July 27, 2016

Popular Culture Presidential Candidates: #We're With Them

Yesterday was an historic day for the United States. One of the U.S.'s two major political parties nominated a woman as its Presidential candidate, Hillary Clinton, a former First Lady, U.S. Senator, and Secretary of State. Admittedly, other parties have nominated women as standard-bearers, beginning with the wonderful (and wonderfully scandalous) Victoria Woodhull in 1872 (Equal Rights Party). Her Veep pick was the legendary Frederick Douglass, writer, lecturer, abolitionist, and rights advocate, who brought balance to the ticket.

Belva Ann Lockwood ran on the similarly named National Equal Rights Party (1884); she had a female V.P. pick in Marietta Stow. She also ran in 1888. The comedian Gracie Allen ran on the Surprise Party ticket in 1940. Not a surprise--she wasn't really serious about campaigning and she didn't win. Shades of Pat Paulsen.

Other, more serious nominees on third party tickets have included Mary Kennery on the American Party ticket (1952), Charlene Mitchell on the Communist Party ticket (1968), and Margaret Wright on the People's Party ticket (1976), with the noted physician Benjamin Spock ("keep out of the draft") as her running mate. In 1992 we had a bumper crop: four parties nominated women: Leonora Fulani (New Alliance Party), Helen Halyard (Socialist Equality Party), Isabell Masters (Looking Back Party--my personal favorite for "Best Political Party Name"), and Gloria La Riva (Workers World Party).  Roseanne Barr was the standard bearer of the Peace and Freedom Party in 2012, receiving more than 67,000 votes; Jill Stein ran for the Green Party, as she is doing this year, and Peta Lindsay represented the Party for Socialism and Liberation.

It's true that major U.S. political parties have nominated women for the Vice Presidential slot:  the Dems called on Geraldine Ferraro to join Walter Mondale's Presidential ticket in 1984, and interestingly and perhaps more memorably, the Republicans nominated Sarah Palin as John McCain's running mate in 2008.

Let's turn to pop culture politics, where female politicians, and other non-pols, have actually made their mark in the Oval Office. Here are some of them?

The most recent and obvious Madam President is the main character in CBS' drama Madam Secretary: Elizabeth Faulkner (Tea Leoni), whose career shadows a number of real life female Secretaries of State, including Hillary Clinton's. As Cabinet member #1. the Secretary of State ranks behind the Vice President, Speaker of the House of Representatives, and President pro tem (pro tempore) of the Senate in the order of succession to the Presidency. Of persons in these offices, the voters elect only the Vice President, which is somewhat problematic in terms of democracy. During what began as the second Nixon Administration (1973-1977), we had a situation in which neither the sitting President (Mr. Ford) nor the sitting Vice President (Mr. Rockefeller) were actually elected to those offices. Mr. Ford was elected neither Vice President, nor President. Similarly, in The Show Must Go On, the first episode of the season season of Madam Secretary, Faulkner takes over as acting President after Air Force One's telecommunications go out with the President aboard, the Vice President is abroad and incapacitated with a really bad case of some weird illness, the Speaker (I think it's the Speaker), believes Ronald Reagan is the President (and so demonstrates that he's not compos mentis and the President Pro Tem is not qualified for some other reason. So, Liz, yer up. Faulkner is as intense a President as she was a Secretary of State, even though the show has its moments of levity.  Solving the nation's problems is a woman's business. Madam Secretary is a drama, after all.

Another current female Oval Office denizen is Selina Meyer (HBO's Veep), who started out, sensibly enough from the name of the series, as Vice President and ascended to the office of President at the end of the third season when the incumbent resigned.  As played by Julia Louis-Dreyfus, Meyer is calculating, somewhat mean-spirited, ambitious, and more than a little crazed. She's Frank Underwood without quite so much murderous intent.

Patricia Wettig is President Caroline Reynolds on Prison Break, which ran from 2005 to 2009 on Fox, and gives us an unnerving portrayal of a corrupt female Chief Executive who can run with the guys.

In Commander in Chief (2005-2006), Geena Davis plays Mackenzie Allen, the first woman to become President after the Chief Executive dies in office. Incidentally, Polly Bergen (Kisses for My President--see below) plays Mackenzie's mother. Note the androgynous name given to the Presidential character here.

The late Patty Duke played a female President in the short-lived Hail to the Chief (ABC, 1985); even in the rather progressive 1980s, the show was ahead of its time. Small wonder that Polly Bergen as a female President in Kisses for My President (1964) came off as rather less than fully emancipated against easy going Fred MacMurray as First Dude. MacMurray often played these kinds of roles in the later part of his career (think My Three Sons) but one can imagine a 1960s audience rejecting the notion that even he would accept being a house husband to the Most Powerful Woman in the World. All is eventually right with the world again when Polly regains her senses and her rightful place as the little woman when he does his husbandly duty, she becomes pregnant, and resigns her political office.

In an episode of Inside Amy Schumer, the comedian is elected President (aired May 12, 2016). Note that Ms. Schumer is a cousin of Senator Chuck Schumer (D-NY).

Most recently, the Showtime drama Homeland is casting Elizabeth Marvel as President-elect Elizabeth Keane, this news just in from The Hollywood Reporter. 

For female presidents of other nations, check out

Madame President (2004) (a Canadian becomes president of a foreign country).

Selected bibliography:

A Complete, Kind of Depressing History of Fictional Female Presidents

Serena Elavia, Television Loves Female Presidents, As Long As They're Republican, The Atlantic, March 4, 2015

From Veep to 24: Pop Culture's Female Politicians Ranked

Women and the White House: Gender, Popular Culture, and Presidental Politics (Justin S. Wright and Lily J. Goren, eds.; University Press of Kentucky,  2012).

At some point, I'll write a post about male pop culture Presidential candidates. Stay tuned.

Michaels on Law and Recognition: Toward a Relational Concept of Law

Ralf Michaels, Duke University School of Law, is publishing Law and Recognition — Towards a Relational Concept of Law in Pursuit of Pluralist Jurisprudence (Nicole Roughan and Andrew Halpin eds., Cambridge University Press, forthcoming). Here is the abstract.
Law is plural. In all but the simplest situations multiple laws overlap — national laws, subnational laws, supranational laws, non-national laws. Our jurisprudential accounts of law have mostly not taken this in. When we speak of law, we use the singular. The plurality of laws is, at best an afterthought. This is a mistake. Plurality is built into the very reality of law. This chapter cannot yet provide this concept; it can serve only to develop one element. That element is recognition. Recognition is amply discussed in the context of Hart’s rule of recognition, but this overlooks that recognition matters elsewhere, too. My suggestion is that we should accept not one but two rules of recognition in the concept of law. One, well-known, is the rule of internal recognition as developed by H.L.A. Hart — the idea that a developed legal system requires its recognition as law by its officials. The other, much ignored but equally important, is the rule of external recognition — the idea that law is law insofar as it is recognized externally by other legal systems. The rule of internal recognition is an example of a secondary rule. The rule of external recognition is of a different type. It is a tertiary rule. Hart suggested that a legal system is not complete unless it has, in addition to primary, also secondary rules. My suggestion is that, under conditions of legal pluralism, a legal system is not complete without such tertiary rules.
Download the essay from SSRN at the link.

Babie on Australian Religious, Legislative, and Judicial Protections for Religious Freedoms

Paul T. Babie, University of Adelaide, School of Law, is publishing Australia in the Encyclopedia of Law and Religion (2016). Here is the abstract.
This chapter, part of the Brill Encyclopedia of Law and Religion, outlines the principle [sic] features of the constitutional, legislative and judicial protection of religious freedom in Australia.
Download the essay from SSRN at the link.

Banović on Identity Politics and Legal Recognition

Damir Banović, University of Sarajevo, has published Identity Politics and Legal Recognition. Here is the abstract.
The article gives an overview of the different definitions of identity, sources of identification and approaches to the issue of identity, with a special focus on culture as a source of identification. The article also presents the issue of identity as it appears in essentialist, constructivist and dialogical theories. Using the concept of identity politics and various political, legal and philosophical approaches, the article gives an array of possible ways to treat the need for social and legal recognition of different identities, as well as ways in which law recognises individual and collective identities within a heterogeneous social community.
Download the article from SSRN at the link.

The Association for the Study of Law, Culture, and the Humanities Annual Conference Website Is Now Available

The new website for the Association of Law, Culture, and the Humanities is up. Visit it here.

The 2017 meeting will be held at Stanford School of Law, March 31-April 1, 2017.

Burazin on Legal Systems as Artifacts

Luka Burazin, University of Zagreb, Faculty of Law, has published Practical Concepts of Law as Artifact Kind in volume 3/4 of Pravni vjesnik (2015). Here is the abstract.
It is often said that, in contrast to natural kinds, artifacts are mind-dependent, meaning that they somehow depend on either human beliefs or activities. In addition, some specifically claim that this mind-dependency of artifacts means that they are concept-dependent, i.e., that they are constituted by the concepts and intentions of humans (artifact authors or creators) and that the latter, in turn, determine what features are relevant for an artifact to be a member of a certain artifact kind. #e paper therefore inquires into what these constitutive concepts are and what role they play. It also tries to explain the relationship between these concepts and the ‘theoretical’ ones. Since the paper’s main thesis is that law as such is an artifact or, more precisely, that legal systems are artifacts, it considers the said issue specifically in relation to the jurisprudential views on the ontological character of law.
Download the article from SSRN at the link.

Hatzis on the Illiberal Democracy of Ancient Athens

Aristides N. Hatzis, University of Athens, Department of Philosophy & History of Science; Faculty of Law; Athens University of Economics and Business, Department of Economics, is publishing The Illiberal Democracy of Ancient Athens. Here is the abstract.
Ancient Athenians introduced democracy, majoritarianism and popular sovereignty. They also introduced populism and rent-seeking. Moreover, Athenians didn’t invent the rule of law. The power of demos was almost unlimited, there were no constitutional guarantees, checks and balances. The laws were subjected to the whims of the majority of citizens or judges. Most importantly, individual rights were not recognized in Athens. The concept of liberty in Ancient Athens was very different from the concept of liberty that prevailed after the Great Revolutions of the late 18th and the early 19th century which led to the contemporary liberal democracies. We will discuss these issues with reference to famous historical episodes and trials. However, we will also see that the liberal ideas of individuality, toleration and the rule of law, appeared in a not-so-embryonic way, in three important works of the period (a tragedy, a comedy and a history book). These ideas were remarkably original but at the same time marginal. They didn’t exert any significant influence on the Athenian democratic institutions. This is the text of a Keynote Lecture at the international conference: “Ancient Greece and the Modern World: The Influence of Greek Thought on Philosophy, Science and Technology” (Ancient Olympia, August 2016).
Download the Lecture from SSRN at the link.

Crouch on Promiscuity, Polygyny, and the Power of Revenge: The Past and Future of Burmese Buddhist Law in Myanmar

Melissa Crouch, University of New South Wales, Faculty of Law, is publishing Promiscuity, Polygyny and the Power of Revenge: The Past and Future of Burmese Buddhist Law in Myanmar, in volume 3 of the Asian Journal of Law and Society (2016). Here is the abstract.
Myanmar is the only Buddhism-majority country in the world that has developed and maintained a system of family law for Buddhists enforced by the courts. This article considers the construction of Burmese Buddhist law by lawyers, judges and legislators, and the changes made through legislative intervention in 2015. It begins by addressing the creation and contestation of Burmese Buddhist law to demonstrate that it has largely been defined by men and by its perceived opposites, Hinduism and Islam. Three aspects of Burmese Buddhist Law that affect women are then examined more closely. First, Burmese Buddhist law carries no penalties for men who commit adultery, although women may risk divorce and the loss of her property. Second, a man can take more than one wife under Burmese Buddhist Law, a woman cannot. Third, restrictions on Buddhist women who marry non-Buddhist men operate to ensure the primacy of Burmese Buddhist Law over the potential application of Islamic law. This article deconstructs the popular claim that women are better off under Burmese Buddhist law than under Hindu law or Islamic law by showing how Burmese Buddhist law has been preoccupied with regulating the position of women. The 2015 laws build on this history of Burmese Buddhist law, creating new problems but also potentially acting as a new source of revenge.
Download the article from SSRN at the link.

July 26, 2016

Savannah Law School: @SavannahLawSch CFP for a Colloquium on American Legal Fictions

I am plagiarizing heavily from the Savannah Law Review's announcement of its September 2016 colloquium examining the influence of fictions on the law (because it's a PDF and I hate converting PDFs into Word for use on this blog).

Here's the skinny. Professor Garrett Epps (University of Baltimore School of Law) will present the keynote. The Law Review is accepting abstract (no more than 500 words) until August 22, 2016. Interdisciplinary submissions are apparently encouraged. I'm tempted to send in something, because I actually published a piece called Legal Fictions some years ago.

Here's more on the colloquium.

Ricca on the Intercultural Use of Human Rights and Legal Chorology

Mario Ricca, University of Parma, has published The Intercultural Use of Human Rights and Legal Chorology. Here is the abstract.
The essay deals with the contested universality of human rights from an intercultural point of view. Such a perspective conflates with the possible use of human rights discourse as a (horizontal) interface to translate different cultural subjectivities. Using this hermeneutical approach, spatial and semiotic proximities inherent to “multiculturality” are capable of showing and triggering renewed geographical and semiotic configurations. “Legal chorology” is the theoretical toolkit proposed here as a means of analyzing the emersion of new categorical and practical spaces of subjectivity.
Download the essay from SSRN at the link.

Morss on Gender and Culture in International Legal Theory.

John R. Morss, Deakin University Law School, has published ‘Call Me Ahab’: On Gender and Culture in International Legal Theory. Here is the abstract.
This paper investigates the project of public international law from two directions. First from the direction of the gendered character of international law; second from the direction of international law as cultural analysis. If gendered discourse plays a role within international law it is likely to operate in a ubiquitous and a structural manner, not in ways that are entirely captured by considerations of equity and representation. The search for national identities or personalities is a quest as perverse as that of Ahab. Whether from the ’inside’ – the identity politics of the nationalist – or from the ‘outside’ – the armchair analyses of the scholar of history, of culture, or of international law – this search is in some way not yet articulated, the opposite of what we should be doing.
The full text is not available from SSRN.

Norris on Constitutional Economics: Lochner, Labor, and the Battle for Liberty

Luke Norris, Columbia University Law School, is publishing Constitutional Economics: Lochner, Labor, and the Battle for Liberty in the Yale Journal of Law & the Humanities. Here is the abstract.
This Article argues that the conventional narrative about the decline of Lochnerism and the rise of mid-century substantive due process jurisprudence is incomplete. That narrative focuses initially on how the premises underlying Lochner’s conception of economic freedom were rejected. The Article instead focuses on how the labor movement articulated an alternative conception of freedom that was adopted by Congress, the Executive, and the Supreme Court. While Lochnerism was premised on a negative view of freedom, the labor movement articulated a positive view of freedom and analogized it to republican freedom of association in the political sphere. By reframing the terms of the Lochner-labor debate, the Article shows how strands of labor’s conception of associational freedom in one nominally private sphere — the workplace — are transported into modern substantive due process jurisprudence in the post-Griswold era as the doctrine protects association in another — the intimate sphere. The Article traces similarities between the rise of labor’s freedom and the rise of sexual and intimate freedoms and explores the ways in which they have transformed American constitutional law.
Download the article from SSRN at the link.

July 25, 2016

Meyer @pmeyer6104 on "Hamilton" and Legal Narrative

Philip Meyer on "Hamilton" and the power of narrative, here, for the ABA Journal.

Dougherty on the Misapplication of "Mastermind": A Mutant Species of Work for Hire and the Mystery of Disappearing Copyrights

F. Jay Dougherty, Loyola Law School (Los Angeles), is publishing The Misapplication of 'Mastermind': A Mutant Species of Work for Hire and the Mystery of Disappearing Copyrights in volume 39 of the Columbia Journal of Law & the Arts (2016). Here is the abstract.
Recent decisions in both the Ninth (Garcia v. Google) and Second (Casa Duse 16) Circuit have applied concepts of "mastermind" authorship or "dominant author" to claims of copyright in individual contributions of actors and directors to a motion picture. This article, which is a transcript of a presentation at Columbia Law School, describes the roots of the "mastermind" concept in copyright and argues for its mis-application in this context.
The full text of the article is not available from SSRN.

Cross-posted to the Media Law Prof Blog.

Branco on Courthouses as Spaces of Recognition, Functionality, and Access to Law and Justice: A Portuguese Reflection

Patricia Branco, Universidade de Coimbra, Centre for Social Studies (CES), is publishing Courthouses as Spaces of Recognition, Functionality and Access to Law and Justice: A Portuguese Reflection in volume 6 of Oñati Socio-Legal Series (2016). Here is the abstract.
One of the most overlooked topics at the level of reflection regarding law and the legal system, has been the courthouse architecture. Architecture organizes and structures space, making it intelligible, understandable, and capable of being interpreted as possible, being that the exterior and interior, as well as materials and objects present therein can facilitate or inhibit our activities through how they mean and represent certain messages. Hence it becomes necessary to make an analysis of the spaces of justice - and here I have in mind the Courthouse as a privileged public space of justice – taking into consideration the circumstances of time, place of jurisdiction, the historical, political, regulatory, and socio-cultural contexts, as well as legal tradition. Thus, and by analyzing the trends (international and national) of development of construction and / or adaptation (types of buildings and internal organization, focusing on different infrastructures and accessibility) and respective use, including, here, the representations and spatial practices of the real actors (professionals and users), I propose to consider the importance of regarding courthouses as spaces of justice, through the lenses given by the functions of recognition, functionality and access to law and justice.
Download the article from SSRN at the link.

Kang on Oliver Wendell Holmes and the Obsessions of Manliness

John M. Kang, St. Thomas University School of Law, is publishing Prove Yourselves: Oliver Wendell Holmes and the Obsessions of Manliness in volume 118 of the West Virginia Law Review (2016). Here is the abstract.
In order for constitutional democracy to endure, Americans must be tough, must be manly — and indeed heroic; or so Oliver Wendell Holmes argued, the famous justice who, in his mid-twenties, was also a thrice wounded veteran of the Civil War. Holmes is often wrongly portrayed as a social Darwinist or as a political progressive sympathetic to workers or even as a prototypical liberal softy of sorts. Notwithstanding his own words, there were few bases for these accounts. Holmes’s most important opinions dealing with First Amendment were impelled by an idiosyncratic idea of manliness, and in particular, a view of manliness that was derived from his account of martial heroism. He argued that only a manly people who embraced his own brand of heroism could endure the frightening consequences that would be ushered by the political freedom protected by the First Amendment. Only such a heroic people, that is, could tolerate conditions where communists, anarchists, and other subversives threatened to destroy the United States.
Download the article from SSRN at the link.

Bakht and Collins on Freedom of Religion and the Preservation of Aboriginal Sacred Sites in Canada

Natasha Bakht and Lynda Margaret Collins, both of the University of Ottawa, Common Law Section, have published The Earth is Our Mother: Freedom of Religion and the Preservation of Aboriginal Sacred Sites in Canada as Ottawa Faculty of Law Working Paper No. 2016-24. Here is the abstract.
For centuries, the Canadian state engaged in systematic religious persecution of Aboriginal peoples through legal prohibitions, coercive residential schooling and the dispossession and destruction of sacred sites. Though the Canadian government has abandoned the criminalization of Aboriginal religious practices, and is beginning to come to grips with the devastating legacy of residential schools, it continues to permit the destruction and desecration of Aboriginal sacred sites. Sacred sites play a crucial role in most Aboriginal cosmologies and communities; they are as necessary to Aboriginal religions as human-made places of worship are to other religious traditions. The ongoing case of Ktunaxa Nation v BC represents the first opportunity for the Supreme Court of Canada to consider whether the destruction of an Aboriginal sacred site constitutes a violation of freedom of religion under section 2(a) of the Charter. Building on the ground-breaking work of John Borrows and others, we will argue that Aboriginal spiritual traditions have a home in this provision and merit a level of protection equal to that enjoyed by other faith groups in Canada. In general, section 2(a) will be infringed by non-trivial state (or state-sponsored) interference with an Aboriginal sacred site. Moreover, the approval of commercial or industrial development on an Aboriginal sacred site without consent and compensation will generally be unjustifiable under section 1.
Download the article from SSRN at the link.

July 22, 2016

Daniel Solove @DanielSolove As a Character In a Play About Privacy

Is this a first? A real life law prof is a character in a theatrical production. We've had Supreme Court Justices in opera (Ruth Bader Ginsburg and Antonin Scalia in Derrick Wang's Scalia/Ginsburg). And we've see real law profs depicted in films and tv movies: Alan Dershowitz in Reversal of Fortune and various OJ docudramas (and Gerald Uelman of Santa Clara School of Law as well).

But now George Washington Law Faculty member Daniel Solove is a character in Privacy, curently in a run at the Public Theater through August 14th. The work, written by James Graham, and starring Daniel Radcliffe, is an update of Mr. Graham's 2014 play and featuring topical references, focusing on the issues of privacy in a world increasingly concerned about the line between public and personal personas. Other real life characters in the play include Sherry Turkle, well known social science and media tech prof at MIT.  The reviewer makes comparisons with the world of magic performance, which is interesting as well. He notes that a desire to honor the star's request for secrecy about the play's twists and turns keeps him from revealing much about its specifics, although let's face it: there's a difference between secrecy and privacy. But let's go with the desire to limit exposure, if only to keep the fun going. Shades of Agatha Christie's Witness for the Prosecution and The Mousetrap.

More here from the GW Law website,  here from the New York Times.

July 21, 2016

Leitzel on the Parthenon (Elgin) Marbles

James A. Leitzel, University of Chicago, has published The Parthenon Marbles in the British Museum. Here is the abstract.
In the early part of the 19th century sculptures from the Parthenon in Athens were removed from the Acropolis under the direction of the Earl of Elgin, then the British ambassador to the Ottoman Empire, which at the time included Greece. The sculptures were brought to Britain, finding their way to the British Museum in London in 1816, where they are viewed by millions of museum visitors annually. A debate long has simmered as to whether these Parthenon Marbles, which date from the 5th century BCE, should be returned to Athens or remain in the United Kingdom. Elements of the debate include questions about: the legitimacy of the initial relocation of the statuary; the quasi-legal impact of more than 200 years of British stewardship; the risk-mitigating role for dispersal of art; and, the influence on other art and museums of any precedent that might be established by return of the Parthenon Marbles. This paper surveys the arguments on both sides of the debate. A Law-and-Economics lens is employed to examine the “property dispute” surrounding the Marbles. Coase-like reasoning is applied to the question of the “highest-valued” location of the Marbles, supplemented with behavioral economics concepts involving cultural identity and endowment effects. The paper concludes by offering some contours for a potentially Pareto-improving agreement that would result in the reunification of the Parthenon Marbles in Greece.
Download the article from SSRN at the link.

Ricca on Law, Cultural Categories, and Legal Geographies

Mario Ricca, University of Parma, has published Errant Law: Spaces and Subjects. Here is the abstract.
The essay addresses the following topics: I will talk about the intertwining between cultural categories and spatial categories. The first axis for the analysis will address the interspatial blurring and blending produced by the translating of the individuals through manifold and culturally plural circuits of state/territorial sovereignty. The second axis will focus on the intercultural translation intended as place of convergence and condensation of categorical connotations used by different cultures for marking the space. I will try to show how translating cultures, each into another, by means of law’s spectrum could be equivalent and coextensive with translating different ‘spatialities’, and viceversa. Reaching this interlocutory target allows for the configuration of inter-spaces capable of working as a platform to assure the legal relevance of different culturally oriented subjective agencies. The theoretical toolkit to investigate these topics is “legal chorology”. It will be explained by these sequential steps: a. Legal chorology and a timely intercultural translation. b. Inter-spatial dynamics and cognitive deficiencies of legal qualifications across cultures. Subsequently, I will apply the above considerations to envisage a pluralistic legal approach conceived beyond the exclusive use of inter-normative devices and inter-legality.
Download the article from SSRN at the link.

July 20, 2016

A New Book on Speech: Barendt On Anonymous Speech: Literature, Law and Politics

Eric Barendt has published Anonymous Speech (Hart Publishing, 2016). Here is a description of the book's contents from the publisher's website.

Anonymous Speech: Literature, Law and Politics discusses the different contexts in which people write anonymously or with the use of a pseudonym: novels and literary reviews, newspapers and political periodicals, graffiti, and now on the Internet. The book criticises the arguments made for a strong constitutional right to anonymous speech, though it agrees that there is a good case for anonymity in some circumstances, notably for whistle-blowing. One chapter examines the general treatment of anonymous speech and writing in English law, while another is devoted to the protection of journalists' sources, where the law upholds a freedom to communicate anonymously through the media. A separate chapter looks at anonymous Internet communication, particularly on social media, and analyses the difficulties faced by the victims of threats and defamatory allegations on the Net when the speaker has used a pseudonym. In its final chapter the book compares the universally accepted argument for the secret ballot with the more controversial case for anonymous speech. This is the first comprehensive study of anonymous speech to examine critically the arguments for and against anonymity. These arguments were vigorously canvassed in the nineteenth century – largely in the context of literary reviewing – and are now of enormous importance for communication on the Internet.

 Media of Anonymous Speech

Gordon on Wills, Narratives, Possessions, and Meaning

Deborah S. Gordon, Drexel University School of Law, is publishing Mor[t]ality and Identity: Wills, Narratives, and Cherished Possessions in the Yale Journal of Law and the Humanities. Here is the abstract.
Franz Kafka is credited with observing that “the meaning of life is that it stops.” This recognition — that life’s one certainty is certain death — has been the source of great artistic, scientific, political, and personal inspiration. How we have lived over the course of our days — our individual and collective histories — and how we will be remembered by those who survive us — our legacies — are bridged not only by our achievements and relationships but also by cherished items of property that we have accumulated and decided to pass on. This type of possession often has a narrative that endows it with meaning. By incorporating a personal property narrative into testamentary documents, a decedent can transcend her mortality by infusing it with her morality. This Article starts by discussing connections between property law and language, explaining how property theorists have used metaphorical and narrative language about “things” to explore the political and economic communities the property creates among the people who have interests in those things. The Article then explores various inheritance texts, both fictional and legal, to demonstrate the multiple ways narratives and inheritance intersect and together “transmit traditions, cultural values, and ideologies.” The balance of the Article explores the potential for stories about cherished possessions to democratize inheritance law and enhance its purposes. It does so, first, by proposing model language to assist individuals and individuals and their lawyers in drafting conveyances that acknowledge the narrative power of cherished possessions. Having surmounted this procedural hurdle, the remaining sections argue that the current practice of trivializing personal property dispositions, either by relegating them to separate non-binding memoranda or not dealing with personal property at all other than in a general or residuary clause, are missed opportunities. Building from empirical studies that show how individuals identify with personal possessions, often because of the memories associated with those items, this Article argues that including these family histories in testamentary documents can help make estate planning more accessible and meaningful to a broad range of property owners. Encouraging personal property dispositions that include narratives also benefits survivors; psychological research shows a relationship between family stories and resilience, and sociological studies support the idea that sharing stories aids in bereavement. Finally, using this narrative approach as a strategy for encouraging broader participation in estate planning will benefit the inheritance system more holistically.
Download the article from SSRN at the link.

July 19, 2016

USA Network Delays Premiere of Crime Drama "Shooter"

The USA Network has once again delayed the premiere of its crime drama Shooter, this time until fall. This time the network cited yet more violence worldwide,  including the assassination of three law enforcement officers in Baton Rouge, Louisiana, on July 17, a shooting in Bristol, Tennessee, the terrorist attack in the streets of Nice, France, on July 14. There was also a terrorist attack on Istanbul Airport in late June that resulted in dozens of deaths.

The network had previously put off the premiere after the attack on Dallas law enforcement on July 7th, during which five officers died. More here from Deadline.

Registration Open For Central States Law Schools Association Conference

From the mailbox:


Registration is now open for the Central States Law Schools Association 2016 Scholarship Conference, which will be held on Friday, September 23 and Saturday, September 24 at the University of North Dakota School of Law in Grand Forks, ND. We invite law faculty from across the country to submit proposals to present papers or works in progress.
CSLSA is an organization of law schools dedicated to providing a forum for conversation and collaboration among law school academics. The CSLSA Annual Conference is an opportunity for legal scholars, especially more junior scholars, to present on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment. More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work. Scholars from member and nonmember schools are invited to attend.

Please click here to register. The deadline for registration is September 2, 2016.

Hotel rooms are now available for pre-booking. The conference hotel is the Hilton Garden Inn in Grand Forks. The hotel phone number is (701) 775-6000. When booking, identify yourself as part of the “UND School of Law” block to receive a daily rate of $89. Please note that conference participants are responsible for all of their own travel expenses including hotel accommodations.

For more information about CSLSA and the 2016 Annual Conference please subscribe to our blog.
We look forward to seeing you in Grand Forks!


The 2016 CSLSA Board
For more information about CSLSA, visit our website at http://cslsa.us/ or contact a board member.

Denvir @JohnDenvir on Better Call Saul and the Trickster Lawyer

John Denvir's latest post from Guile Is Good: this one on Better Call Saul's Jimmy McGill and signs that his tenure at Davis & Main demonstrates some real ethical challenges. In this post Professor Denvir continues to develop his "lawyer as trickster" theme.

July 18, 2016

Lovett on a Dispute Over Movables: The Professor Longhair Lawsuit

John A. Lovett, Loyola University New Orleans College of Law, is publishing Professor Longhair's Legacy: A Comparative Perspective on Revendicating Movables in Northern Lights: Essays in Honour of David Carey Miller (Douglas Bain, Roderick Paisley, and Andrew R. C. Simpson, eds.; Aberdeen University Press, 2016) (Forthcoming). Here is the abstract.
This essay addresses the problem of how an owner of a corporeal movable can recover possession of the movable from another person who detains or possesses it without right. It approaches this age-old problem through the lens of SongByrd, Inc. v. Bearsville Records, Inc., 104 F.3d 773, (5th Cir. 1997) and SongByrd, Inc. v. Estate of Grossman, 206 F.3d 172 (2d Cir. 2000). These two decisions addressed the claims of SongByrd, Inc., the successor in interest of the legendary, New Orleans, rhythm and blues pianist Henry Roeland Byrd, aka Professor Longhair, against the estate of the legendary, rock and roll producer Albert Grossman. SongByrd sought to recover possession of several master tapes made by Byrd and other New Orleans musicians in the early 1970s that later made their way into Grossman’s possession. Without the consent of Byrd or his heirs, Grossman’s estate eventually licensed these master tapes to two record companies. One of these companies eventually released an album that earned Byrd a posthumous Grammy Award. After providing biographical background on Byrd and Grossman and explaining how the master tapes ended up in Grossman’s possession, the essay examines the conceptual and pragmatic differences between Louisiana’s civil law response to SongByrd’s revendicatory action to recover the tapes and New York’s common law approach that framed the merits of the dispute in terms of when SongByrd’s claims for replevin and conversion began to accrue. In essence, the two SongByrd decisions illustrate the difference between a civil law acquisitive or positive prescription approach that asks whether a would-be adverse possessor has taken sufficient steps to begin to possess as owner and deserves to be awarded with ownership through prescription and a common law approach that focusses on whether the true owner has been inexcusably passive in pursuing claims to recover his property. The essay also addresses the long term impact of the respective decisions on the law of Louisiana and New York and how the controversy has been used by property law scholars in the United States to illustrate a statute of limitations/accrual approach to the claims of owners seeking to recover valuable personal property or movables.
Download the essay from SSRN at the link.

Hesselink on Private Law and the European Constitutionalization of Values

Martijn W. Hesselink, University of Amsterdam, Centre for the Study of European Contract Law (CSECL), has published Private Law and the European Constitutionalisation of Values as Amsterdam Law School Research Paper No. 2016-26 and Centre for the Study of European Contract Law Working Paper Series No,. 2016-07. Here is the abstract.
According to the CFREU, the EU is founded on the general values such as values of human dignity, freedom, equality and solidarity. In addition, the TEU refers to a more political set of foundational values, ie respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights. These references could be understood as purely ornamental, or as irrelevant in any case for private law. Indeed, it is true that the Court of Justice so far has never made any references to these values in private law cases. Still, the Court already has shown boldness before in the context of the interpretation and review of secondary EU law in private law cases, when it discovered general principles of EU law and general principles of civil law. Therefore, it should not be excluded that the Court may be tempted one day to follow the example of the German constitutional court that famously understands its national constitution as expressing an objective system of constitutional values. This paper explores what such an understanding of private law as an instrument for furthering common European values would entail and examines whether such an ethical reading of European private law would be desirable. It argues that the promotion by the EU of a set of official values through its laws is not compatible we the respect we owe each other in a society characterised by reasonable pluralism. In addition, it points to further difficulties, both of a moral and a practical nature, of the idea of advancing ethical values through private law. It concludes that although it is very well thinkable that the values to which the TEU and the Charter refer will one day be interpreted as an objective value system with (indirect) horizontal effects, the Court of Justice nevertheless should refrain from going down that road.
Download the article from SSRN at the link.

July 16, 2016

Attica Locke @atticalocke Wins Harper Lee Prize for Legal Fiction

Writer Attica Locke has won the Harper Lee Prize for Legal Fiction for her novel Pleasantville. The American Bar Association and the University of Alabama award the prize every year for the best novel-length work that demonstrates the ability of lawyers to make changes in society. More here from the ABA Journal.

Pleasantville (Harper, appropriately enough) is Ms. Locke's third novel.  She has also worked on the TV show Empire. Here's a 2015 NPR interview with Ms. Locke.

July 13, 2016

CBS's New Legal Drama "Bull" Will Center On a Trial Consultant

Michael Weatherly (NCIS) stars in the legal drama Bull for CBS this fall. The show is inspired by Phil McGraw's career as a trial consultant, and will air Tuesdays at 9, 8 Central time.  Shades of Runaway Jury.   Others in the cast include  Freddy Rodriguez (Six Feet Under) and Chris Jackson (the musical "Hamilton"). 

July 12, 2016

Zimmermann on the Comparative Law of Successions and Cultural Differences

Reinhard Zimmermann, Max Planck Institute for Comparative and International Private Law, has published Kulturelle Prägung des Erbrechts? (Does the Law of Succession Reflect Cultural Differences?) at 71 JuristenZeitung (JZ) 321 (April 2016). Here is the abstract.
Deutsche Zusammenfassung: Nach weit verbreiteter Auffassung ist das Erbrecht eine in besonderem Maße kulturell verwurzelte Materie. Damit verbunden ist die Einschätzung, dass dem Erbrecht eine „Tendenz zur Bewahrung“ eigentümlich sei, und dass kritisch wertende Rechtsvergleichung oder gar Rechtsvereinheitlichung kaum Erfolg versprechen. Der vorliegende Beitrag stellt diese Ansichten infrage. Aufgezeigt werden unter anderem rechtsordnungsübergreifende Konstanten und Entwicklungstendenzen, Möglichkeiten kritischer Reflexion und historische Beispiele von Rechtsrezeption, Rechtsvereinheitlichung und Rechtsänderung. Inhaltlich befasst sich der Beitrag nur mit zwei, allerdings zentralen Problemkomplexen: Testamentsformen und gesetzliche Erbfolgeordnung. English Abstract: It is widely thought that the law of succession reflects deeply-rooted cultural differences. Related to this is the idea that the law of succession is a subject marked by resistance to change; and also the perception that critical comparative studies or attempts at legal unification are unpromising endeavours. The present essay challenges these views. It points out transsystematic reference points and trends of legal development, possibilities for critical reflection, historical examples of legal transplants, legal unification, and legal change, as well as other phenomena which are incompatible with the prevailing view. All examples are taken from only two, though central, fields: testamentary formalities and the rules on intestate succession. Note: This article is published in the Max Planck Private Law Research Paper Series with the permission of the rights owner, Mohr Siebeck. All full-text JuristenZeitung articles are available via pay-per-view or subscription at IngentaConnect, a provider of digital journals on the Internet. Downloadable document is in German.
Download the article from SSRN at the link.

Friedman on Talmudic Arguments

Hershey H. Friedman, City University of New York (CUNY), Department of Business Management, has published Talmudic Arguments: The Use of Insults, Reprimands, Rebukes and Curses as Part of the Disputation Process. Here is the abstract.
In the Talmud, the colleague one argued with most in legal matters in the Talmud was known as “bar plugta”; this individual was typically one’s best friend. This was seen as the ideal study partnership since it involved constructive arguing; one might see it as form of adversarial collaboration. Unfortunately, arguing often results in insults being hurled and there is always the risk that an insult can be seen as harsh rather than playful or part of the disputation process. One example of an insult used fairly frequently is the term terada which either means scatterbrain or lunatic. “Vinegar son of wine” is an expression used to indicate that someone was inferior to his father. The following insult was said about Rabbah bar bar Chanah [bar means son]: “Every Abba is as stupid as a donkey; and every bar bar Chanah is a fool.” This paper examines and discusses many different insults, reprimand, rebukes and even curses used by the sages.
Download the article from SSRN at the link.

Hulsebosch on English Liberties Outside England

Daniel J. Hulsebosch, New York University School of Law, is publishing English Liberties Outside England: Floors, Doors, Windows, and Ceilings in the Legal Architecture of Empire in the Oxford History of English Law and Literature 1500-1700 (Lorna Hutson, ed., Oxford University Press, forthcoming). Here is the abstract.
We tend to think of global migration and the problem of which legal rights people enjoy as they cross borders as modern phenomena. They are not. The question of emigrant rights was one of the foundational issues in what can be called the constitution of the English empire at the beginning of transatlantic colonization in the seventeenth century. This essay analyzes one strand of this constitutionalism, a strand captured by the resonant term, ‘the liberties and privileges of Englishmen’. Almost every colonial grant – whether corporate charter, royal charter, or proprietary grant – for roughly two dozen imagined, projected, failed, and realized overseas ventures contained a clause stating that the emigrants would enjoy the liberties, privileges and immunities of English subjects. The clause was not invented for transatlantic colonization. Instead, it had medieval roots. Accordingly, royal drafters, colonial grantees, and settlers penned and read these guarantees against the background of traditional interpretations about what they meant. Soon, however, the language of English liberties and privileges escaped the founding documents, and contests over these keywords permeated legal debates on the meaning and effects of colonization. Just as the formula of English liberties and privileges became a cornerstone of England’s constitutional monarchy, it also became a foundation of the imperial constitution. As English people brought the formula west, they gave it new meanings, and then they returned with it to England and created entirely new problems. Liberties and privileges claims fell into five functional categories. First, the claim that colonists abroad and their descendants enjoyed English liberties functioned as an open door, allowing overseas colonists to return home to England and be treated as equal English subjects. Second, the king or his colonial deputies might make positive grants of English liberties to subjects in a royal territory outside England as an inducement for English subjects to migrate there. Here, the grant of English liberties and privileges functioned as a window, a transparent promise of familiar and cherished rights to encourage settlement. Third, already by the time of the English Civil War and more frequently by century’s end, the colonists themselves sometimes claimed English liberties, privileges, and immunities abroad as a floor below which governors could not push. Fourth, in the reverse of the second, the claim that overseas subjects had to be governed according to English standards, including English liberties and privileges, could function as a ceiling on colonial innovation. It was a ceiling measured by metropolitan officials, especially the Privy Council as it reviewed colonial statutes and judicial cases to ensure that they were, in the familiar language of colonial grants, ‘agreeable’ with and ‘not repugnant’ to the laws of England. Finally, colonial assumptions of English liberties functioned as a mirror through which colonists could see themselves as English, even when their colonial rights, such as their property rights, were viewed at home as peculiar. If for example a subject of the English king in an overseas dominion owned slaves in that dominion and wished to sojourn home, could he bring his slaves? Could he carry the rights of a Virginian or Jamaican with him to England and enjoy those rights there? Collapsing English and local liberties, slaveholders argued affirmatively. As Englishmen they should, they thought, be able to move around the empire with their property, including human property.
Download the essay from SSRN at the link.

July 11, 2016

A New Book from Routledge Publishing: Law, Memory, Violence: Uncovering the Counter-Archive (Edited by Stewart Motha and Honni van Rijswijk)

Now available: Law, Memory, Violence: Uncovering the Counter-Archive (Stewart Motha and Honni van Rijswijk, eds.; Routledge, 2016). Here is a description of the book's contents from the publisher's website.
The demand for recognition, responsibility, and reparations is regularly invoked in the wake of colonialism, genocide, and mass violence: there can be no victims without recognition, no perpetrators without responsibility, and no justice without reparations. Or so it seems from law’s limited repertoire for assembling the archive after ‘the disaster’. Archival and memorial practices are central to contexts where transitional justice, addressing historical wrongs, or reparations are at stake. The archive serves as a repository or ‘storehouse’ of what needs to be gathered and recognised so that it can be left behind in order to inaugurate the future. The archive manifests law’s authority and its troubled conscience. It is an indispensable part of the liberal legal response to biopolitical violence. This collection challenges established approaches to transitional justice by opening up new dialogues about the problem of assembling law’s archive. The volume presents research drawn from multiple jurisdictions that address the following questions. What resists being archived? What spaces and practices of memory - conscious and unconscious - undo legal and sovereign alibis and confessions? And what narrative forms expose the limits of responsibility, recognition, and reparations? By treating the law as an ‘archive’, this book traces the failure of universalised categories such as 'perpetrator', 'victim', 'responsibility', and 'innocence,' posited by the liberal legal state. It thereby uncovers law’s counter-archive as a challenge to established forms of representing and responding to violence.

Charles on Critical Queer Studies: Law, Film, and Fiction in Contemporary American Culture

ICYMI: Casey Charles, Critical Queer Studies: Law, Film, and Fiction in Contemporary American Culture (Routledge, 2012). Here is a description of the book's contents from the publisher's website.
Critical Queer Studies examines contemporary films and documentaries that dramatize the intersection of law and queer life, analyzing the effects of legal doctrines-jury selection, unwanted sexual advance, negligence, hate crimes, and gay marriage-on the production and reception of queer film and fiction. Exploring the interaction of these discourses by discussing internationally-known American films, the book demonstrates how the law maintains its hold over the queer subject through promoting certain ideological fictions and conversely how film and literature draw upon the material realities of queer legal status to dramatize conflicts between law and the marginalized subject. Critical Queer Studies synthesizes queer studies, law and literature, and film studies, engaging these fields to show how the struggle for gay and lesbian rights has influenced the production of film and fiction.
Professor Charles is a former attorney who now teaches English at the University of Montana.

Two Books On Golden Age Detective Fiction

Two books of interest, which I learned about from the blog crossexamining crime
(now listed in the blogroll).

Megan Hoffman, Gender and Representation in British Golden Age Crime Fiction (Palgrave Macmillan, 2016). Here is a description of the contents from the publisher's website.

This book provides an original and compelling analysis of the ways in which British women’s golden age crime narratives negotiate the conflicting social and cultural forces that influenced depictions of gender in popular culture in the 1920s until the late 1940s. The book explores a wide variety of texts produced both by writers who have been the focus of a relatively large amount of critical attention, such as Agatha Christie, Dorothy L. Sayers and Margery Allingham, but also those who have received comparatively little, such as Christianna Brand, Ngaio Marsh, Gladys Mitchell, Josephine Tey and Patricia Wentworth. Through its original readings, this book explores the ambivalent nature of modes of femininity depicted in golden age crime fiction, and shows that seemingly conservative resolutions are often attempts to provide a ‘modern-yet-safe’ solution to the conflicts raised in the texts.

Link to chapter one. 

Merja Makinen,  Agatha Christie: Investigating Femininity (Palgrave, 2006). Here is a description of the contents from the publisher's website.
Christie's books depict women as adventurous, independent figures who renegotiate sexual relationships along more equal lines. Women are also allowed to disrupt society and yet the texts refuse to see them as double deviant because of their femininity. This book demonstrates exactly how quietly innovatory Christie was in relation to gender.

Link to the Introduction.