May 23, 2017

Culture In the Domains of Law: New Publication From Cambridge University Press @CUP_Law

New publication: Culture in the Domains of Law (René Provost, ed., Cambridge University Press, 2017) (Cambridge Studies in Law and Society). Here is a list of contributors: René Provost, Anthony Connolly, Pascale Fournier, Lucia Bellucci, Kirsten Anker, Justin Richland, Jen Hendry, Thomas Burelli, Régis Lafargue, Eric Reiter, Morgan Brigg, Kristin Doughty, David Chandler. Here is a description of the contents, provided by the publisher.
What does it mean for courts and other legal institutions to be culturally sensitive? What are the institutional implications and consequences of such an aspiration? To what extent is legal discourse capable of accommodating multiple cultural narratives without losing its claim to normative specificity? And how are we to understand meetings of law and culture in the context of formal and informal legal processes, when demands are made to accommodate cultural difference? The encounter of law and culture is a polycentric relation, but these questions draw our attention to law and legal institutions as one site of encounter warranting further investigation, to map out the place of culture in the domains of law by relying on the insights of law, anthropology, politics, and philosophy. Culture in the Domains of Law seeks to examine and answer these questions, resulting in a richer outlook on both law and culture.

Gavigan on Petit Treason in Eighteenth Century Treason: Women's Inequality Before the Law

ICYMI: Shelley A. M. Gavigan, Osgoode Hall Law School, has published Petit Treason in Eighteenth Century England: Women's Inequality before the Law in volume 3 of the Canadian Journal of Women and the Law (1989). Here is the abstract.
This article examines the English law of petit treason (murder of a husband by his wife or a master by a servant or a religious superior by a religious inferior) and its implications for married women charged with murdering their husbands. From 1351 – 1828, a woman accused of killing her husband was liable to be indicted not for willful murder but for the aggravated offence of petit treason and, until 1790, she faced public execution by burning if convicted. Relying on eighteenth century legal treatises, reported cases, press accounts of women’s trials, and secondary sources, the author discusses the cases of several women tried for petit treason. The general legal position of married women in eighteenth century England is also examined, and it is argued that the law of petit treason was a logical extension and consistent expression of women’s unequal position in marriage and subordinate status more generally. With the elimination of the aggravated penalty of burning at the stake, and the ultimate repeal of petit treason altogether, married women who killed their husbands achieved a measure of formal equality previously denied them. However, the author argues the significance of petit treason cannot be explained adequately by a trans-historical concept of patriarchy or male dominance. Analysis of both the form of law, and the form of patriarchal relations enforced and reinforced, is identified as of paramount importance.
Download the article from SSRN at the link.

Some New Articles On Hypnosis and Law

A new issue of Notes and Records: The Royal Society Journal of the History of Science is available and includes many interesting articles, including Kaat Wils' From transnational to regional magnetic fevers: The making of a law on hypnotism in late nineteenth-century Belgium and Heather Wolffram's Crime and hypnosis in fin-de-siècle Germany: the Czynski case.


Complete table of contents here.

May 22, 2017

On Otto Penzler

Otto Penzler and the mystery (from Atlas Obscura). The legendary publisher and bookstore owner has transformed how we think and consume this formerly "second class" form of writing.

Biennial Chaucer and the Law Conference June 30-July 1, 2017

The biennial Chaucer and the Law Conference takes place Friday 30th June - Saturday 1st July 2017, Senate House. More here.

May 21, 2017

Stern on Narratives of Criminal Procedure from Doyle to Chandler to Burke @ArsScripta @alafairburke

Simon Stern, University of Toronto Faculty of Law, is publishing Narratives of Criminal Procedure from Doyle to Chandler to Burke in volume 51 of the New England Law Review (2017). Here is the abstract.
Despite the considerable body of work aimed at showing that law is a form of narrative, these efforts have not found many adherents for the view that legal briefs and judicial opinions make better bedtime reading than mystery novels or courtroom dramas. This well-attested preference for fictional narrative suggests that the kind of satisfaction it offers is very different from the pleasures to be had from the genres of professional writing that we associate with forensic advocacy and decision-making. In the latter case, narrative serves the purpose of persuasion. Fiction may also seek to persuade, but more fundamentally it seeks to engage readers in the characters and the events, encouraging a kind of immersion in the story that is hardly necessary, and is rarely attainable, in legal writing. Writers who have been successful in both areas are rare, because they have had to master a variety of skills that are often breezily assumed to be complementary or even cognate, but that turn out to have little in common once we look under the overarching label of “narrative” and try to specify them more concretely. Consider, for example, the roles of dialogue, characterization, and perspective (not to mention the orchestration of events so as to pique the reader’s curiosity, rather than simply to make the details readily comprehensible). The usual forms of legal writing offer no opportunity for cultivating these skills, whereas the novelist can hardly do without them. Alafair Burke is among the few writers who have pursued a truly successful literary career while also producing a significant amount of work in the legal arena. In what follows, I consider the place of the criminal justice system in her most recent novel, The Ex. To provide some context for that discussion, I first show how legal mechanisms for investigating and prosecuting crime have figured in British and American literature over the last three hundred years. Then, I turn to Burke's novel, showing how it uses techniques of literary narrative to conspire with its treatment of doctrinal questions in criminal procedure. Bennett Capers's Re-Reading Alafair Burke's The Ex, also on SSRN, is a contribution to the same NELR Symposium.
Download the article from SSRN at the link.

Jordan on Ida Platt: The First African-American Female Lawyer in Illinois @UISedu

Gwen Jordan, University of Illinois, Springfield, has published ‘A Woman of Strange, Unfathomable Presence’: Ida Platt's Lived Experience of Race, Gender, and Law, 1863-1939. Here is the abstract.
In 1894, Ida Platt became the first African-American woman lawyer in Illinois. She was one of only five black women lawyers in the country and the only one able to maintain a law practice. Throughout her thirty-three year career, Platt served as head of her household, providing for her mother and sisters, without marrying or having children. She accomplished these feats by employing a fluid racial identity, passing as white in her professional life, and by avoiding the dominant gender roles that excluded women from the masculine legal profession. In 1927, at the age of sixty-four, Ida Platt retired, married Walter Burke, a white man, and moved to England. Twelve years later, Ida Burke died. As is the practice in England, there was no race designation on her death certificate. Platt’s choice to employ a fluid racial identity allowed her to pursue her career as a lawyer amidst a racist and sexist society that particularly discriminated against black women. She entered the law when Jim Crow was taking root, race lines were hardening, and elite, white, male lawyers were intensifying their opposition to women’s rise within the profession. Platt’s life and career offer insights into how law and the legal profession responded to the complexities of race and tender a new story of the lived experience of race as it intersects with gender. It suggests that Platt’s pragmatic strategy of changing her racial identity both contested and shaped the ways in which race, gender, and identity were constructed and represented in American society, as it exposed both the rigidity and permeability of these constructions. 

Download the article from SSRN at the link. 

May 20, 2017

Star Trek: Voyager and The West Wing @BadAstronomer

Over at SyFyWire/Bad Astronomy, astronomer Phil Plait alerts us to an easter egg buried in the "Imperfection" episode of Star Trek: Voyager." Specifically, in one scene (at the 30:20 mark), some of The West Wing's characters turn up as "died in the line of duty" crew members. More here.  See also The West Wing Weekly.

May 18, 2017

All the President's Movies @brianlfrye @RBReich

Some law and film recommendations published at Vox. com on the subject of Richard Nixon and Watergate from Robert Reich, Labor Secretary in the Clinton Administration and now Chancellor's Professor of Public Policy at UC Berkeley. 

Included, besides All the President's Men, are the docs Frost/Nixon and Our Nixon (directed by Penny Lane and produced by Ms. Lane and my friend Brian Frye, now a professor of law at the University of Kentucky), and a number of film versions of events during and after the Watergate period.

For availability of these or other films and tv series, check out justwatch.com. 

For books about the period, check out

John W. Dean, Blind Ambition (reprint 2016).

Stanley I. Kutler, The Wars of Watergate (1992).

Bob Woodward and Carl Bernstein, All the President's Men (reprint, 2007).

Brian Frye also recommends Rick Perlstein, Nixonland (reprint, 2009).

Or just type watergate in the Amazon search template. L'embarras du choix.

An Animation of Kafka's Before the Law @openculture

From Open Culture: an animation of Franz Kafka's parable Before the Law (from The Trial).

Death By Arsenic

Kathryn Harkup writes about Chilean arsenic eaters and the plot of Dorothy Sayers's mystery novel Strong Poison here, for the Science section of The Guardian.

May 16, 2017

Schlag on The American Road To Fascism

Pierre Schlag, University of Colorado Law School, has published The American Road to Fascism. Here is the abstract.
The U.S. Presidential election of 2016 occurred amidst a disturbingly reminiscent coalescence of patterns — the economic displacement of the working class, the protracted paralysis of the legislative branch, the apparent indifference and smugness of the governing classes, the perception of widespread corruption, the neutralization of a vital left, and the festering wounds to national pride wrought of multiple lost wars. These patterns are familiar: Together, they comprise (albeit in much more attenuated form) the combustible mix that presaged the rise of National Socialism in 1930’s Germany. Fast forward: a little more than 100 days into his administration, Trump is constructing a political world of alternative facts, casual mendacity, paranoid political conspiracies, free-form attacks on enemies of the people, ethnic vilification, and disdain for democratic and rule of law norms. What is perhaps most disturbing about this (in addition to its effects) is that this was the appeal that won him the Presidency among precisely the classes of people that classically form the core of fascist constituencies in times of economic and cultural displacement and upheaval that we have recently experienced. Trump’s Presidency is thus not only alarming because of what he does, but because of what his election represents. He is a warning albeit one that arrives on the scene in the dire form of permanent crisis. Crisis — because we are at a turning point and permanent--because those who ought to be doing the turning are so far too craven, self-dealing or inept to do so. How did we get here? And are we on the threshold of fascism or some sort of right wing authoritarianism? This piece steps back from the day to day meanderings of journalism to look at the big theoretical picture. The piece addresses the questions by tracing the various forms that constitutional democracy has cumulatively taken in the United States: liberal democratic, administrative and neoliberal. The essay shows how in failing to reckon with their internal contradictions, these various forms of the constitutional democratic state have in some ways prepared the grounds for some sort of right-wing authoritarianism.

Download the article from SSRN at the link. 

Lauriat on Literary and Dramatic Disputes in Shakepeare's Time @KCL_Law

Barbara Lauriat, King's College London, Dickson Poon School of Law, is publishing Literary and Dramatic Disputes in Shakespeare's Time in the Journal of International Dispute Settlement. Here is the abstract.
Disputes over literary works and plays — between one authors and another, one publisher and another, and between authors and publishers — have arisen since the ancient world. This is to be expected, since publishing poems and plays and producing theatrical performances can have significant economic, political, and emotional implications all at the same time. The nature and legal frameworks governing these disputes have changed dramatically over the centuries, however, particularly with regard to the proprietary rights involved. Though modern copyright law did not exist at the time, the Elizabethan age saw a high degree of professionalism of theatrical performance, book publishing, and dramatic authorship. When audiences are clamoring for novel entertainments, authorship is becoming a professional activity, and profits are to be made, customs and traditions inevitably arise — as do violations of those customs and traditions. This article discusses the framework of authorship and publishing in Shakespeare’s time and examines some of the disputes that arose and how they were resolved in a context where the legal remedies were limited. Methods from patronage to private guild “courts” to theft to public denunciation to outright violence were employed in attempts to maintain profitable businesses in publishing and theatre.
Download the article from SSRN at the link.

May 12, 2017

Linton on Hermaphrodite Outlaws: Ambiguous Sex and the Civil Code in Nineteenth-Century France @maksdelmar

Anne E. Linton, Visiting Assistant Professor of French, Boston College, has published Hermaphrodite Outlaws: Ambiguous Sex and the Civil Code in Nineteenth-Century France at 138 Representations 87 (Spring 2017). Here is the abstract.
Hermaphrodism became a zone of frenzied publication in nineteenth-century France, when numerous doctors recommended adding a “neuter sex” or a “doubtful sex” category to the Civil Code alongside those of “male” and “female.” Although attempts to add “doubtful sex” to the code were rarely intended to protect hermaphrodites, the legal silence regarding hermaphrodism actually afforded some doctors and patients the leeway to live in ways others wished could be outlawed.

Va @maksdelmar. 

May 11, 2017

Mälksoo on Sources of International Law in the 19th Century European Tradition: Insights From Practice and Theory @LauriMalksoo

Lauri Mälksoo, University of Tartu, is publishing Sources of International Law in the 19th Century European Tradition: Insights from Practice and Theory in The Oxford Handbook on the Sources of International Law (J. d"Aspremont and S. Besson, eds., Oxford University Press, 2017). Here is the abstract.
How were sources of international law seen at a time before the were 'codified' in the Statute of the Permanent Court of International Justice in 1920? Was there a struggle between positivist and natural law ideas as often postulated in the literature? The article examines both the theory and practice of international law in the late 19th century and discusses how we ended up with the catalogue of sources of international law as we currently have it in Article 38 of the Statute of the ICJ.
Download the essay from SSRN at the link.

Braatz on The Eighth Amendment's Milieu: Penal Reform in the Late Eighteenth Century

Erin Braatz, New York University, is publishing The Eighth Amendment's Milieu: Penal Reform in the Late Eighteenth Century in volume 106 of the Journal of Criminal Law and Criminology (2016). Here is the abstract.
Conflicting interpretations of the history of the “cruel and unusual punishments” clause of the Eighth Amendment play a significant role in seemingly never-ending debates within the Supreme Court over the scope of that Amendment’s application. These competing histories have at their cores some conception of the specific punishments deemed acceptable at the time of the Amendment’s adoption. These narrow accounts fail, however, to seriously engage with the broader history of penal practice and reform in the eighteenth century. This is a critical deficiency as the century leading up to the adoption of the Eighth Amendment was a period in which penal practices underwent numerous changes and reforms. This Article closely examines the experiments in penal reform that occurred in the American colonies immediately following the Revolution to elucidate what the Founding Generation thought about penal form, how and why it might change, and its relationship to the creation of the American republic. It argues that these penal reform movements, which have been ignored in discussions of the Eighth Amendment, were well known during the founding era. Furthermore, the salience of these reform movements at the time demonstrates a persistent concern among the Founders with adopting a more enlightened or civilized penal code in order to distinguish the American republic from monarchical practices in England and Europe. Foregrounding the content of both the experiments themselves and the debates over penal practice, they reflect yields important and previously unrecognized insights for our understanding of the Eighth Amendment’s meaning and its import at the time it was drafted. This Article helps illuminate current debates over the interpretation and application of the Eighth Amendment, including the use of international comparisons, the idea of evolution or progress, and the concept of proportionality. It also exposes significant gaps and limitations in the historical accounts relied upon by the Court to date.
Download the article from SSRN at the link.

Kaye on Why Pornography Is Not Prostitution @tjsl

Anders Kaye, Thomas Jefferson School of Law, has published Why Pornography is Not Prostitution: Folk Theories of Sexuality in the Law of Vice at 60 St. Louis Law Journal 243 (2016). Here is the abstract.
This Article dissects an anomaly in the law regarding pornography and prostitution: under that law, people who have sex with other people for money are normally guilty of prostitution, but not when they are acting in pornography. Since the prostitute and the pornographic actor both engage in the same physical activities and both do so for money, it is natural to wonder why the prostitute is guilty of a crime, but the pornographic actor (normally) is not. In recent years, commentators and courts have offered a jumbled potpourri of rationales and justifications for this anomaly, most of which are either analytically inadequate or implausible in light of present social attitudes. Skeptical that there is a plausible justification for this anomaly, this Article instead offers an explanation – an account that helps us understand why the law makes this anomalous distinction between prostitution and pornographic acting even if the distinction cannot be justified. The explanation points to folk theories about sex – unrefined stories and narratives about sex that persist in and pervade our popular culture. On this folk-theory explanation, the divergence at issue springs from the interplay between a cultural commitment to sating ostensibly voracious male sexual desire and a cultural anxiety about the ways that direct sexual involvement with the female may corrupt or contaminate the male, not just physically, but morally and socially. From the perspective of these folk theories, prostitution and pornography both have the virtue that they sate male desire, but prostitution, involving direct sexual involvement with the female, threatens to taint or corrupt the male consumer (physically, morally, and socially) in a way that pornography does not. Pornography, then, strikes a more “favorable” balance between sating male desire and protecting men from potential corruption than prostitution does. As a result, it is privileged over prostitution in the law. Of course, this cultural mythology about sex does not supply a defensible justification for the state of the law. On the contrary, these folk theories seem almost childishly superstitious, and they resonate with atavistic and ugly ideologies about gender and sex. Nevertheless, this folk-theory account should help explain why the criminalization of prostitution persists so stubbornly today, despite the increasingly pervasive acceptance of feminist, libertarian, and sex-positive insights that might lead to decriminalization, and why the law treats prostitution differently than it treats pornographic acting. In this sense, the explanation offered here does not so much harmonize the law as diagnose in it a persisting pathology. Diagnosing this pathology in the law of prostitution and pornography should, in turn, cast new light on broader issues in the law of vice.
Download the article from SSRN at the link.

The Origins of Twin Peaks

In this article for the Washington Post, David Bushman and Mark Givens track the origins of the cult tv classic Twin Peaks to an unsolved 1908 murder.  Hazel Drew's brutal death turned into the centerpiece of the weird, and weirdly attractive, series. Now it returns to prime time. 

More about Twin Peaks in the works below.

Full of Secrets: Critical Approaches To Twin Peaks (Dennis Lavery, ed., Wayne State University Press, 1995).

Lenora Ledwon, "Twin Peaks" and the Television Gothic, 21 Literature/Film Quarterly 260 (1993).

Dennis Lim, Too Weird For Prime Time

Linda Ruth Williams, Twin Peaks: David Lynch and the Serial Killer Soap, in The Contemporary Television Series 37 (Michael Hammond and Lucy Mazdon, eds., Edinburgh University Press, 2005).


Solum on The Fixation Thesis: The Role of Historical Fact in Original Meaning @lsolum

Lawrence B. Solum, Georgetown University Law Center, has published The Fixation Thesis: The Role of Historical Fact in Original Meaning at 91 Notre Dame Law Review 1 (2015). Here is the abstract.
The central debate in contemporary constitutional theory is the clash between originalists and living constitutionalists. Originalism is the view that the original meaning of the constitutional text should constrain or bind constitutional practice — paradigmatically, the decision of constitutional cases by the United States Supreme Court. Living constitutionalists contend that the content of constitutional law should evolve over time in response to changing values and circumstances. One of the central questions in this debate is over the question whether the meaning of the constitutional text is fixed or changeable. This essay makes the case for the Fixation Thesis — the claim that the linguistic meaning (or communicative content) of the constitutional text was fixed when each provision was framed and ratified. Although the Fixation Thesis is a basic assumption of almost every version of originalism or textualism, it has never been the explicit focus of an extended examination and defense. This essay remedies that lacuna by providing a precise formulation of the fixation thesis, making the affirmative case for fixation, and answering potential objections. The most important claim made by the essay is that the Fixation Thesis is entailed by our common sense understanding of how communication works. Communicative content is created by using conventional semantic meanings (fixed by linguistic practices at the time words are used) and context (which is fixed by the understanding of author and reader at the time a writing is created). The essay proceeds in five steps. Part One clarifies the Fixation Thesis by situating it in the content of contemporary debates about originalism. Part Two states the affirmative case for the fixation thesis and articulates several versions of the argument corresponding to different members of the originalist family of constitutional theories. Part Three provides additional clarification and answers objections. Part Four examines rival theories of constitutional meaning that deny fixation. Part Five explores two examples, “cruel and unusual punishment” and “privileges or immunities of citizens of the United States.” This is the final published version of the "The Fixation Thesis" and it replaces the earlier versions previously available at this location.
Download the article from SSRN at the link.

May 10, 2017

A List of Crime Novels To Enjoy--Which Ones Would You Put On a List of Best of the Year?

A list of best crime novels of 2017, from The Booklist Reader. (via @DSimpsonAuthor)
Included are works such as Carl Hiassen's Razon Girl (2016) and Arturo Perez-Reverte's What We Become (2016).

Which ones are your nominees for Best of the Year?

Narration as Argument: A New Book From Springer Publishing @springerpub

Newly published: Narration as Argument (Paula Olmos, ed., Springer, 2017).
This book presents reflections on the relationship between narratives and argumentative discourse. It focuses on their functional and structural similarities or dissimilarities, and offers diverse perspectives and conceptual tools for analyzing the narratives’ potential power for justification, explanation and persuasion. Divided into two sections, the first Part, under the title “Narratives as Sources of Knowledge and Argument”, includes five chapters addressing rather general, theoretical and characteristically philosophical issues related to the argumentative analysis and understanding of narratives. We may perceive here how scholars in Argumentation Theory have recently approached certain topics that have a close connection with mainstream discussions in epistemology and the cognitive sciences about the justificatory potential of narratives. The second Part, entitled “Argumentative Narratives in Context”, brings us six more chapters that concentrate on either particular functions played by argumentatively-oriented narratives or particular practices that may benefit from the use of special kinds of narratives. Here the focus is either on the detailed analysis of contextualized examples of narratives with argumentative qualities or on the careful understanding of the particular demands of certain well-defined situated activities, as diverse as scientific theorizing or war policing, that may be satisfied by certain uses of narrative discourse.
Link to the Table of Contents.

ABA Announces Winners of 2017 Silver Gavel Awards @ABAJournal @ABAEsq



The American Bar Association today announced its selections for the 2017 Silver Gavel Awards for Media and the Arts, which recognize outstanding work 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. 
Work focusing on eviction, the militarization of policing, understanding landmark U.S. Supreme Court decisions, and challenges in federal courts to state laws regulating abortion providers took top honors.
The winners are:
  • “Evicted: Poverty and Profit in the American City, in which author Matthew Desmond tells the story of eight Milwaukee families to show that eviction is a cause, not just a condition, of poverty and argues that decent, affordable housing should be a basic right for all Americans.
  • “Do Not Resist,” a documentary exploring the present and future of law enforcement in the United States, from Ferguson, Mo.,  after the death of Michael Brown to the “militarization” of police forces to the impact of new technologies. 
  • “More Perfect, a 5-episode radio podcast series examining landmark cases from Marbury v. Madison to Batson v. Kentucky to illuminate how the Supreme Court shapes American democracy.
  • “Trapped,” a television documentary that probes the impact of state TRAP (Targeted Regulations of Abortion Providers) statutes on reproductive health clinic workers and relates how they and their lawyers challenged these laws in federal court (Whole Woman’s Health V. Hellerstedt).
ABA President Linda Klein will present Silver Gavels and honorable mentions on July 18 at the National Press Club in Washington, D.C. Brooke Gladstone, managing editor and co-host of public radio’s “On the Media” is the featured speaker
The ABA will present four Silver Gavels and two honorable mentions from 156 entries received in all eligible categories — include books, commentary, documentaries, drama and literature, magazines, multimedia, newspapers, radio and television.
No more than one Silver Gavel is presented in each category.
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 American Bar Association engages in a rigorous judging process annually to select winners of the Silver Gavel Awards for Media and the Arts,” said Stephen C. Edds, chair of the ABA Standing Committee on Gavel Awards. “We congratulate all of the 2017 awardees for their extraordinary efforts to further the American public’s understanding of law.”
The association has presented these awards each year since 1958, which makes 2017 the 60th annual presentation. The 18-member ABA Standing Committee on Gavel Awards makes the final award decisions. To learn more about the Silver Gavel Awards, go to www.ambar.org/gavelawards.
The following is a complete list of Silver Gavel winners and honorable mentions with a link to their work:
BOOKS
Silver Gavel

“Evicted: Poverty and Profit in the American City”
Matthew Desmond, author
Penguin Random House/Crown Publishers
http://www.penguinrandomhouse.com/books/247816/evicted-by-matthew-desmond/9780553447453/

Honorable Mention
“Blood in the Water: The Attica Prison Uprising of 1971 and Its Legacy”
Heather Ann Thompson, author
Penguin Random House/Pantheon Books
http://www.penguinrandomhouse.com/books/178182/blood-in-the-water-by-heather-ann-thompson/9780375423222/

DOCUMENTARIES
Silver Gavel

“Do Not Resist”
VANISH Films
Craig Atkinson, director
Laura Hartrick, producer
http://www.donotresistfilm.com/

NEWSPAPERS
Honorable Mention

“Forsaken: Florida's Broken Mental Health System”
Sun Sentinel (Ft. Lauderdale, FL)
Dana Banker, managing editor
Megan O’Matz, Sally Kestin, and Stephen Hobbs, reporters
John Maines, database editor
http://projects.sun-sentinel.com/projects/forsaken/

RADIO
Silver Gavel

“More Perfect”
WNYC Studios
Jad Abumrad, executive producer, host, creator
Suzie Lechtenberg, executive producer
Kelsey Padgett, producer, reporter
Sean Rameswaram, correspondent
Tobin Low, producer
http://www.wnyc.org/shows/radiolabmoreperfect/episodes

TELEVISION
Silver Gavel

“Trapped”
Trilogy Films
Dawn Porter, director
Marilyn Ness, producer
http://www.trappeddocumentary.com/


With nearly 400,000 members, the American Bar Association is one of the largest voluntary professional membership organizations in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law. View our privacy statement online. Follow the latest ABA news at www.americanbar.org/news and on Twitter @ABANews

Additional links: American Bar Association Announces 2017 Silver Gavel Awards For Media and the Arts

ABA Announces Winnters of the 2017 Silver Gavel Awards

Pike on the Abbott and Costello Routine: "Who's On First" and Copyright Law @NorthwesternLaw

George M. Pike, Northwestern University School of Law, has published Legal Issues: Abbott and Costello Explain Copyright Law. Here is the abstract.
But history and modern pop culture know Abbott and Costello for one thing: “Who’s on First”, the “patter” routine involving the nicknames of the members of a baseball team, The routine’s fame has caused it to be, “reprised, updated, alluded to and parodied innumerable times over the years.” Through 2015 and 2016 the routine was at the center of a copyright dispute over its use in the Broadway play, Hand to God. The dark comedy/drama involves a fundamentalist church’s “puppet club”, where young people use sock puppets to act out Biblical and religious stories. The playwright and producer used an abbreviated but recognizable version of the routine and did not obtain a license or permission to use it. The heirs and successors of Abbott and Costello sued for copyright infringement. In 2015, a trial court found the use of the routine to be a “Fair Use” under Title 17, Section 107 of the Copyright Act. In October, 2016, a Federal appeals court reversed the decision, determining that the use had not been a fair use. The Court’s opinion in the case of TCA Television Corp v. McCollum is being seen by some commentators as clarifying one copyright law’s more complicated issues, the Fair Use Doctrine’s concept of “transformative use”.
Download the article from SSRN at the link.

May 9, 2017

Gordon on The Propaganda Prosecutions at Nuremberg: The Origins of Atrocity Speech Law and the Touchstone for Normative Evolution

Gregory S. Gordon, The Chinese University of Hong Kong, Faculty of Law, is publishing The Propaganda Prosecutions at Nuremberg: The Origin of Atrocity Speech Law and the Touchstone for Normative Evolution is volume 39 of the Loyola of Los Angeles International and Comparative Law Review (2017). Here is the abstract.
The black and white image of a two-tiered bench seating the cream of surviving Nazi leadership, framed by white-helmeted Allied sentries and dark-wood paneling, is by now the definitive meme for the birth of international criminal law (ICL). Less associated with that grainy photograph, though, is the origin of an important sub-branch of ICL – one that I call “atrocity speech law.” For among the defendants in that iconic Nuremberg dock were Julius Streicher, editor-in-chief of the rabidly anti-Semitic tabloid Der Stürmer, and Hans Frtizsche, head of the Radio Division of Joseph Goebbels’s Propaganda Ministry. Nearly two years later, the Third Reich’s Press Chief, Otto Dietrich, assumed his place on the same set of pews as part of the Ministries trial of the so-called “subsequent Nuremberg proceedings.” From the judgments rendered in respect of these three defendants, Allied judges formulated a set of nascent but influential principles regulating the relationship between hate speech and large-scale human rights violations. This article, an invited submission for a special symposium issue on the Nuremberg trials, revisits those cases, which centered on persecution as a crime against humanity. In doing so, the article provides an overview of Nazi Holocaust propaganda, the rhetorical template for the modern mass-murder campaign. Within this historical context, it traces the development of atrocity speech law in the decades since, paying particular attention to the normative wellsprings of incitement to genocide at the International Criminal Tribunal for Rwanda (ICTR). And its analysis regarding persecution’s subsequent development provides an indispensable point of repair for understanding the jurisprudential split between the ICTR (concluding that hate speech on its own can satisfy persecution’s conduct element) and the International Criminal Tribunal for the former Yugoslavia (ICTY) (reaching the opposite conclusion). As the article points out, on balance, the Nuremberg jurisprudence favors the ICTR approach. With important contemporary cases before domestic courts, the ICTY and the International Criminal Court, the Nuremberg propaganda judgments will continue to function as important doctrinal touchstones going forward. This article, which develops and expands on the Nazi propaganda sections featured in my recently-released Oxford University Press book, “Atrocity Speech Law: Foundation, Fragmentation, Fruition,” permits readers to see the Nuremberg judgments in a new light and understand their likely normative impact on international hate speech law for generations to come.
Download the article from SSRN at the link.

Stream Call For Papers, Dissents and Dispositions, Law, Literature, and Humanities Association of Australasia, Melbourne, December 12-14, 2017

From the mailbox:

Stream Call for Papers: Public Art, Public Law?At: "Dissents and Dispositions"
Law, Literature and Humanities Association of Australasia, Melbourne, 12-14 December 2017
Part of the urban streetscape, public art in its various guises can often be simply
walked past and overlooked; as Robert Musil declares, ‘there is nothing in this
world as invisible as a monument’. This stream intends to draw scholarly
attention back on to the aesthetic and legal dimensions of public art – the
installations and placed material objects – which are designed to carry the
stories of a city.
We invite contributions in the spirit of cross-disciplinary humanities and legal
research to open up a dialogue exploring how the ‘public’ nature of art expresses,
represses, subverts or simply ignores the ‘public’ nature of law. We are
interested in whether public art in its various guises can be a method of dissent
(or assent) enabling legal relations in a city to take a material form. Also relevant
is the way public art can shape the disposition of the viewer, as well as its site in
urban space – its character, its ethos – and whether that can shift over time.
We welcome scholars to explore these questions and many others from diverse
disciplines such as public art, jurisprudence, art history, visual cultures, history,
Indigenous studies, geography, memory studies, cultural studies, architecture,
criminology and any other interested areas.
Please submit panels or individual proposals or expressions of other ideas by 30
June 2017 (noting your interest in the "Public Art Public Law?" Stream) to the
general conference submission email address: llhaaconference@gmail.com
Proposals should consist of a short abstract (max. 250 words) and a short author
bio.
Any queries, please contact the stream organisers:
Olivia Barr: olivia.barr@unimelb.edu.auLaura Petersen: l.petersen@student.unimelb.edu.au 
More about the conference in its entirety here. 




Call For Papers: Dissents and Dispositions: Law, Literature, and Humanities Association of Australasia, Melbourne, December 12-14, 2017

From the mailbox:

Call for Papers: Dissents and Dispositions
Law, Literature and Humanities Association of Australasia, Melbourne, 12-14 December 2017 The Conference of Law, Literature and Humanities Association of Australasia invites consideration of the arrangements and rearrangements of the conduct of law and life:
·         Dissents of conduct and form; resistance and transformation; public arts and image; ecologies and place; politics and law
·         Dispositions of judgment and character; jurisprudence and literature; law and language; of enabling and disabling; of writing and place
·         Plenary Speakers: Tony Birch (VU), Marianne Constable (UC Berkeley), Karen Crawley (Griffith), Suzanne Ost (Lancaster), Nikos Papastergiadis (Melbourne)
 Venues: La Trobe Law School and Melbourne Law School
           Dates: 12-14 December 2017 (Postgraduate Day on 11 December 2017)
 Deadline for abstract and panel proposals: 30 June 2017
 Queries and proposals to llhaaconference@gmail.com
 Conference website: http://lawlithum.org/conferences/




Reminder: CFP for Law and Culture Conference, 2017: September 7-8--Closes May 14, 2017 @ThomGiddens

From Thom Giddens:  Reminder:

Law and Culture Conference 20177th to 8th September 2017
 Call for papers
What does it mean to break the world? What is legitimate resistance to state power? When does authority spill over into repression? What happens when a sovereign loses control? What is an anarchic act? Is anarchic thought possible? What is anarchy's relationship to chaos and disorder? What is its relationship to order and regulation? How are such concepts represented—if they can be—in legal, social, political, moral, and critical philosophies?Can anarchy be a duty?
The Law and Culture Conference 2017 aims to stimulate a topical discussion that crosses disciplinary, geographic, academic, and conceptual boundaries (inter alia), on the significance of anarchy in relation to law, culture, and theory.
Here are some indicative themes; do not let them limit you:
Anarchies of the State
  • Power, power structures, authority, authoritarianism, (il)legitimate authority; despotism, barbarism, war, propaganda, totalitarianism; ideologies of anarchism, or the de-centralisation or the minimal State
  • States of disorder and/or disorganization; lawlessness and misrule; the state of nature
  • Statelessness, refugee crises, anti-statism; international regulation and governance; permeable boundaries; the internet, digital media, information exchange
Anarchies of the Subject
  • Absolute freedom of the individual; social breakdown, lack and/or failure of accountability; leaderless-ness, alienation, self-determination, individual responsibility
  • Grassroots; voluntary association; social regulation; self-governing societies; modes of non-recognition or rejection of authority; resisting oppression; vulnerability
  • Revolution, sabotage, assassination, riot, mutiny, protest, rebellion, direct action, self-empowerment; intersections between legal, moral, and political obligation
  • Aggression, violence, self-defence, non-violence/pacifism
Anarchies of Thought
  • Nihilism, chaos, anti-structuralism; post-fact, post-reality, post-truth; liberalism, democracy, Trumpism/Brexit; the death of left-right politics, the rise of nationalism
  • Coercion, compulsion, reasons, normativity, resistance, practical reason (including both individual and collective/social methodologies of decision-making)
  • Hierarchy (including intersectional hierarchies such as the state, religion, monarchy, patriarchy, economy, sex, race, sexual orientation), and anti-hierarchical philosophies
  • The art and literature of anarchy, punk culture, alternative, radical cultures, art as/and anarchic knowledge
Submission information
  • We welcome proposals for traditional papers and panels, as well as more anarchic suggestions: performances, experimentations, artistries, sense-events, inter alia, et cetera, in anarchia
  • Paper proposals: 250 word abstract and a 50 word biography (by default papers will be 20 minutes in length, with additional time for questions).
  • Panel proposals: 150 panel abstract (including indicative timings; default is 90 minutes), 250 word abstracts for individual papers, and a 50 word biography for each presenter.
  • Proposals for alternative formats, or anarchic sessions: 250 word abstract (including indicative timings) and a 50 word biography for each participant
About the Centre for Law and CultureThe Centre for Law and Culture is an interdisciplinary hub for research at the intersections of law, justice, and the humanities, engaging legal study that spans topics and themes from across critical and cultural legal studies and thereby incubating and promoting the crossing and challenging of legal boundaries. More information: http://www.stmarys.ac.uk/law-and-culture/
Location: St. Marys University, Twickenham, London TW1 4SX (http://www.stmarys.ac.uk/contact/location-maps.htm).
Please contact: Dr Thom Giddens thomas.giddens@stmarys.ac.uk Dr Judith Bourne judith.bourne@stmarys.ac.uk
Registration:There is an anticipated £100 registration fee (plus booking), which will cover both days and include dinner. Cheaper packages will be available, e.g. for single-day attendance.  Dr Thomas GiddensSenior Lecturer in LawCo-Director Centre for Law and Culture St Mary’s UniversityTwickenham, London TW1 4SX 

May 8, 2017

Brophy on The Jurisprudence of Slavery, Freedom, and Union at Washington College, 1831-1861

Alfred L. Brophy, University of North Carolina, Chapel Hill, School of Law, has published The Jurisprudence of Slavery, Freedom, and Union at Washington College, 1831-1861. Here is the abstract.
In the thirty years leading into Civil War faculty and students at Washington College and the Virginia Military Institute discussed ideas about adherence to Union, the legal justification of slavery, slaves’ claims to freedom, and jurisprudence. Their discussion of jurisprudence included the need for adherence to law, and the roles of morality, sentiment, and utility in law. This article draws upon public addresses, like graduation speeches, at Washington College and VMI, to recover the sophisticated legal ideas in circulation in Lexington. Washington College was a place of Whig values of Union, adherence to law, and concern for utility. Speakers supported common Whig ideas, including the need for republican government to check excesses of democracy and a focus on the ways that a well-ordered society and respect for property and Christianity led to moral and economic progress. It also moved from a place where faculty held Enlightenment ideas about freedom – even if circumscribed by economic reality – to a place where slavery was embraced, partly because it was part of the Constitution. By contrast, at the Virginia Military Institute, pro-slavery and pro-secession ideas were more prevalent. The constitutional visions at moderate Washington College and pro-secession institutions at more radical places, like the University of Virginia, William and Mary, and the College of Charleston, reflected the wide range of Southern ideas about Union, slavery, utility, sentiment, Republicanism, and constitutionalism. Those ideas framed the Southern response to political changes, as Southerners discussed the mandates of jurisprudence and the Constitution in the years leading into War.
Download the article from SSRN at the link.

A Panel Discussion on Espionage In Life and Art

David Grann moderates a 2013 New Yorker Festival panel on real world espionage and fictional spying. Participants include former C.I.A. agent Tony Mendez, inspiration for the film Argo, Jeff Moss, who founded Def Con, the hacker conference, and Joe Weisberg, a former C.I.A. operative who uses his experience to inform his creation, the FX TV show The Americans.

David Grann is the author of the new book Killers of the Flower Moon: The Osage Murders and the Birth of the FBI, as well as prior books The Lost City of Z and The Devil & Sherlock Holmes.

More about the New Yorker Festival 2013 here;  here's information about the 2017 festival.

Spoo on Informal Publishing Norms and the Copyright Vacuum in Nineteenth-Century America @TULaw

Robert E. Spoo, University of Tulsa College of Law, has published Courtesy Paratexts: Informal Publishing Norms and the Copyright Vacuum in Nineteenth-Century America at 69 Stanford Law Review 637 (2017). Here is the abstract.
In response to the failure of U.S. copyright law to protect foreign authors, nineteenth-century American publishers evolved an informal practice called the “courtesy of the trade” as a way to mitigate the public goods problem posed by a large and ever-growing commons of foreign works. Trade courtesy was a shared strategy for regulating potentially destructive competition for these free resources, an informal arrangement among publishers to recognize each other’s wholly synthetic exclusive rights in otherwise unprotected writings and to pay foreign authors legally uncompelled remuneration for the resulting American editions. Courtesy was, in effect, a makeshift copyright regime grounded on unashamed trade collusion and community-based norms. This Article examines a particular feature of this informal system: the courtesy paratext. Typically appearing in the form of letters or statements by foreign authors, courtesy paratexts prefaced numerous American editions of foreign works published from the 1850s to the 1890s. These paratexts — supplements to the text proper — played a prohibitory role (not unlike the standard copyright notice) and also extolled the regulating and remunerating virtues of the courtesy system. Authorial paratexts continued to accompany texts well into the twentieth century — including, notably, American editions of James Joyce’s and J.R.R. Tolkien’s works — and enable us to observe the principles of courtesy as they operated less overtly to govern American publishers’ treatment of unprotected foreign works. A little-examined source for understanding the history of copyright law and informal publishing norms, courtesy paratexts offer insight into a form of private ordering that rendered the American public domain a paying commons.
Download the article from SSRN at the link.

Frankel on Vulnerable Populations, Social Investigations, and Epistemic Justice in Early Victorian Britain @NSSRNews

Oz Frankel, New School for Social Research, is publishing Vulnerable Populations, Social Investigations, and Epistemic Justice in Early Victorian Britain in volume 7 of Oñati Socio-Legal Series (2017). Here is the abstract (English and Spanish).
English Abstract: Conducted by royal commissions, select committees and the newly established inspectorates, early Victorian social investigations elaborated formats and procedures of public inquiry that left an enduring impact on modern, liberal public spheres in the English speaking world and beyond. This article revisits a few features of 19th Century official investigations, highlighting the rather diverse and contradictory effects these fact-seeking ventures had on British democratic culture. I argue that even as government inquiries confirmed and strengthen social gradations as well as hierarchies of knowledge and expertise, they nevertheless allowed the British lower classes to participate in official discourse as knowers, not just sufferers, and opened new possibilities for dissent and contestations. I highlight the manner in which the investigation itself rather than any consequent legislation or policy touched upon the administration of justice either by emulating court procedures or in terms of its epistemic labor.

Spanish Abstract: Las investigaciones sociales de principio de la época victoriana dirigidas por comisiones reales, comités selectos y las inspecciones que se estaban creando entonces, elaboraron formatos y procedimientos de investigación pública que dejaron un impacto duradero en las esferas públicas modernas y liberales tanto en el mundo angloparlante como fuera de él. Este artículo revisa algunas características de las investigaciones oficiales del siglo XIX, resaltando los efectos diversos y contradictorios que estas iniciativas de búsqueda de hechos tuvieron en la cultura democrática británica. Se defiende que, a pesar de que las investigaciones gubernamentales confirmaron y reforzaron las escalas sociales y las jerarquías de conocimiento y experiencia, permitieron que las clases bajas británicas participaran en el discurso oficial como conocedores y no sólo víctimas, y abrieron nuevas posibilidades de disensión y lucha. Se destaca la forma en la que las propias investigaciones, más que cualquier legislación o política consiguiente, mencionaron de pasada la administración de justicia, emulando procedimientos judiciales o en su trabajo epistémico.
Download the article from SSRN at the link.

Klerman on Quantitative Legal History @USCGouldLaw

Daniel M. Klerman, USC Gould School of Law, is publishing Quantitative Legal History in the Oxford Handbook of Historical Legal Research (Oxford, forthcoming). Here is the abstract.
Legal historians seldom use statistics, but this is a missed opportunity. Quantitative methods are particularly helpful in understand core legal history issues, including the effect of legal change and the influence of multiple factors on legislation, judicial decisionmaking, and citizen behavior. Recent work by Gavin Wright, Paul Mahoney, and Michele Landis Dauber shows how tables, graphs, and regression analysis can be woven into persuasive historical narrative and analysis. Collaboration between legal historians and quantitative social scientists also provides an untapped avenue to enrich the field.

Download the essay from SSRN at the link. 

A New Book From Hart Publishing: Anthony Arlidge: The Lawyers Who Made America @hartpublishing

Newly published:

Anthony Arlidge, The Lawyers Who Made America (Hart Publishing, 2017). 


No other nation's creation, both politically and socially, owes such a debt to lawyers as the United States of America. This book traces the story of that creation through the human lives of those who played important parts in it: amongst others, of English lawyers who established the form of the original colonies; of the Founding Fathers, who declared independence and created a Constitution; of Abraham Lincoln, Woodrow Wilson, Justices of the Supreme Court and finally Barack Obama. Even Richard Nixon features, if only as a reminder that even the President is subject to the law. The author combines his wide legal experience and engaging writing style to produce a book that will enthral lawyers and laymen alike, giving perhaps a timely reminder of the importance of the rule of law to American democracy.




Stern on The Literary Analysis of Law @ArsScripta @OxUniPress

Simon Stern, University of Toronto Faculty of Law, is publishing Literary Analysis of Law in The Oxford Handbook of Historical Legal Research (Markus D. Dubber and Christopher Tomlins, eds., Oxford, --). Here is the abstract.
Legal historians often turn to literary examples to show how doctrines, practices, or institutions were perceived at a certain a time. Imaginative works sometimes serve as representative illustrations of legal phenomena, sometimes as alternatives to dominant legal ideas or assumptions (voicing dissent or presenting figures and perspectives that escape the law’s comprehension), sometimes as evidence for the dissemination of legal thought or folk wisdom about the law, and sometimes as a kind of parallel formation that uses, or reflects on, legal methods and modes of explanation, even if the work does not expressly address legal issues. This chapter focuses primarily on the last two approaches, by way of two case studies. The first case study uses text-mining to show how earlier versions of the Miranda warning appeared in nineteenth- and early twentieth-century fiction, and to ask what we may infer about how these writers understood the warning's purpose and effect. In the second case study, I consider how Oscar Wilde’s novel The Picture of Dorian Gray (1890/91) reflects on contemporaneous obscenity law. The aim in this section is to show how literary interpretation can inform legal historical inquiry by taking us beyond what the text depicts, focusing attention instead on how the text operates. This kind of inquiry can bring out connections between law and literature that we would miss, if we attended only to what the text explicitly says or describes. The chapter ends with a short bibliography of recent scholarship on law and literature that focuses specifically on the historical dimensions of the inquiry.
Download the essay from SSRN at the link.