July 23, 2014

A Comic Book Nice Guy Dies Saving A Friend: Life, Death, and Archie Andrews

Archie Andrews, the lovable character familiar to many from the "Archie" comics, meets his end in today's installment of Life With Archie, when he saves the life of his friend Kevin Keller. Kevin is a veteran opposed to gun violence who is targeted by a stalker; Archie intervenes, and dies as a result. More here in an article by Derrik J. Lang.

More coverage here from the Long Beach Press-Telegram, an opinion piece here from Ana Veciana Suarez of the Miami Herald.

Preliminary CFP for the Law, Literature, and the Humanities Association of Australasia December 2015 Conference

Preliminary call for papers for the December 9-12 2015 conference on "Complicity" at the University of Technology Sydney Law School, sponsored by the Law, Literature, and the Humanities Association of Australasia.

Organizers will post a full CFP later in the year.

Asssessing Law and Religion Scholarship Over the Past Quarter Century

Marie A. Failinger, Hamline University School of Law, has published Twenty-Five Years of Law and Religion Scholarship: Some Reflections at 30 Touro Law Review 9 (2014). Here is the abstract.

In this address, the author describes some of the significant movements in law and religion scholarship over the past twenty-five years, including the dialogue between traditional church-state and international human rights scholars and outside scholars, including those writing from within American minority faith traditions.
Download the article from SSRN at the link. 

Women's Inheritance Rights In the Early Republic

Jeffrey K. Sawyer, University of Baltimore, School of Law, has published Women, Law, and the Pursuit of Happiness in Early Harford County, as Harford Historical Bulletin, Number 81, at p. 3. Here is the abstract.

Martha Griffith filed suit in 1794 against the executors of her late husband's estate. His will had left her a large, waterfront plantation on Swan Creek for the remainder of her life, but she wanted more. The suit demanded a large share of the family's working capital, specifically, livestock, supplies, farm equipment, and the slave labor force that made plantations prosperous in those times. The people and property involved in this case were for the most part members of a closely knit Harford County community, but the legal battle and its outcome had some larger implications.
The decision in Griffith v. Griffith's Executors, rendered by the General Court and affirmed by the Court of Appeals, constitutes a significant piece of the legal history of early America. First, it re-established the undisputed rights of Maryland widows to a share of both the real and personal property of their deceased husbands. Second, it forced leading judges and lawyers in Maryland to undertake a deep historical and logical analysis of the authority of British legal precedents. What law would apply in cases where post-Revolutionary Maryland legislation was unclear? Third, the judgment silently affirmed that slaves in Maryland fell under the regime of personal property with respect to inheritance.
The events surrounding the suit are particularly revealing of how law in action affected women with respect to inheritance and property. Despite many inequalities that affected women under the old common law in early Maryland, women had a dear legal right to own property and to use the courts of law to secure their rights, A widow's right to a reasonable share of her husband's property extended back into Anglo-Saxon times, and was one of the guarantees written into the Magna Carta. "Dower" is the old common law name for a widow's share. Customarily dower consisted of the use of and profit from one third of the deceased husband's real estate for the widow's lifetime, and one third of his personal estate after his debts were paid, But dower could also be fixed by a formal agreement.

Download the article from SSRN at the link. 

What We Talk About When We Talk About Poverty: Racialized Metaphors and Anti-Poverty Programs

Ann Cammett, CUNY School of Law, has published Deadbeat Dads & Welfare Queens: How Metaphor Shapes Poverty Law at 34 Boston College Journal of Law and Social Justice 233 (2014). Here is the abstract.
Since the 1960s, racialized metaphors describing dysfunctional parents have been deployed by conservative policymakers to shape the way that the public views anti-poverty programs. The merging of race and welfare has eroded support for a robust social safety net, despite growing poverty and economic inequality throughout the land. This Article begins by describing the influence that metaphors have on the way people unconsciously perceive reality. It proceeds by examining historical racial tropes for Black families and how they were repurposed to create the Welfare Queen and Deadbeat Dad, the metaphorical villains of welfare programs. It also tracks the demise of welfare entitlements and the simultaneous ascendency of punitive child support enforcement intended to penalize both “absent” parents and families with non-normative structures. Ultimately, this Article argues that the focus on demonizing Black parents in the welfare system has created an obstacle to providing necessary resources to alleviate the suffering of a growing number of poor children of all races, the intended beneficiaries of public assistance.
Download the article from SSRN at the link. 

Rhetoric and Visualization In Brief Writing

Michael D. Murray, Valparaiso University Law School,  has published Visual Rhetoric and Storytelling in Five Sections of a Brief. Here is the abstract.

The rhetoric of visualization is critical to client-centered legal practice. Visualization through storytelling connects all subject areas in the law and extends far beyond the law to disciplines as varied as cognitive studies, brain science, and rhetoric and persuasion. Visual rhetoric is a growing topic of discussion and scholarship in the legal writing academy, as scholars and practitioners explore the potential of images as cognitive, communicative, and persuasive devices. Lawyers use stories and visual images and structures as framing devices, organizational schema, and persuasive rhetorical methods to communicate the context and meaning of a client’s situation and to improve the communication, reception, and understanding of legal argument with a given audience. Most legal writing and advocacy study has focused on the facts section for narrativity and storytelling, while visual rhetoric has focused on the argument section. This presentation will examine the use of client-centered narrative reasoning and visual rhetoric in five sections of trial level and appellate legal briefs: questions presented; introduction or summary of the argument; statement of facts or statement of the case; explanation sections of the argument; and application sections of the argument.
Download the paper from SSRN at the link. 

July 22, 2014

Mill and Porn

Clare McGlynn, Durham Law School, and Ian Ward, University of Newcastle upon Tyne, are publishing Would John Stuart Mill Have Regulated Pornography? in the Journal of Law and Society (2014). Here is the abstract.

John Stuart Mill dominates contemporary pornography debates where he is routinely invoked as an authoritative defence against regulation. This article, by contrast, argues that a broader understanding of Mill’s ethical liberalism, his utilitarianism and his feminism casts doubt over such an assumption. New insights into Mill’s thinking on sex, sexual activity and on the regulation of prostitution, reveal an altogether more nuanced and activist approach. In this light, we argue that John Stuart Mill would almost certainly have recommended the regulation of some forms of pornography.
Download the article from SSRN at the link. 

July 21, 2014

Call For Papers: Asia-Pacific Journal on Human Rights and the Law

From Marco Wan, Associate Professor of Law, University of Hong Kong, comes this call for papers for the Asia-Pacific Journal on Human Rights and the Law.

Asia-Pacific Journal on Human Rights and the Law


Call for Papers 2014-2015

Established in 2000, the Asia-Pacific Journal on Human Rights and the Law has become the leading law journal on human rights in Asia. It has published influential articles on important human rights issues occurring in most Asia-Pacific jurisdictions, including India, Pakistan, Bangladesh, East Timor, Japan, North Korea, South Korea, Malaysia, Myanmar, Mainland China, Taiwan, Hong Kong, Australia, Indonesia, Cambodia, Fiji, Vietnam, Bhutan, Sri Lanka, and the ASEAN. Prominent contributing authors include Yash Ghai, Michael Kirby, Jeremy Sarkin, Victor Ramraj, Kam C Wong, Xia Chunli, Rhona Smith, and the Journal’s founder, Fernard de Var.

Finding a new home at The University of Hong Kong in 2013, the Journal continues to play its leading role in publishing new human rights law scholarship concerning, or of interest to, Asia-Pacific jurisdictions, especially those not already mentioned above. In 2014, a special focus section will be devoted to the Commission of Inquiry’s report on human rights in North Korea.

Submission instructions. We publish both short and longer pieces but normally not longer than 20,000 words (inclusive of footnotes). Please follow the OSCOLA (4th edn) standard for the citation of legal authorities. 

Email papers to apjhrl@hku.hk. Submissions are acknowledged promptly and reviews are normally done within six to eight weeks. We also welcome primary documents, e.g. statements or declarations, for our Selected Human Rights Documents section, to further the promotion and dissemination of such documents.

Two issues of the Journal are published each year by Brill. Abstracts of articles are indexed on Scopus and searchable on Westlaw. Full text is available on BrillOnline, EBSCO, and HeinOnline. 

Website: http://www.brill.com/asia-pacific-journal-human-rights-and-law.

Simon N. M. Young, Professor, Faculty of Law snmyoung@hku.hk 

Kelley Loper, Assistant Professor, Faculty of Law kloper@hku.hk

The University of Hong Kong


Hermeneutics and Law

Francis Joseph (Jay) Mootz, III, is publishing Hermeneutics and Law in The Blackwell Companion to Hermeneutics (Naill Keane and Chris Lawn, eds.; 2015). Here is the abstract.
This chapter will appear in a forthcoming book on hermeneutics. After providing a hermeneutical phenomenology of legal practice that locates legal interpretation at the center of the rule of law, the chapter considers three important hermeneutical themes:

(1) the critical distinction between a legal historian writing aboout a law in the past and a judge deciding a case according to the law;
(2) the reinvigoration of the natural law tradition against the reductive characteristics of legal positivism by construing human nature as hermeneutical; and
(3) the role of philosophical hermeneutics in grounding critical legal theory rather than serving as a quiescent acceptance of the status quo, as elaborated by reconsidering the famous exchanges between Gadamer, Ricoeur and Habermas.
I argue that these three important themes are sufficient to underwrite Gadamer's famous assertion that legal practice has exemplary status for hermeneutical theory.
Download the essay from SSRN at the link.

Death of Willem Witteveen and Family in Air Crash In Ukraine

From Anne Wagner of the China University of Political Science and Law, and Editor of the International Journal for the Semiotics of Law, and from Richard Weisberg of Cardozo Law School, news that well-known semiotician and professor of law Willem Witteveen of the Tilberg Law School, his wife Lidwien Heerkens, and their daughter Marit, a student at the Tilburg University School of Humanities, died in the crash of Malaysia Flight HM17. We extend our sympathies to their  family, friends, and colleagues at Tilburg.

Anne notes that Professor Wittenveen was very much involved in the International Roundtable for the Semiotics of Law and in the International Journal for the Semiotics of Law where he actively participated to raise the quality and standards of submissions and abstracts.

From Richard, this expression of sympathy and remembrance: We note with sadness the tragic loss of Willem Witteveen on the Malaysian flight over Ukraine. Bill, a distinguished Dutch Senator, was a great friend of the Law and Literature movement in the Netherlands. He helped launch discussions of the field, including stories as a pathway to political activism, at a conference exactly 20 years ago in Leyden. We will miss him.

The University has posted a remembrance here and has opened a condolence book here.

July 2, 2014

Sing Out, Tom!

On Thursday, July 3rd, at the Library of Congress, the famed baritone Thomas Hampson and some friends will introduce us to an unfamiliar (but I'm sure, quite melodic) version of The Star-Spangled Banner, one that is much closer to what attorney Francis Scott Key heard as he came up with new lyrics while watching the bombardment of Fort McHenry during the War of 1812.

More here from the New York Times, here from the Library of Congress. 

July 1, 2014

A New Issue of NoFo and a Call for Papers

From Monica Lopez Lerma, Co-Editor-in-Chief, No Foundations: An Interdisciplinary Journal of Law and Justice, comes information about the contents of volume 11 (2014) of the Journal, and news of the call for papers for volume 12 (2015).

NoFo 11 (2014):
 Law & Society and the Politics of Relevance:
Facts and Field Boundaries in ‘Transnational Legal Theory in Context’
Peer Zumbansen
 Law in the Flesh: Tracing Legitimation’s Origin to The Act of Killing?
Richard K. Sherwin
 ‘No Foundations’?
Mark Antaki
 Pots, Tents, Temples
Angus McDonald
 Is Justice for Sale? Further Readings on Saramago and the Law Joana Aguiar e Silva
 Hanoch Dagan: Reconstructing American Legal Realism & Rethinking Private Law Theory. Oxford University Press, Oxford 2013.
Andrew Halpin
 Gary Watt: Dress, Law and Naked Truth. A Cultural Study of Fashion and Form. Bloomsbury, London 2013.
Leslie J. Moran
 Richard Dawson: Justice as Attunement. Transforming Constitutions in Law, Literature, Economics, and the Rest of Life. Routledge, Abingdon 2014.
Jack L. Sammons
  Call for Papers
 No Foundations is currently accepting general submissions and book reviews for NoFo 12 (June 2015). To facilitate the review process please send us your manuscript before March 1, 2015. Please include an abstract of no more than 200 words with your submission.

June 26, 2014

Law, Reason, and Emotion

Mortimer Newlin Stead Seller, University of Baltimore School of Law, has published Law, Reason, and Emotion. Here is the abstract.

Law, reason, and emotion have a long, close, and complicated relationship in the history of philosophy and justice. This discussion suggests that that law gains legitimacy and effectiveness when it marries reason with emotion, that reason and human emotion are the guiding values of any just legal system, that all legal systems claim to be just, and that all legal systems and all legal scholars make use of these insights whether they acknowledge them or not. The project here in the first instance is one of definition: "law", "reason", "emotion", "justice", "effectiveness", and "the rule of law" all require specification to better understand how they relate to one another and set the agenda for further conversation. The first step is to consider how these words have been and should be used for the better understanding and eventual improvement of law and society. Reason and emotion are the twin pillars of the law, which make the law legitimate, just, and effective when they are properly taken into account and otherwise not. No one can properly understand law without reference both to human emotion and to the purpose law properly exists to serve, which is the rational well-being of each and every member of society.
Download the paper from SSRN at the link. 

The US Supreme Court and Institutional Legitimacy

James L. Gibson, Washington University in St. Louis, Department of Political Science, Milton Lodge, Stony Brook University, Department of Political Science, and Ben Woodson, Stony Brook University, Department of Political Science, have published Legitimacy, Losing, But Accepting: A Test of Positivity Theory and the Effects of Judicial Symbols. Here is the abstract.

How is it that the U.S. Supreme Court is capable of getting most citizens to accept rulings with which they disagree? This analysis addresses the role of the symbols of judicial authority and legitimacy – the robe, the gavel, the cathedral-like court building – in contributing to this willingness of ordinary people to acquiesce to disagreeable court decisions. Using an experimental design and a nationally representative sample, we show that exposure to judicial symbols (1) strengthens the link between institutional support and acquiescence among those with relatively low prior awareness of the Supreme Court; (2) has differing effects depending upon levels of pre-existing institutional support; and (3) severs the link between disappointment with a disagreeable Court decision and willingness to challenge the ruling. Since symbols influence citizens in ways that reinforce the legitimacy of courts, the connection between institutional attitudes and acquiescence posited by Legitimacy Theory is both supported and explained.
Download the paper from SSRN at the link. 

June 25, 2014

The Media and Reports of Crime, 1960-2009

Moira Peelo, Lancaster University, and Keith Soothill, Lancaster University, have published ‘Marginal’ Crime: The Example of Blackmail in Representing Evolving Crime Narratives at 53 Howard Journal of Criminal Justice 221 (2014). Here is the abstract.

Newspaper representation of blackmail cases from over half a century (1960–2009) is used to illustrate ‘marginal’ crime reporting in an era of social change: we asked how such crimes fare in attracting public attention and what meanings they represent during a period of politicised, public and criminological narratives of crime and disorder. ‘Marginal’ crimes sit at the edges of crime narratives and at the boundaries of criminology, yet the example of blackmail indicates wider social concerns. A macro analysis of 252 cases showed a steady public profile with six major categories of blackmail reported. At a micro level, only 33 cases achieved sustained reporting, deriving meaning from current social anxiety; acted normatively – defining current group values; or were one of a palette of charges brought against individuals.
The full text is not available from SSRN. 

Shakespeare As Therapist?

Herschel Prins, Loughborough University & University of Birmingham, has published Mental Disorder, Criminality and the Literary Imagination at 53 Howard Journal of Criminal Justice 290 (2014).

This contribution attempts to explore the use of a variety of literary sources as aids or ‘prompts’ to understanding those offenders and offender‐patients whose mental states often raise considerable anxieties in those charged with their management. The word ‘prompt’ is borrowed from the work of my friend, the late doctor Murray Cox, and his co‐worker Alice Theilgaard in their seminal work Shakespeare as Prompter (1994). The author of the present article hopes that its content will enable readers to focus more clearly on why we sometimes fail our offenders and offender‐patients; in particular, through the mechanism of denial. The use of dramatic presentation when proffered with a unique blend of force and sensitivity can permit us to view puzzlement and horror from a safe distance and, at the same time, encourage us to increase our empathic understanding and professional practice. Most of the examples cited are brief allusions but, because her history is so compellingly applicable to our concerns in the present contribution, the ‘case’ of Lady Macbeth is considered in more detail. Finally, I would note some very wise words by Cox and Theilgaard (1994) in a caveat note to the reader: ‘Should the focus on therapy ever become occluded by preoccupation with poetic association, clinical skills would be diminished, distraction ensue and therapeutic contact deteriorate’ (not numbered). In the material that follows readers should bear such a cautionary note in mind.
The full text is not available from SSRN. 

June 24, 2014

The Supreme Court's Christmas Party Guest List: 1947 and 1959

Ross E. Davies, George Mason University School of Law; The Green Bag, has published A Christmas Gift for the Supreme Court: How a 1959 Holiday Party Eclipsed a History of Discrimination at 17 Green Bag 2d 311 (Spring 2014).
On December 28, 1959, the New York Times published a little news item that was, in hindsight, both (1) a public relations triumph for Banning E. “Bert” Whittington, the U.S. Supreme Court’s Press Officer at the time, and (2) a jurisprudential and institutional relief for the Court. COURT DEFIES PRECEDENT: “One of the last institutions holding out against the Christmas Party succumbed last week. The Supreme Court had a pleasant but sober affair arranged by its press officer, Banning E. Whittington. Five of the Justices – Hugo L. Black, Felix Frankfurter, William O. Douglas, William J. Brennan Jr. and Potter Stewart – joined the small staff of employes. There were fruit punch, cookies and carols by a high school group, with some audience singing, too.” The story has a tone that should ring familiar in the ears of modern consumers of Supreme Court news reporting: good-natured indulgence of that somewhat dull, somewhat behind the times, somewhat culturally clueless wallflower among our great institutions of national government. But the background to that story suggests that the Court was not at all clueless in 1959. Indeed, the Court’s handling of that Christmas party, and the Times coverage of it, may have helped the Court occupy the high ground during its continuing campaign in the 1960s against racial discrimination.
Download the full text of the article from SSRN at the link.

A very interesting sidelight on the Court during a turbulent decade. 

June 19, 2014

Trying the New Deal

Ahmed White, University of Colorado Law School, has published The Wagner Act on Trial: The 1937 'Little Steel' Strike and the Limits of New Deal Reform. Here is the abstract.

The National Labor Relations Act of 1935, or Wagner Act, played a crucial role in shaping the New Deal and eventually transforming the economic, political, and legal foundations of modern America. Although many aspects of the statute’s history, including its relationship to the rise of industrial unionism and the epic struggle to secure its constitutionality, have been well told by historians and legal scholars, key elements of its story remain obscured by misconceptions, oversight, and outright myth. Not least among these areas of uncertainty is how the new law actually functioned in the months and years immediately after the Supreme Court upheld its constitutionality, and what its fate in this crucial time says about the nature of the New Deal itself. This article undertakes to shed light on these questions by unfolding the history of one of the most important events in the Second New Deal period: the “Little Steel” Strike of 1937. Drawing on a host of sources, including five major archival collections, this article tells the story of this dramatic and violent episode, including its legal history. Presenting the strike as a key test of the Wagner Act and a critical bellwether of the New Deal, the article documents not only the virtues of new regime in labor rights just as it emerged from the shadow of unconstitutionality, but also congenital shortcomings in the labor law that have undermined workers’ rights ever since. In a further challenge to conventional narratives of the period, the story of the strike exposes the remarkable degree to which the power of the business community survived, relatively undiminished, the Wagner Act and the political changes that accompanied it. Moreover, giving credence to a broader literature on New Deal law and policy, the article presents the strike and litigation surrounding it as proof of the continuing weakness of the New Deal and as key moments in the conservative turn that marked course of reform in the late 1930s.

Download the paper from SSRN at the link.

June 17, 2014

Natural Born Citizens and the U.S. Constitution

Mary Brigid McManamon, Widener University School of Law, is publishing The Natural Born Citizen Clause as Originally Understood in the Catholic University Law Review. Here is the abstract.

Article II of the Constitution requires that the President be a “natural born Citizen.” The phrase is derived from English common law, and the Supreme Court requires examination of that law to ascertain the phrase’s definition. This piece presents the pertinent English sources, combined with statements by early American jurists. Based on a reading of these materials, the article concludes that, in the eyes of the Framers, a presidential candidate must be born within the United States. The article is important because there have been candidates that “pushed the envelope” on this question in many elections over the last 50 years, and no article in the last century has correctly explained the common law definition. This article is timely because there will again be such a candidate in 2016 if Sen. Ted Cruz decides to run.
Download the full text from SSRN at the link. 

Law at the US Supreme Court

Jessica Silbey, Suffolk University Law School, and Megan Slack, Slack Law Firm, are publishing The Semiotics of Film in US Supreme Court Cases   in  Law, Culture and Visual Studies (Springer 2014). Here is the abstract.
This chapter explores the treatment of film as a cultural object among varied legal subject matter in US Supreme Court jurisprudence. Film is significant as an object or industry well beyond its incarnation as popular media. Its role in law – even the highest level of US appellate law – is similarly varied and goes well beyond the subject of a copyright case (as a moving picture) or as an evidentiary proffer (as a video of a criminal confession). This chapter traces the discussion of film in US Supreme Court cases in order to map the wide-ranging and diverse ­relations of film to law – a semiotics of film in the high court’s jurisprudence – to decouple the notion of film with entertainment or visual truth.

This chapter discerns the many ways in which the court perceives the role of film in legal disputes and social life. It also illuminates how the court imagines and reconstitutes through its decisions the evolving forms and significances of film and film spectatorship as an interactive public for film in society. As such, this project contributes to the work on the legal construction of social life, exploring how court cases constitute social reality through their legal discourse. It also speaks to film enthusiasts and critics who understand that film is much more than entertainment and is, in practice, a conduit of information and a mechanism for lived experience. Enmeshed in the fabric of society, film is political, commercial, expressive, violent, technologically sophisticated, economically valuable, uniquely persuasive, and, as these cases demonstrate, constantly evolving.
Download the essay from SSRN at the link. 

June 16, 2014

Antigone and Human Rights

Kevin P. Lee, Campbell University Law School, has published Emanuel Levinas on Hegel's Antigone: Levinas and the Problem of Modernity. Here is the abstract.
This essay introduces Emmanuel Levinas’s contribution to post-secular human rights discourse. It looks first to Levinas’s reading of Sophocles’ tragedy, Antigone, for an introduction to his thinking about the relationship between the human law and divine law. For his approach to “post-secularity” it compares Levinas to Jürgen Habermas’s critique of the “discourse on modernity” with particular concern for several issues of importance to human rights discourse. Levinas develops a “post-ontological” conception of religion as a part of his account of subjectivity. It suggests that, while flawed in many respects, Levinas’s work illustrates some of the complex issues facing those who seek to articulate a post secular theory of human rights.

Download the paper from SSRN at the link. 

Legal Rules and Narrative Reasoning

Stephen Paskey, State University of New York (SUNY) Buffalo Law School, is publishing The Law is Made of Stories: Erasing the False Dichotomy between Stories and Legal Rules in volume 11 of Legal Communication and Rhetoric (Fall 2014). Here is the abstract.

When lawyers think of legal analysis, they think chiefly of logic and reason. Stories are secondary. As Michael Smith explains, our legal system “is not founded on narrative reasoning” but on “a commitment to the rule of law.” The article suggests that this dichotomy between “rule-based reasoning” and “narrative reasoning” is false, and that narrative and stories are central to legal reasoning, including rule-based reasoning. In doing so, the article uses literary narrative theory to show that every governing legal rule has the structure of a “stock story”: the elements of the rule correspond to elements of a story. It follows that lawyers do not rely on stories simply because they are persuasive. They do so because a story is literally embedded in the structure of governing rules, and those rules can be satisfied only by telling a story. Thus, many analytical moves we label “rule-based reasoning” can be understood as a type of narrative reasoning, in which a client’s story is compared to and contrasted with the stock story embedded in the rule.
Download the article from SSRN at the link. 

Harry Potter à la mode

A new book on law and Harry Potter, this one in French:

Jean-Claude Milner, Harry Potter: A l’école des sciences morales et politiques (PUF, 2014) (the date of publication is listed as July 2014).

Here's the table of contents: Introduction

1 – Le Roman d’éducation

2 – Les leçons de la tante Marge

3 – La leçon d’Eton

4 – La leçon des humanistes

5 – La leçon de Voldemort

6 – La leçon des sorciers

7 – La leçon des moldus et le secret de Dumbledore


A tip of the sorting hat to José Calvo Gonzalez, University of Malaga

June 12, 2014

A New Book On Legal Translation

Newly published:

The Ashgate Handbook of Legal Translation (Le Cheng, Ing Kui Sin, Anne Wagner, eds.; Ashgate, 2014) (Law, Language, and Communication). Here is a description of the contents from the publisher's website.

  • This volume investigates advances in the field of legal translation both from a theoretical and practical perspective, with professional and academic insights from leading experts in the field. Part I of the collection focuses on the exploration of legal translatability from a theoretical angle. Covering fundamental issues such as equivalence in legal translation, approaches to legal translation and the interaction between judicial interpretation and legal translation, the authors offer contributions from philosophical, rhetorical, terminological and lexicographical perspectives. Part II focuses on the analysis of legal translation from a practical perspective among different jurisdictions such as China, the EU and Japan, offering multiple and pluralistic viewpoints.
    This book presents a collection of studies in legal translation which not only provide the latest international research findings among academics and practitioners, but also furnish us with a new approach to, and new insights into, the phenomena and nature of legal translation and legal transfer.
    The collection provides an invaluable reference for researchers, practitioners, academics and students specialising in law and legal translation, philosophy, sociology, linguistics and semiotics.
  • Contents: Foreword: new challenges for legal translation, Heikki Eero Sakari Mattila; Legal translatability process as the ‘third space’: insights into theory and practice, Anne Wagner, King-Kui Sin and Le Cheng. Part I Legal Translation in Theory: Translation vs. decoding strategies in law and economics scholarship, Mariusz Jerzy Golecki; Cultural transfer and conceptualisation in legal discourse, Anne Wagner, King-Kui Sin and Le Cheng; Lost in translation? Linguistic diversity and the elusive quest for plain meaning in the law, Janet Ainsworth; Translation equivalence as a legal fiction, Janny H.C. Leung; Trying to see the wood despite the trees: a plain approach to legal translation, Víctor González-Ruiz; Minimal unit of legal translation vs. minimal unit of thought, Svetlana V. Vlasenko; Parameters for problem-solving in legal translation: implications for legal lexicography and institutional terminology management, Fernando Prieto Ramos; Structuring a legal translation course: a framework for decision-making in legal translator training, Catherine Way. Part II Legal Translation in Practice: EU legislative texts and translation, Colin Robertson; Phraseology in legal translation: a corpus-based analysis of textual mapping in EU law, Łucja Biel; Translating international arbitration norms into the Italian language and culture, Maurizio Gotti; Translating domestic legislation: a comparative analysis of English versions of Brazilian law on arbitration, Celina Frade; Translation of Japanese laws and regulations, Kayoko Takeda and Yasuhiro Sekine; Important translation strategies used in legal translation: examples of Hooper’s translation of the Ottoman Majalla into English, Rafat Y. Alwazna; On the translation of the criminal procedure law of the PRC, Lijin Sha and Jian Li; The new Czech civil code - lessons from legal translation: a case-study analysis, Marta Chromá; Multilevel translation analysis of a key legal concept: persona juris and legal pluralism, Sandy Lamalle. Afterword: the trials and tribulations of legal translation, Deborah Cao; Index.

Organizing the Doctrines of International Law

Matthias Goldmann, Max Planck Institute for Comparative Public Law and International Law, has published Principles in International Law as Rational Reconstructions. A Taxonomy. Here is the abstract.

The paper suggests that principles as an important part of legal doctrine should be understood as the result of the rational reconstruction of legal discourse in the sense of Jürgen Habermas’ method bearing the same name (A.). It first argues that principles are best understood as abstract legal rules, not as normative presuppositions that are categorically different from rules (B.). As principles in international law just as in domestic legal orders are important parts of doctrine, the papers inquires into the self-understanding of doctrine, i.e. of the method used for the formation of principles (C.I.). Doctrine as the production of conceptual abstractions from the positive law has faced a number of methodological challenges over the last two centuries (C.II.). The method of rational reconstruction provides a methodologically tenable explanation. Envisaged by Jürgen Habermas as an explanation for the practice of communication and later applied to the practice of political discourse, this method allows understanding legal principles as the normative presuppositions of the participants in legal discourse (C.III.). Depending on which part of legal discourse one attempts to reconstruct, a taxonomy of principles in international law emerges, ranging from hard-law general principles of law to structural principles with merely heuristic functions (D.). The rational reconstruction of principles in international law thus helps to carve out the dividing line between law and politics and bears relevance for current scholarly endeavors (E.).
Download the paper from SSRN at the link. 

June 11, 2014

Law and Yoga

Michal Tamir, Shaarei Mishpat College of Law is publishing Law and Yoga in the Journal of Law and Social Deviance. Here is the abstract.

“Law and yoga” is a phrase that is rarely heard anywhere, much less in courtrooms or in yoga studios. This oxymoronic pairing represents two entities and two separate worlds, without an obvious connection. The practice of law involves constant judgment of others, while the yoga tradition aims to avoid judgment; yoga consecrates silence, while law revolves around discourse; yoga focuses in the most extreme way on the given moment, whereas law looks to the past and the future, particularly with regard to precedents; yoga deals with the whole and the one, whereas law dissects every issue into minutiae and subparts. Despite these dichotomies, yoga, as an in-depth, comprehensive approach to life, can be a model by which to re-examine behavior in the world of law, thereby contributing tools and values that can be useful for resolving legal crises and social conflicts.

Yoga philosophy stresses that cutting oneself off from thinking through silence enables exploration and seeking, which, in turn, leads to finding our inner truth. The process of seeking inner truth can lead to the discovery of the external truth, the Dharma, which embodies both the desirable and the available. This insight can be applied to a legal framework in order to help bridge the gap between justice and law and reconcile factual truth and legal truth. The article recognizes that law and justice are not one and the same, and that various legal rules and doctrines, to do with proof, evidence, precedent, and other variables, sometimes prevent factual truth from translating into legal truth and decisions. Nonetheless, diminishing this gap - i.e., turning the desirable into the actual - can be more easily achieved through the application of yoga principles to the practice of law, thereby achieving what those in the legal profession aspire to.
Download the article from SSRN at the link. 

The Aesthetics of Contract Law

Kenneth K. Ching, Regent University School of Law, has published Beauty and Ugliness in Offer and Acceptance. Here is the abstract.

This essay applies classical aesthetics to the contract doctrine of offer and acceptance. It argues that contract law can be understood, analyzed, and improved using three criteria of beauty: proportion, integrity, and clarity. Based on these criteria, this essay (1) argues that the traditional doctrine of offer and acceptance is beautiful, (2) argues that UCC §2-207 is ugly and fails to improve upon offer and acceptance, and (3) suggests improvements for UCC §2-207.
Download the essay from SSRN at the link. 

Patriarchial Government and Aboriginal Peoples In Australian Law and Culture

Honni Van Rijswijk, University of Technology Sydney, Faculty of Law, is publishing Archiving the Northern Territory Intervention in Law, and in the Literary Counter-Imaginary in volume 40 of the Australian Feminist Law Journal (2014). Here is the abstract.

This article focuses on a figure archived in contemporary Australian law, a figure who is central to the state’s control of Aboriginal people. This figure, like her counterparts in earlier historical periods, is to be found in legislation and in case law, and in law’s supplementary genres, including welfare and indigenous policy, and Parliamentary second-reading speeches. This figure is the ‘abused Aboriginal child’, and she has been significant to the production of myths of the Australian nation-state, and to the rule of law. She is being used to justify the continued administration of Aboriginal communities, through simultaneously both the continuing suspension of the rule of law, and the violent instrumentalisation of law. This article examines the archive of the Northern Territory Intervention and subsequent Stronger Futures legislation, investigating the ways in which law’s violence masquerades as law’s care. I seek to explore the ways in which reading law as an archive opens up the possibility of a counter-archival practice that interrupts and disorients law’s claim to violent jurisdiction over Aboriginal people. The emphasis here is on reading law as archive — on taking up a position of readerly responsibility with respect to the practices of representation that constitute law’s archive, and on constructing counter-archival practices and imaginaries that resist and re-situate law’s authority. By way of example, I examine Alexis Wright’s most recent novel, The Swan Book (2013), which is read as an exemplary counter-archival text that interrupts law’s archival practices and claims.
Download the article from SSRN at the link. 

June 10, 2014

Law Among Friends

Alecia Simmonds, University of Technology Sydney, Faculty of Law, has published Trading Sentiments: Friendship and Commerce in John Turnbull's Voyages (1800-1813) in volume 48 of the Journal of Pacific History (2014). Here is the abstract.

This paper explores the relationship between commerce, cross-cultural friendship and empire in the published Voyages of Pacific salt pork trader John Turnbull. Turnbull published two versions of his Voyages, the first in 1805 and the second in 1813. Through exposing the variations between the two versions of his Voyages and analysing the reception of each text in the burgeoning periodical literature at the time, I explore how his commercially oriented critiques of cross-cultural friendship transformed into unbridled enthusiasm in the second reprint. I explain this shift as both a consequence of a shift in genre, from commercial voyaging to scientific voyaging, and as a reflection of two competing ideas of the relationship between friendship and commerce. The first version reflects a Smithian ideal, where friendship is excluded from commerce, while the second version shows a natural law conception of friendship as commercial imperialism in its ideal, and morally virtuous, form. 

Download the article from SSRN at the link. 

Paul Robeson As Human Rights Advocate

Penelope Andrews, Albany Law School, has published A Champion for African Freedom: Paul Robeson and the Struggle Against Apartheid in volume 77 of the Albany Law Review (2014). Here is the abstract.

On February 28, 2013, I was honored to deliver the Paul Robeson lecture at Columbia Law School, an annual event to commemorate the life and legacy of Paul Robeson, a graduate of Columbia Law School (Class of 1923). This article is a slightly expanded version of my lecture.
This article will have four components: first, it will highlight the achievements of this extraordinary man, an advocate for social justice, a world-renowned artist, and an accomplished sportsman. Second, in this article I explore Paul Robeson’s connections and commitment to the African anti-colonial struggle, and in particular the struggle against apartheid in South Africa. Third, this article examines the legal developments in South Africa with the collapse of formal apartheid, and outlines the broad contours of the constitutional text, particularly the bill of rights and the constitutional and human rights jurisprudence of the Constitutional Court. Finally, the article will end with the question: what would Paul Robeson say about the contemporary moment that post-apartheid South Africa finds itself in?
Download the article from SSRN at the link. 

June 2, 2014

New Legal Drama Premieres On June 29

The new CBS legal drama, Reckless, premieres June 29th at 9 p.m., 8 Central time. Watch a promo here. The series is based on a British show of the same name which aired on ITV in 1997; it is set in Charleston, South Carolina. Note that the British series featured health professionals, not lawyers (It starred Robson Green, who went on to star in the legal drama Trust). Anna Wood stars as Northern attorney Jamie Sawyer who moves to the city and immediately finds an adversary (and love interest) in local lawyer Roy Rayder (Cam Gigandet).

More here

May 30, 2014

Legal History and Criminal Law

Markus D. Dubber, University of Toronto Faculty of Law, is publishing Histories of Crime and Criminal Justice and the Historical Analysis of Criminal Law in the Oxford Handbook of the History of Crime and Criminal Justice (Paul Knepper & Anja Johansen eds.; Forthcoming). Here is the abstract.

This essay reflects on the relationship between the history of crime, the history of criminal justice, and the history of criminal law. It suggests an account of the historical analysis of criminal law that locates it within the general project of critical analysis of law (CAL).
Download the essay from SSRN at the link. 

May 21, 2014

Looking At Looking Down

Yxta Maya Murray, Loyola Law School (Los Angeles), is publishing Peering in the Georgetown Journal on Poverty Law Policy. Here is the abstract.

“Peering” designates a legal practice of gazing at poor people. Legal actors literally peer, that is, look at the poor; they also peer in another fashion, which determines whether the visual subject is their peer. If the observed falls short of the observer’s social class, the law fixes them in their “proper place.” In the Fifth Amendment takings context, this means they are at risk for condemnation.

This article traces peering’s evolution in Fifth Amendment law. It notes peering’s initial descent: From the 1920s until the 2000s, courts looked “down” at the poor, often describing them as monstrous. “Slums” – edifices typically depicted as housing contagious subhumans – proved perfect objects of condemnations since they threatened the upper strata. In the 1980s, however, another legal gaze flourished: One that looked “up,” and whose bearers peered themselves with wealthy developers. In cases stemming from Michigan’s 1981 Poletown Neighborhood Council v. City of Detroit to the Supreme Court’s 2005 Kelo v. City of New London, we find rhetoric signaling legislative and judicial alignment with affluence. Here, lawmakers and judges approved condemnations that fostered “world class” and “cutting edge” corporate factories. I call this the ascendant or aspirational gaze, and in its exuberant optics, both the poor and the middle class find themselves vulnerable to “economic rejuvenation” takings. An active lobby of activists and judges challenge this gaze with petit bourgeois perspectives, leading to reform. But the poor submerge in these visuals, finding vanishing chances to escape “blight” condemnations.

To understand and combat peering, I study Columbia University’s recent expansion into West Harlem. I contemplate New York Court of Appeals’ 2010 Matter of Kaur v. New York State Urban Development Corporation, which approved of Manhattanville’s condemnation, and also the political rhetoric and blight reports that justified the taking. I additionally reference interviews with members of the Harlem community, and offer their home photographs as counter‐images to the ones that filled the blight reports. Inspired by the legal history I recount, as well as the testaments and images offered by Harlem residents, I describe the racist, classist, and violent meanings of blight findings. I reject “blight” as unsalvageable, but sketch a Fifth Amendment doctrine that would foster what one Harlem leader describes as a “decent life.”
Download the article from SSRN at the link.

May 20, 2014

Snapshot: Scottish and English Law at James VI & I's Accession

Hector Lewis MacQueen, University of Edinburgh School of Law, has published Scots and English Law c.1603: Uniting or Dividing Kingdoms? as Edinburgh School of Law Research Paper No. 2014/15.

Here is the abstract. A brief discussion of how Scots and English lawyers saw their respective laws and legal systems at the time of the Union of the Crowns, when the prospect of a union of laws was also put before them.
Download the paper from SSRN at the link. 

Paved With Good Intentions

Charles J. Reid, Jr., University of St. Thomas School of Law (Minnesota), has published Highway to Hell: The Great National Highway Debate of 1830 and Congress as Constitutional Interpreter as U. of St. Thomas (Minnesota) Lgal Studies Research Paper No. 14-20. Here is the abstract.

This Article focuses on the role of the Constitution in the 1830 Congressional debate over the Buffalo to Washington to New Orleans National Road. It takes as its inspiration David Currie's monumental study of the ante-bellum Congress as constitutional interpreter. It moves beyond Currie, however, in the intensity of its focus on a single congressional debate.
The debate over the National Road was largely a proxy for the larger struggles over slavery and sectionalism. The Road's supporters generally represented Northern or Western states and took a nationalist view of the Constitution. They understood the Union as an organic entity, a single nation, comprising a single People, united to attain large and shared objectives. They understood the Constitution as facilitating these objectives. They were bold in the various creative if not novel constructions they placed on the Constitution. They paid little heed to arguments about states' rights or limited and enumerated constitutional powers.
The opposition was centered in the South although it drew support from some Northern sympathizers. They viewed the highway as a threat to the Southern slave-based economy and mustered various constitutional objections to it. The Constitution was one of limited and enumerated powers, they argued, and it did not include the authority to construct highways. Similarly, they argued, the Constitution created a loose "confederacy" of sovereign states, united for only a few specifically identified purposes. States' rights was, on this analysis, the central organizing principle of the Constitution. In all of this, the great concern was with the preservation of an "agricultural" way of life, understood by all to refer euphemistically to plantation slavery.
It becomes apparent that the contest over slavery, which was certainly the greatest constitutional debate of the nineteenth century - and very possibly the greatest constitutional struggle of all time - was playing out principally outside the purview of the judiciary. It was taking place, rather, in the halls of Congress and the court of public opinion.
 Download the paper from SSRN at the link.

A French Legal Philosopher and Louisiana Jurisprudence

François-Xavier Licari, University of Lorraine, has published François Gény in Louisiana at 6 Journal of Civil Law Studies 475 (2013). Here is the abstract.

In his book "François Gény and Modern Jurisprudence" (LSU Press, 1978), Jaro Mayda wrote (p.69): "The important point…is that, despite the art represented by the current literature, the pragmatic temper of America and of its mixed jurisdictions, such as Louisiana, may well be the environment that will send Gény’s themes toward their integration into a rational, modern jurisprudence". This paper tells the story of the realization of this scholarly prophesy. It identifies sociological, historical and cultural factors that contributed to Louisiana's unique reception of the "free objective search for a rule" as set forth in François Gény's manifesto, "Méthode d'interprétation et sources en droit privé positif". It also studies expressions of such successful reception, analyzing some leading cases of the Louisiana Supreme Court.
Download the article at the link provided. 

May 19, 2014

Radu Florescu, Romanian Historian and Specialist On Dracula, Dies

Radu Florescu, who with Raymond T. McNally wrote the popular book In Search of Dracula (Mariner Books, 1994), as well as numerous other volumes, has died at the age of 88. Professor Florescu was born in Romania and educated at Christ Church, Oxford, and Indiana University. Dr. Florescu served as head of the East European Research Center, Boston College, for more than two decades, and then retired to France with his wife.

Professor Florescu and his co-author suggest in In Search of Dracula that Bram Stoker modeled the famous vampire on the notorious Vlad the Impaler (1431-1476/77), Prince of Wallachia, called Dracula, who had a particularly awful way of dispatching his enemies (hence his nickname).

Short and very selective bibliography on law and Dracula below (Remember that Jonathan Harker, one of the narrators of the novel, is a young solicitor, and Professor Van Helsing is both a lawyer and a physician). Another link to the full e-text here (Project Gutenberg). Bram Stoker himself studied law later in life, and was admitted to the Inner Temple in 1890. See Barbara Belford, Bram Stoker and the Man Who Was Dracula (Da Capo Press, 2002).

Carpi, Daniela, A Biojuridical Reading of Dracula, 6 Polemos 169 (2012).

Dunleavy, Matthew, Tracing the Criminal Through Modern Myths: Frankenstein's Creature to Dracula, in 32 Conference Proceedings of the Quebec Universities English Undergraduate Conference, Bishop's University, March 15-16, 2013 (Bishop's University, 2013).

Harse, Katie, "Power of Combination": Dracula and Secret Societies, in Flashes of the Fantastic: Selected Essays from the War of the Worlds Centennial, Nineteenth International Conference on the Fantastic in the Arts 195 (David Ketterer, ed.; Greenwood Press, 2004).

McGillivray, Anne, "He Would Have Made a Wonderful Solicitor": Law, Modernity, and Professionalism in Bram Stoker's Dracula, in Lawyers and Vampires: Cultural Histories of Legal Professions 225 (W. Wesley Pue and David Sugarman (Hart Publishing, 2003).

McGillivray, Anne, "What Sort of Grim Adventure Was It On Which I Had Embarked?": Lawyers, Vampires and the Melancholy of Law, 4 Gothic Studies 116 (2002).

Senf, Carol A., Dracula: The Unseen Face In the Mirror, 9 The Journal of Narrative Technique 160 (1979).

Wasson, R., The Politics of Dracula, in 9 English Literature in Translation 1880-1920 24 (1966).

From the Wall Street Journal: More here on Dracula and a tax lawyer's contribution to an annotated version of the manuscript. (Tax lawyers are everywhere).


Some fun for a Monday: today's Google Doodle features the Rubik's Cube. Need help with the solution? Check  here. More Cubes here.  Coverage of the Cube's popularity today here from the International Business Times. At his blog, Andrew Lovelock creates an analogy between the Cube and the law of trusts. 

"This Kiss, This Kiss..."

Hector Lewis MacQueen, University of Edinburgh, School of Law, has published Ae Fond Kiss: A Private Matter? in Judge and Jurist: Essays in Memory of Lord Rodger of Earlsferry 473 (Oxford 2013). Here is the abstract.

The Ben Beinart Memorial Lecture given at the University of Cape Town on 16 April 2013. The paper discusses the 1804 case of Cadell & Davies v Stewart, in which the existence of rights to publish or to prevent publication of private letters between the poet Robert Burns and his close friend Agnes McLehose was ventilated at length by the advocates and judges appearing in the court. The paper assesses the evidence for what really happened between Burns and Agnes, and discusses the contemporary significance of the court's decision to prevent publication.
Download the essay from SSRN at the link. 

Original Meanings and Original Dictionaries

Gregory E. Maggs, George Washington University Law School, has published A Concise Guide to Using Dictionaries from the Founding Era to Determine the Original Meaning of the Constitution at 82 Geo. Wash. L. Rev. 358 (2014). Here is the abstract.

This Article explains how dictionaries published in the Founding Era may provide evidence of the original meaning of the Constitution. In addition, the Article identifies and discusses six potential problems with relying on definitions from these dictionaries, and cautions that these potential problems must be considered when using Founding Era dictionaries either to make claims about the Constitution’s original meaning or to evaluate claims about original meaning made by others. Finally, the Article includes an Appendix describing nine English language dictionaries and four legal dictionaries from the Founding Era that the Supreme Court has cited in constitutional cases, and indicates where free versions of these dictionaries can be found online. Download the article from SSRN at the link.

May 13, 2014

Judicial Review In the Ancien Regime

Francesco Di Donato, University Parthenope of Napoli, has published La hiérarchie des normes dans l’ordre juridique, social et institutionnel de l’Ancien Régime (The Hierarchy of Norms in the Juridical, Social and Institutional Order of the Ancient Regime), at 21 Revus: Journal of Constitutional Theory and Philosophy of law 237 (2013). Here are the abstracts (French and English).  

 Le contrôle de constitutionnalité, dont la magistrature parlementaire de l’Ancien Régime revendiquait le plein droit, n’était pas fondé uniquement sur les lois fondamentales du royaume, mais sur l’ensemble des principes (les maximes) tirés de la Tradition. Cette dernière était composée en premier lieu par le droit divin et le droit naturel, c’est-à-dire par des systèmes juridiques qui nécessitaient, tous les deux, une interprétation juridictionnelle ‘sapientiale’. Cette activité interprétative était ‘révélatrice’ d’un corpus de valeurs métaphysiques à laquelle seule la Scientia Juris des magistrats pouvait puiser. Mais dans la sphère de la Tradition juridique rentraient aussi le dépôt légal, c’est-à-dire l’ensemble de toutes les lois, même des lois ainsi dites ordinaires, c’est-à-dire celles qui avaient été produites par la simple manifestation de volonté souveraine d’un roi prédécesseur car tel avait été son plaisir (moderne formulation du brocarde de droit romain: quidquid principi placuit legis habet vigorem). Ainsi la juridiction parlementaire donnait lieu à un jugement de constitutionnalité qui était normalement exercé de manière très flexible par le corps de la magistrature, dépendant des circonstances et des intérêts politiques momentanés des situations juridiques qu’elle voulait protéger. La hiérarchie des normes était ainsi un formidable instrument de protection de cet ordre juridique dont les legum doctores se sentaient les tuteurs. Elle était, donc, directement liée au gouvernement politique des juges.
The judicial review, to which the Ancient Regime’s parliamentary judiciary claimed full and unique right, was not only founded on the fundamental laws of the French kingdom, but also on a set of principles (les maximes) drawn from the Tradition. This Tradition was first of all composed of the divine law and the natural law, that is of legal systems both of which needed a judicial sapiencial interpretation. This interpretative activity provided revealing insight into the body of metaphysical values that only the magistrates’ Scientia Juris was able to draw on. However, the legal Tradition also included the dépôt légal, i.e., the totality of all laws, including, so to say, ordinary laws, that is to say statutes created as a result of the simple manifestation of the sovereign will of an earlier King car tel avait été son plaisir (modern formulation of the Roman expression: quidquid principi placuit legis habet vigorem). Thus, parliamentary jurisdiction used to give rise to judicial review that was usually exercised very flexibly by the Judiciary, i.e. depending on the circumstances and momentary political interests of the legal situations it wanted to protect. Thus, the hierarchy of norms was a remarkable instrument for protecting this legal order whose tutors were, according to their own opinion, legum doctores. And so the hierarchy of norms was directly connected with the political government of judges.
Download the article from SSRN at the link.

The Legal Image

Elizabeth G. Porter, University of Washington School of Law, is publishing Taking Images Seriously in the Columbia Law Review. Here is the abstract.

Law has been trapped in a stylistic straitjacket. The Internet has revolutionized media and communications, replacing text with a dizzying array of multimedia graphics and images. Facebook hosts 150 billion photos. Courts spend millions on trial technology. But those innovations have barely trickled into the black-and-white world of written law. Legal treatises continue to evoke Blackstone and Kent; most legal casebooks are facsimiles of Langdell’s; and legal journals resemble the
Harvard Law Review circa 1887. None of these influential forms of disseminating the law has embraced — or even nodded to — modern, image-saturated communication norms. Litigants, scholars and courts have been rebooting the same formalist templates for over a century — templates that were formed before widespread use of the camera, never mind the computer. Outside of trial, where image-driven advocacy has a long history, legal practice begins and ends with text.
But over the past five years, for the first time — unrecognized by scholars or courts — creative trial lawyers, receptive judges and the iPhone camera are breaching these conservative bulwarks. Images are moving out of the evidentiary margins, driving argument in litigation documents from pleadings to judicial opinions. Unregulated, visual argument threatens fundamental premises of legal discourse and decision-making. Yet in comparison with law’s rich and detailed traditions for interpreting ambiguous text, lawyers and judges have few tools beyond common sense with which to ameliorate the interpretive risks of visual persuasion. “I know it when I see it” is not merely an aphorism; it is the reigning interpretive canon for images in law.
This Article, the first comprehensive scholarly treatment of images in written legal argument, establishes and critiques the nascent phenomenon of multimedia written advocacy as a vital, if potentially problematic, element of a lawyer’s toolbox. It argues that despite substantial risks, the profession should cautiously embrace the communicative power of multimedia writing. It concludes by offering concrete suggestions for the fair regulation of multimedia persuasion, including two foundational canons of visual interpretation — the basis for developing new traditions for integrating images into written advocacy.

Download the article from SSRN at the link. 

Bach To the Future

Jonathan Yovel, Yale Law School; NYU School of Law, Straus Institute for the Advanced Study of Law and Justice; University of Haifa Faculty of Law, is publishing From Status to Contract: The Unhappy Case of Johann Sebastian Bach in the Canadian Journal of Law and Jurisprudence. Here is the abstract.
In May of 1723, Johann Sebastian Bach was appointed Musical Director and Cantor of the Thomasschule, the city musical academy, in the mercantile city of Leipzig, a laboratory for an emerging self-conscious urban bourgeoisie. Bach departed from a tiny 1700s feudal court, moving to a devout, materialistic, new-money city ecstatic with the sense of its own progress and modernization. Socially and politically, he left behind one Europe and joined another.

Not less significant, although generally ignored by scholarship, was the matter of Bach’s legal status. Up to this point in his career, Bach always served as a status-determined servant within a feudal hierarchy. In Leipzig he signed a contract of employment; no longer a servant, he became an employee. In a sense he embodied Henry Maine’s characterization of modernity as a gradual shift “from status to contract.” And in most respects, his life turned much to the worse.

This essay explores the failings of contract in early modernity through Bach’s case, and especially how contract perpetuated hierarchical social structures he was ostensibly leaving behind. Bach was a modern in his entrepreneurial spirit; to the extent that he finally did manage to take advantage of contract — a later period that coincided with a decline in his liturgical output — that was not due to a supposed “freedom of contract” in any sense of empowerment or even bargaining, but to contract’s relative incomprehensiveness and fracturing of social and professional roles.
Download the article from SSRN at the link. 

Is the Day of the Courtroom Sketch Artist Coming To An End?

From the New York Times' Opinion pages, discussion of a documentary on a courtroom sketch artist and the impact of cameras in the courtroom on his career.

Below, a short bibliography on courtroom sketch artists and the law:

Burnett, M. Dallas, The Utah Federal Court's Ban on Sketching of Courtroom Scenes, 1975 BYU L. Rev. 21.

Caffrey, Denise, United States v. CBS: When Sketch Artists Are Allowed In the Courtroom, Can 
Photographers Be Far Behind? 1975 Duke L.J. 188.

Cohen, Mark C., United States v. Columbia Broadcasting System, Inc.: Courtroom Sketching and the Right To Fair Trial, 10 New Eng. L. Rev. 541 (1974/1975).

Krien, Anna, Drawn Faces, The Monthly, May, 2012.

Moran, Leslie J., Every Picture Speaks a Thousand Words: Visualizing Judicial Authority in the Press, in Intersections of Law and Culture 31 (P. Gisler, S. Steinert Borella, and C. Wiedmer, eds.; Palgrave Macmillan, 2012) (Palgrave Macmillan Socio-Legal Studies).

Stecker, Naseem, The Case of the Disappearing Courtroom Sketch Artist, Michigan Bar Journal, July 2002, at 16. 

Taylor, Karen T. Forensic Art and Illustration (CRC Press, 2001).

See U.S. v. CBS, 497 F. 2d 102 (5th Circ., (1974)) (vacating orders by the lower court that prohibited a artist employed by the network from sketching courtroom scenes and prohibited the network from publishing the artwork.

An examination of the position of the various courts on sketching suggests precisely the opposite conclusion from that reached by the Estes Court. To our knowledge, no state or federal court has prohibited the publication of sketches. Of the eighty federal district courts which have written rules, only three have provided, pursuant to a suggestion in the Kaufman Committee Report, that in certain widely publicized cases the court may direct "that the names and addresses of jurors or prospective jurors not be publicly released except as required by statute,   and that no photograph be taken or sketch made of any juror within the environs of the court." ...We express no views, of course, on the wisdom or validity of such rules, but mention them only to demonstrate that virtually no courts have found it necessary to restrict the publication of sketches. It is also significant that those jurisdictions which have regulated sketching have done so in very narrowly drawn circumstances. Even if we were to determine that sketching presented a danger sufficient to warrant a prior restraint, it is basic constitutional law that the limitation can be no broader than necessary to accomplish the desired goal. ...In the matter sub judice, even though the district court was legitimately concerned with preventing prejudicial publicity from poisoning the impartial atmosphere essential to a fair trial, we conclude that the total ban on the publication of sketches is to remotely related to the danger sought to be avoided, and is, moreover, too broadly drawn to withstand constitutional scrutiny. We hold, therefore, that the portions of the district court's orders which ban the publication of sketches are unconstitutional.
Turning now to the second issue in this appeal, we further hold that in the circumstances of this case the rule which forbids in-court sketching is also invalid. In so doing, we do not question the power of the district court to issue orders regulating conduct in the courtroom. Ordinarily the trial judge has extremely broad discretion to control courtroom activity, even when the restriction touches on matters protected by the First Amendment. ...We are unwilling, however, to condone a sweeping prohibition of in-court sketching when there has been no showing whatsoever that sketching is in any way obtrusive or disruptive. As noted earlier, some districts have adopted narrowly drawn rules applicable only to highly publicized cases. Though this is not the appropriate occasion to pass on the constitutionality of more limited restrictions, we are firmly of the view that the restraint imposed by the court below is overly broad and thus invalid. 

May 12, 2014

Reminder: Law and Magic Conference, June 6, 2014: Registration and Hotel Information

Reminder: The Conference on Law and Magic, co-sponsored by the Law and Humanities Institute and Thomas Jefferson School of Law, takes place on June 6, 2014 at the Thomas Jefferson School of Law, 1155 Island Avenue, San Diego CA 92101. For additional information, please contact Stephanie Marquez at smarquez at tjsl.edu. CLE is being applied for.

Conference hotels are the Hotel Indigo and the Marriott San Diego Gaslamp Quarter, both a short walk from the law school. Click on the links for access to the hotels' reservations pages.

Registration is free for TJSL faculty, alumni, staff, and students, and $20 for all others. Registration includes lunch and the closing reception.

Here is the final schedule of presentations for June 6.

Revealing the Links Between Law and Magic:
A Conference Co-Sponsored by the Law and Humanities Institute 
and the Thomas Jefferson School of Law
June 6, 2014

8:00                 Breakfast and Check-in

8:30-10:00      Panel 1
                        First Amendment and Magic
                        Christine Corcos, LSU Law
                        Paul Finkelman, Albany Law
                        Rob McQueen, University of London
                        Julie Cromer-Young, Thomas Jefferson School of Law, Chair and Discussant

10:15-11:45    Panel 2
                        Law, the Humanities, and Magic
                        Anthony Farley, Albany Law School
                        Richard Weisberg, Cardozo Law School
                        Annette Houlihan, St. Thomas University, New Brunswick (Canada)
                        Christine Corcos, Chair and Discussant

12:00-1:15      Lunch
                        Entertainment by Curt Frye

1:30-3:30        Panel 3
Intellectual Property and Magic
                        Jay Dougherty, Loyola (Los Angeles) Law School
                        Jennifer Hagan, Hagan and Hagan, P.A.
                        Mark Tratos, Greenberg Traurig (via Skype)
                        Pierre Fleury-LeGros, University of LeHavre
                        Guilhem Julia, University of Paris XIII
                        Jay Dougherty, Chair and Discussant
3:45-5:30        Panel 4
                        Magic in the Courtroom
                        Sydney Beckman, Duncan School of Law
                        Curtis Frye, Independent
                        Rostam Neuwirth, University of Macao Faculty of law
                        Julie Cromer Young, Chair and Discussant

5:30-6:30        Closing reception for panelists and attendees

A Conference on Law, Psychoanalysis, and J. M. Coetzee

From our good friend José Calvo Gonzalez, Universidad de Málaga, news of an upcoming Conference in Law and Psychoanalysis to be held in Curitiba (Brazil), and dedicated to J. M. Coetzee's novel Disgrace (1999). 

Doctor Jacinto Nelson de Miranda Coutinho, Professor of Criminal Procedure, Federal University of Paraná, is organizing the conference, which will take place May 28-30, 2014, in the Hall of the Faculty of law of the Federal University of Paraná, a historic building on Santos Andrade Square, Centro, Curitiba-Pr, Brazil. This year the invited speakers are: Lawrence Flores Pereira, Federal University of Santa Maria, Rio Grande do Sul, José Calvo Gonzalez, Universidad de Málaga, Spain, and José Martin, Universidade Lusófona, Lisbon. Portugal.


Conference Schedule

May 9, 2014

Call For Papers: JOTWELL, the Journal of Things We Like (Lots)

From Michael Froomkin, University of Miami Law School:

Call for Papers:

Legal Scholarship We Like,
and Why It Matters

University of Miami School of Law
November 7-8, 2014

JOTWELL, the Journal of Things We Like (Lots), is an online journal dedicated to celebrating and sharing the best scholarship relating to the law. To celebrate Jotwell’s 5th Birthday, we invite you to join us for conversations about what makes legal scholarship great and why it matters.
In the United States, the role of scholarship is under assault in contemporary conversations about law schools; meanwhile in many other countries legal scholars are routinely pressed to value their work according to metrics or with reference to fixed conceptions of the role of legal scholarship. We hope this conference will serve as an answer to those challenges, both in content and by example.
We invite pithy abstracts of proposed contributions, relating to one or more of the conference themes. Each of these themes provides an occasion for the discussion (and, as appropriate, defense) of the scholarly enterprise in the modern law school–not for taking the importance of scholarship for granted, but showing, with specificity, as we hope Jotwell itself does, what good work looks like and why it matters.

I. Improving the Craft: Writing Legal Scholarship

We invite discussion relating to the writing of legal scholarship.
1. What makes great legal scholarship? Contributions on this theme could either address the issue at a general level, or anchor their discussion by an analysis of a single exemplary work of legal scholarship. We are open to discussions of both content and craft.
2. Inevitably, not all books and articles will be “great”. What makes “good” legal scholarship? How do we achieve it?

II. Improving the Reach: Communicating and Sharing

Legal publishing is changing quickly, and the way that people both produce and consume legal scholarship seems likely to continue to evolve.
3. Who is (are) the audience(s) for legal scholarship?
4. How does legal scholarship find its audience(s)? Is there anything we as legal academics can or should do to help disseminate great and good scholarship? To what extent will the shift to online publication change how people edit, consume, and share scholarship, and how should we as authors and editors react?

III. Improving the World: Legal Scholarship and its Influence

Most broadly, we invite discussion of when and how legal scholarship matters.
5. What makes legal scholarship influential? Note that influence is not necessarily the same as “greatness”. Also, influence has many possible meanings, encompassing influence within or outside the academy.
6. Finally, we invite personal essays about influence: what scholarship, legal or otherwise, has been most influential for you as a legal scholar? What if anything can we as future authors learn from this?


Jotwell publishes short reviews of recent scholarship relevant to the law, and we usually require brevity and a very contemporary focus. For this event, however, contributions may range over the past, the present, or the future, and proposed contributions can be as short as five pages, or as long as thirty.
We invite the submission of abstracts for proposed papers fitting one or more of the topics above. Your abstract should lay out your central idea, and state the anticipated length of the finished product.
Abstracts due by: May 20, 2014. Send your paper proposals (abstracts) via the JOTCONF 2014 EasyChair page, https://www.easychair.org/conferences/?conf=jotconf2014.
If you do not have an EasyChair account you will need to register first – just click at the “sign up for an account” link at the login page and fill in the form. The system will send you an e-mail with the instructions how to finish the registration.
Responses by: June 13, 2014
Accepted Papers due: Oct 6, 2014
Conference: Nov. 7-8, 2014
University of Miami School of Law
Coral Gables, FL
Symposium contributions will be published on a special page at Jotwell.com. Authors will retain copyright. In keeping with Jotwell’s relentlessly low-budget methods, this will be a self-funding event. Your contributions are welcome even if you cannot attend in person.