularly enforced and why they still remain part of the criminal codes in several states, regardless of their uncertain constitutional pedigree.
The full text is not available from SSRN. 

February 21, 2015

The Men Who Declare For Goats

Eugene Volokh on the poet Martial on lawyers, here, for WaPo.

February 19, 2015

Remedies and Rights

Caprice L. Roberts, Savannah Law School, has published Remedies, Race & Civil Rights in the Old South.  Here is the abstract.

The central thesis of my larger body of scholarly work is that remedies shape rights. In this article, I argue that remedies shape civil rights. The law sometimes offers inadequate protections for redressing injuries. This shortfall is especially true for civil rights. Barriers — from immunity doctrines to constitutional limitations on monetary awards — block redress for civil rights. Such obstacles and gaps are not rare but flow with ease like the waters along the Georgia coast where aggrieved blacks have lived this shortfall from the time slave ships docked in 1755. Often the remedy that will best right such wrongs is an equitable remedy such as an injunction. Money may compensate as far as it can, but often cannot rectify the harm. For abridgement of certain rights, money alone will not suffice: it does not undo the vestiges of slavery. Undoing vestiges requires unshackling lingering chains. Those chains block equality and identity. Laws coupled with custom, rooted in inequality, blocked access to life’s basic services and amenities, denying individuals the ability to shape their own identity. Equitable remedies restore property rights and secure access to constitutional as well as other legal rights. Equity plays a vital role in vindication and advancement of civil rights. Equitable remedies in this arena, however, are forceful, complex, and difficult to effectuate. Ideally the very existence of the threat of equitable remedies coupled with the proof of constitutional violation leads to a consent decree under which the aggrieved and the government agree to relief mirroring a complex injunction. Otherwise, judges must exercise wise discretion to shape the equitable remedy: they must advance the right as far as reason will permit. However obtained, equitable remedies shape civil rights.
Download the paper from SSRN at the link.

February 18, 2015

CFP: Pre-Conference Symposium at the UT Austin, December 2, 2015



From the Society for Ethnomusicology 2015 Preconference Committee


Call for Proposals

MUSIC, PROPERTY AND LAW

Pre-Conference Symposium at the University of Texas at Austin
December 2, 2015

In Conjunction With
Society for Ethnomusicology 2015 Annual Meeting December 3-6, 2015 – Austin, TX

Hardly any form of contemporary musical practice occurs in its own sphere, free from the law. From the ubiquitous EULA and DRM to the growing juridification of intangible cultural heritage and indigenous practices, the legal and the musical have become profoundly intertwined. We invite discussions of music as property and as objects of legal discourse and practice in local, national and international contexts. Proposals examining political, cultural, and economic conditions for the emergence of new legal developments are also welcome.

The pre-conference encourages collaborative projects between ethnomusicologists, legal scholars, and others actively involved with music’s relation to intellectual property rights, cultural rights and human rights. We encourage the submission of proposals for panels that incorporate one or more of these perspectives.

Please send 250-word abstracts (and in the case of panel proposals with names and paper titles of all participants) to Veit Erlmann (erlmann@utexas.edu) by April 1, 2015. Accepted presenters will be notified by April 30, 2015.

The SEM 2015 Preconference Committee

Applications Now Being Accepted for the Kent Summer School in Critical Theory

From Maria Drakopoulou and Connal Parsley
The University of Kent




We are happy to write with news on the Kent Summer School in Critical Theory (KSSCT), a rare opportunity for doctoral students and early career researchers to work intensively with a leading critical scholar in their field. Applicants are welcomed from all critical disciplinary perspectives.

The school will be held in Paris this summer, running from 29 June to 10 July 2015.

The school will take the form of two parallel intensive 2-week seminars. One, “Inventing Law”, will be led by Professor Peter Goodrich (Cardozo, USA) and the other, “From Democracy to Fascism”, by Professor Davide Tarizzo (Salerno, Italy). We are excited to be able to offer junior scholars the chance to work with these renown critical thinkers. For more information on each seminar, please see the website, kssct.org.

In addition to the intensive seminars, there will be several lectures by the seminar teachers, as well as special guests Professors Geoffrey Bennington, Davina Cooper, and Roberto Esposito. We are pleased to announce that full lecture information can now be found on the website.

A limited amount of subsidised accommodation very close to the Paris venue will be available to the earliest successful applicants.

Applications close on 28 February 2015. Applications are easy: for information on how to apply, accommodation details and available scholarships, please visit the website, kssct.org.

Privacy On the 'Net? Parks & Recreation Weighs In

The Woman In the Courtroom

Linda Mulcahy, London School of Economics, Law Department, has published Watching Women: What Illustrations of Courtroom Scenes Tell Us About Women and the Public Sphere in the Nineteenth Century, at 42 Journal of Law and Society 53 (2015). Here is the abstract.

This article provides a revisionist account of the role of women in the legal system in the latter decades of the nineteenth century. Contrary to assertions that women played no role in trials other than as defendants and witnesses for most of our legal history, it suggests that women were much more active in the public sphere of Victorian law courts than previously envisaged. Drawing on depictions of trials in popular visual culture and fine art, it also reveals how images of the active female spectator challenged the emergence of new codes of behaviour which sought to protect the masculine realm of law from corruption by the feminine. It is argued that images have much to reveal about the socio‐legal dynamics of trials and the ways in which fine art has been complicit in the construction and reconstruction of behavioural codes in the courtroom.
The full text is not available from SSRN. 

Where Are the Women?

With a hat tip to Bridget Crawford. Professor Auchmuty has traced one trailblazer.

Rosemary Auchmuty, University of Reading, has published Recovering Lost Lives: Researching Women in Legal History at 42 Journal of Law and Society 34 (2015). Here is the abstract.

Drawing on the research I undertook into the life of Gwyneth Bebb, who in 1913 challenged the Law Society of England and Wales for their refusal to admit women to the solicitors’ profession, this article focuses on the range of sources one might use to explore the lives of women in law, about whom there might be a few public records but little else, and on the ways in which sources, even official ones, might be imaginatively used. It traces the research process from the case that inspired the research (Bebb v. the Law Society [1914] 1 Ch 286) through to the creation of an entry in the Oxford Dictionary of National Biography and what this means for women's history, emphasizing the importance of asking the ‘woman question’ and seeking out the broader significance of a woman's life in the context of her times.
The full text is not available from SSRN. 

The UK's First Female Law Professor

Fiona Caird Cownie, Keele University, has published The United Kingdom's First Woman Law Professor: An Archerian Analysis, in 42 Journal of Law and Society 127 (2015). Here is the abstract.

In 1970, at Queen's University Belfast, Claire Palley became the first woman to hold a Chair in Law at a United Kingdom university. However, little is known about the circumstances surrounding this event, or Claire Palley herself. This article (part of an extended project exploring her life history) seeks to address the question ‘Was there something about Claire Palley herself that made it more likely she would become the United Kingdom's first female law professor?’ Initially focusing on method, it seeks to answer that question by utilizing, for the first time in the context of legal education, the theoretical perspective provided by the work of the sociologist Margaret Archer. Reflecting upon Claire Palley's subjectivity, it focuses on those aspects of her personality which enabled her to pursue a successful career and become a pioneer in her chosen profession.
The full text is not available from SSRN. 

Arthur Conan Doyle and IP Law

Ross E. Davies, George Mason University School of Law; The Green Bag, has published Giving It Away at The Strand: A Short Story of Rights and Relationships in Intellectual Property as George Mason Law & Economics Research Paper No. 15-03. Here is the abstract.

In early 1916, Arthur Conan Doyle (the versatile and productive Victorian/Edwardian-era writer remembered nowadays mostly for his Sherlock Holmes stories), sent a letter and a package to Herbert Greenhough Smith, his longtime editor at The Strand Magazine. Could it be that Conan Doyle was having a little fun, making a slightly grim legal joke about his demand that the Strand return his old manuscripts? He may well have known enough about intellectual property law, or about the history of publishing, to be aware that some of the most important ownership-of-manuscript lawsuits had involved letters and diaries. And in “The Adventure of the Golden Pince-Nez” (the story in the package Conan Doyle had sent) the killing of an innocent person – a character who might have been based on Herbert Greenhough Smith – happens during a righteous attempt by another person to recover wrongfully withheld letters and a diary.

Download the paper from SSRN at the link.

February 17, 2015

Billy Joel and the Law

Touro Law School is hosting a conference on Billy Joel and the Law, March 22-23, 2015. The program lists many interesting speakers,including Judge Richard Dollinger of the New York Court of Claims, Justice J. Michael Eakin of the Supreme Court of Pennsylvania, Alex Long, Professor of Law, University of Tennessee Law School, Bruce Green, Professor of Law, Fordham Law School, Rebecca Roiphe, New York Law School, David Bilinksy, Thoughtful Legal Management, and Brian Frye, University of Kentucky Law School. There will be food and music and what looks like a really good time. And there's CLE available! More information here.

February 16, 2015

A New Book On Culture and Law In Jewish Tradition

News received via Susan Sage Heinzelman, UT, Austin:

Newly published:
Roberta Kwall, The Myth of the Cultural Jew: Culture and Law in Jewish Tradition (Oxford,2015).

Below are the cover comments by Dean Erwin Chemerinky ,and Rabbis Elliot Dorff and Asher Lopatin, followed by a brief summary of the book. 

“A brilliant exploration of the relationship between law and culture in the context of Judaism. Kwall offers a provocative thesis and impressively analyzes a myriad of contemporary topics. This book is a ‘must read’ not only for all interested in Judaism, but for all who are studying the relationship between law and culture.”

Erwin Chemerinsky Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law
University of California, Irvine, School of Law

The Myth of the Cultural Jew will change the way in which lay people, academics, and Jewish clergy and professionals think about the development of Jewish law. It is the first book to apply to Jewish law the method of cultural analysis used in secular legal studies. This book also has broader implications, for Kwall uses this method to address the critical question for Judaism today -- What kind of Jewish religion and identity will be viable for the future? It is a ‘must read’ for anyone interested in Judaism or Jewish law.”

Rabbi Elliot Dorff Rector and Distinguished Professor of Philosophy
American Jewish University

The Myth of the Cultural Jew is a fascinating book. It is both scholarly and practical, grappling with the challenges that face all of us in the contemporary world. Kwall writes a powerful and relevant message for the religious and non-religious alike. This book will lead you to a deeper understanding of who you are as a Jew in the 21st century.”

Rabbi Asher Lopatin President, Yeshivat Chovevei Torah Rabbinical School
 Book summary:

A myth exists that Jews can embrace the cultural components of Judaism without appreciating the legal aspects of the Jewish tradition. This myth suggests that law and culture are independent of one another.  In reality, however, much of Jewish culture has a basis in Jewish law. Similarly, Jewish law produces Jewish culture.  A cultural analysis paradigm provides a useful way of understanding the Jewish tradition as the product of both legal precepts and cultural elements. This paradigm sees law and culture as inextricably intertwined and historically specific. This perspective also emphasizes the human element of law’s composition and the role of existing power dynamics in shaping Jewish law.

In light of this inevitable intersection between culture and law, The Myth of the Cultural Jew: Culture and Law in Jewish Tradition argues that Jewish culture is shallow unless it is grounded in Jewish law. The book develops and applies a cultural analysis paradigm to the Jewish tradition that departs from the understanding of Jewish law solely as the embodiment of Divine command. Her paradigm explains why both law and culture must matter to those interested in forging meaningful Jewish identity and transmitting the tradition.
   

Upcoming Symposium at Cardozo Law and Rutgers Law: The Abolition of War--February 20-21, 2015

The Symposium on the Abolition of War takes place February 20-21, 2015 and is co-sponsored by Cardozo School of Law, Rutgers School of Law--Newark, and the Law and Humanities Institute. The February 20 event  takes place at Cardozo, begins at 9:30 a.m.,  and features talks by Stanley Fish, Mark Kurlansky, Elaine Scarry, and Richard Weisberg. The luncheon speaker is  Krzysztof Wodiczko. The February 21 event takes place at Rutgers, begins at 10 a.m., and will present talks by Michael Braff, Sarah Cole, Mark Kurlansky, Paul K. Saint Armour, Brian Soucek, Maria Stephan, Krzysztok Wodiczko, and Ekow Yankah,  There will also be a special musical performance by Ensemble Pi: (Eleanor Cory, Idith Meshulam, Katie Schlaikjer, Cheryl Weisberg, and Sam Weisberg). Ensemble Pi will also discuss antiwar sentiment in music. Wonderful bringing together of law and humanities!

February 8, 2015

Get Popcorn, Or Set Your DVRs, For "Better Call Saul"

Vince Gilligan, Bob Odenkirk offer up a "beginner's guide" to Better Call Saul, which debuts tonight (February 8, 2015) on AMC at 10 p.m., 9 Central time. Another episode airs tomorrow night.

Maryland Court Grants Appeal In "Podcast" Conviction

The Maryland Court of Special Appeals will hear Adnan Syed's appeal of his murder conviction in the death of Hae Min Lee. The death and trial are the focus of the popular podcast Serial.

February 6, 2015

Disorder In the Court

The New York Times reviews the second act of Breaking Bad, better known as Better Call Saul, here.  NPR offers its own take here.

February 4, 2015

Law as Science

Rolien Roos, North-West University Faculty of Law, has published Is Law Science? in volume 17 of the Potchefstroom Electronic Law Journal (2014).  Here is the abstract.

The question this contribution sets out to address is whether or not law can be regarded as a science. This notion is readily accepted by many, yet it is submitted that a proper theoretical justification for such an assumption is usually missing. The traditional primary sources of law, South African case law and legislation, distinguish between legal practice and legal science, but the basis of the distinction is not clear. However, an entire body of literature in the philosophy of science has developed around the question of when a discipline will amount to science. Various demarcation criteria proposed in the philosophy of science are considered. These include that science uses the scientific method, is susceptible to falsification, is puzzle-solving within a paradigm or renders beneficial results. None of these criteria offers a satisfactory solution to the problem. The proposition by a group of philosophers including Herman Dooyeweerd, Marinus Stafleu and DFM Strauss, that the answer to the demarcation question is to be found in modal abstraction, is then considered. Modal abstraction amounts to a consideration of reality (persons, things, theories and rules) from one or more defined point(s) of entry. It is an artificial and learnt manner of thinking as it approaches reality from the perspective of one of the modalities of being. For example, juridical abstraction would mean that a cow is considered as the object of someone's proprietary rights. An abstract idea of the cow's characteristics, from a juridical point of view, is formed and the rules of property law are applied. A number of South African legal philosophers, amongst others Van Zyl, Van der Vyver and LM du Plessis, have followed this approach. The South African legislature has also attempted to define the terms "science" and "research", mainly for funding purposes. These definitions are considered and the conclusion is that they do not provide the clear-cut answers one would expect. It will be argued that the nature of activities will determine whether an endeavour is scientific or not. The conclusion is that an alignment of the demarcation criterion developed by Strauss and others and the statutory definitions can provide a workable demarcation criterion. This "test" is then applied to the activities of law students, academics, practitioners and judicial officers to determine when they will be practising "science".
Download the article from SSRN at the link.

February 3, 2015

Australian Women Judges and Lawyers Through the Archives

Heather Roberts, Australian National University College of Law, has published Telling a History of Australian Women Judges Through Courts' Ceremonial Archives at 40 Australian Feminist Law Journal 147 (2015). Here is the abstract.

Swearing-in ceremonies are held to mark the investiture of a new judge on the bench. Transcribed and stored within courts’ public records, these proceedings form a rich ‘ceremonial archive’. This paper showcases the value of this archive for the (re)telling of Australian legal history and, particularly, a history of Australian women lawyers. Using a case study drawn from the swearing-in ceremonies of women judges of the High Court, Federal Court, and Family Courts of Australia between 1993 and 2013, the paper explores what this archive reveals about the Australian legal community’s attitudes towards women in the law. It argues that despite the regional and jurisdictional differences between these courts, recurring themes emerge. Notably, while feminising discourse dominates the earlier ceremonies, stories of the judges’ personal and judicial identity come to display a more overt feminist consciousness by the end of the Labor Governments in power in Australia between 2007 and 2013.
The full text is not available from download. 

Rethinking International Law

Frederic G. Sourgens, Washburn University School of Law, is publishing Reconstructing International Law as Common Law in volume 47 of the George Washington International Law Review (2015). Here is the abstract. 

This Article demonstrates that the predominant critique of international law as useless to assess international behavior overreaches. Threatening the integrity of international law, proponents of this critique, which includes leading international law scholars, conclude that “international law” masks an international politics. This politics operates by means of the technical idiom of competing self-contained treaty regimes addressing the various areas of international legal regulation. This Article demonstrates that this critique of international law is internally inconsistent. It explains that the critique’s juxtaposition of international politics with international law is inconsistent with the postmodern practice of deconstruction upon which their critique relies, meaning that the premise of the critique cannot be defended on its own terms. The Article next recalibrates the critique. It shows that rather than proving that international law is invalid, the critique actually demonstrates that international law functions like a common law. This means that international law follows an inductive rule-establishment process. An inductive process establishes norms on the basis of factual regularity. This Article will show that good faith drives this inductive rule establishment in international law. Good faith coordinates and translates how international law takes account of a wide variety of facts for purposes of establishing a rule and for assessing the violation of a rule. It does so by placing these facts in the context of what emerges as the core goal of international law: the protection of the legitimate differences in interest, experience, and perspective of the subjects international law intends to govern.

Download the article from SSRN at the link.