September 18, 2014

Defining Truth

Giorgio Resta, Università degli Studi di Bari, Law Faculty, and Vincenzo Zeno-Zencovich, Roma Tre University, Department of Law, have published Judicial 'Truth' and Historical 'Truth': The Case of the Ardeatine Caves Massacre at 31 Law & History Review 843 (2013).

This paper looks at the relationship between “judicial truth” and “historical truth” from a legal realist perspective. It starts from analysis of a specific case, which is used to highlight the problems arising from the “judicialization” of contemporary history. The case is taken from the Italian post-war experience and consists of a complicated set of controversies which all ensued from the same chain of events: the partisan attack on via Rasella and the Nazi massacre of the Ardeatine Caves (Rome, March 23, 1944). The judgments rendered in these cases are particularly interesting, not only because they extend over a long period of time and span the entire legal system (involving criminal and civil trials), but also because they delineate various judicial “truths” which interact with the interpretation of the same events given by historians. The paper shows how these judicial “truths” were created, how much they varied, and what is their relationship with the projects of identity-building politics. Finally, starting from the analysis of defamation cases against historians, the authors argue that courts should exercise self-restraint in reviewing the results of historical researches and should not be considered as a forum of last resort for the resolution of academic controversies.

Download the article from SSRN at the link. 

September 16, 2014

The Act of Killing

Richard K. Sherwin, New York Law School, has published Law in the Flesh: Tracing Legitimation's Origin to 'The Act of Killing', in No Foundations: An Interdisciplinary Journal of Law and Justice (June 2014). Here is the abstract.

The founding moment of political and legal investiture haunts the baroque and neo-baroque mind, from Shakespeare’s 'Hamlet' to Joshua Oppenheimer’s highly unsettling film, 'The Act of Killing' (2012). In the former, Hamlet finds the resources to act in the face of injustice; in so doing he precipitates a transformative political event that renews the rightful basis for state legitimacy. In 'The Act of Killing', by contrast, restless stasis remains unaltered from beginning to end. It is a state of affairs well suited to contemporary neo-baroque conditions – a time of distracted paralysis, when the availability of the cultural and psychological resources needed to go beyond terror and its purgatorial aftermath remains uncertain.
The exploration of post-secular possibilities requires new experiential sources, new interpretive and critical methods, and new interdisciplinary alliances. Phenomenology, psycho-theology, political theology, and visual jurisprudence are just some of the emerging categories (or perhaps re-emergent fields) that present themselves to us for further consideration.

Download the article from SSRN at the link. 

Columbia and the Charles Beard Thesis

Ajay K. Mehrotra, Indiana University Maurer School of Law, has published Charles A. Beard & The Columbia School of Political Economy: Revisiting the Intellectual Roots of the Beardian Thesis at 29 Constitutional Commentary 475 (2014). Here is the abstract.

A century after it was first published, Charles A. Beard’s An Economic Interpretation of the Constitution remains a significant and controversial part of constitutional scholarship and history. Just as Beard sought to historicize the Founders as they drafted and adopted the Constitution, this article attempts to historicize Beard as he researched and wrote his classic text on the Constitution. Because Beard was both a graduate student and professor at Columbia University before and while he researched and wrote his book, this article explores the particular influence that Columbia University’s institutional and intellectual climate may have had on Beard and the writing of An Economic Interpretation of the Constitution.

This article contends that Charles Beard was the product of a unique Columbia tradition of inductive, proto-institutionalist research in political economy – a tradition that at its core sought to meld serious political and historical scholarship with progressive social activism. Yet, in many ways, Columbia’s influence on Beard was more reinforcing than it was revolutionary. Columbia, in other words, facilitated an evolution rather than a dramatic transformation in Beard’s thinking. His time at Columbia provided him with new scholarly perspectives and research methods, but ultimately these new views heightened his innate tension between scholarly objectivity and political advocacy, between his belief in social scientific research and his desires for social democratic reform. In short, Beard’s time at Columbia, as both a student and junior scholar, refined his personal predilections and his early upbringing and education, rather than radically converting him into a new thinker and writer.

This article was part of a special symposium on the 100th Anniversary of Charles Beard’s An Economic Interpretation of the Constitution, hosted by the University of Virginia’s Miller Center and law school.
Download the article from SSRN at the link. 

Judge Humorous, Are You Pulling My Leg?

Mary B. Trevor, Hamline University School of Law, has published From Ostriches To Sci-Fi: A Social Science Analysis of the Impact of Humor in Judicial Opinions at 45 University of Toledo Law Review 291 (2014). Here is the abstract from SSRN.

In the legal profession, understanding — or at least, formal analysis — of humor and its impact is in its infancy. Lawyers and judges are not trained to use or understand humor, although all would acknowledge that humor, cringe worthy or otherwise, is by no means unknown in the practice of law. But for most intents and purposes, we pretend that humor is not part of legal culture. When humor is addressed in the law school or professional advocacy context, for example, it typically gets short shrift: don’t try to be funny. Resources on judicial opinion writing, in particular, generally advise that humor is inappropriate, and commentators on judicial humor have offered similar, mostly negative, assessments.
Despite this advice, humor, while not widespread, is an ever-present aspect of the body of judicial opinions, an aspect that periodically attracts attention. One of the best-known recent examples is Gonzalez-Servin v. Ford Motor Co., an opinion by Judge Richard Posner of the Seventh Circuit. Multiple counsel in the case had, in Judge Posner’s view, ignored “apparently dispositive precedent” when presenting arguments. Unsatisfied with a mere holding, however, Judge Posner not only verbally compared the tactic to an ostrich burying its head in the sand, but also inserted two photographs into the opinion: one of an ostrich burying its head in the sand, and immediately following, one of a man dressed in traditional “attorney” attire burying his head in the sand. Legal newsletters and blogs picked up on Judge Posner’s opinion, but they were not the only sources to do so. The general press (the Wall Street Journal and the Chicago Tribune) did as well. And such treatment was for an opinion addressing an issue that was not a matter of public interest-forum non conveniens.
Judge Posner does not stand alone in his use of humor. There are even some indications that judicial use of humor in opinions is increasing. And in our era of rapid and widespread electronic communication, public awareness of this humor also appears to be increasing. In light of the evidence of continued use of humor in the face of advice and commentary largely counseling against its use, a reassessment of judicial humor seems warranted.
An additional reason for reassessment at this time comes to us from recent developments in the field of social science, which offers sophisticated tools for the job. In the last few decades, social scientists have greatly expanded the study of humor’s role in our society. Their theories offer new tools to assess judicial humor, to bring together the perspectives of earlier commentators on judicial humor, and to offer more comprehensive guidelines for judicial humor than have previously been offered.
The intent of this article is not to suggest that humor is always, or even often, appropriate in judicial opinions. But social science tells us that, despite the bad name humor has justly acquired based on its use in certain opinions, it may be possible for humor to be used appropriately, and even helpfully, in certain instances.
Download the text from SSRN at the link.

September 15, 2014

A Reading of Kafka's "The Trial"

Robert P. Burns, Northwestern University School of Law, has published Preface for: Kafka's Law: 'The Trial' and American Criminal Justice (University of Chicago Press, 2014). Here is the abstract.
Justice Kennedy famously claimed that Kafka's great work, "The Trial," expressed the reality of the American criminal justice system, at least from the defendant's point of view. This essay, the first sections a book just released by the University of Chicago Press, first summarizes the book's argument that the Justice got it just right, and then provides a close reading of "The Trial." This reading agrees with Hannah Arendt's view that the novel is centrally about institutional issues of justice and that it provides an "organizational gothic" vision of contemporary bureaucratic governance in criminal procedure.
Download the text from SSRN at the link. 

September 9, 2014

Fellowships Available at Princeton University

Princeton University’s Program in Law and Public Affairs (LAPA) invites outstanding faculty members, independent scholars, lawyers, and judges to apply for appointments as resident Fellows for the academic year 2015-2016. We anticipate naming up to six fellows who are engaged in substantial research on topics broadly related to law and public affairs or law and normative inquiry, including one early career scholar working at the intersection of law and humanistic inquiry. Successful candidates will devote an academic year in residence at Princeton to research, discussion, and scholarly collaboration. Applicants must have a doctorate, J.D. or an equivalent professional postgraduate degree.

Further information and the electronic application can be found at


Some New Publications of Interest

William S. Hein & Co. has published Mark Twain vs. Lawyers, Lawmakers and Lawbreakers: Humorous Observations, edited by attorney and author Ken Bresler. The book includes numerous quotations, fully verified, from Twain's writings. Because Twain is one of my favorite writers, I'm looking forward to checking out this new publication. (Full disclosure: Hein is also one of my publishers).

Mr. Bresler is also the author of an article, A Lawyer Looks at Catch-22: The Best Catch There Is Is Not Much of a Catch. While the phrase "Catch-22" has entered the vocabulary, there's not much in the legal literature about the intersection between Heller's novel and the law, so Mr. Bresler's piece is a welcome addition to the scholarship. Here's a link to the work.

September 4, 2014

A Female Prosecutor at the Tokyo War Crimes Tribunal

Shana Tabak, American University Washington College of Law, has published Grace Kanode Llewellyn: Local Portia at the Tokyo War Crimes Tribunal in The George Washington University Law School International and Comparative Law Perspectives at p. 7 (2013). 

Believed to be the first woman ever to figure in the proceedings of an international military tribunal, Grace Kanode Llewellyn served as a Assistant Prosecutor at the International Military Tribunal for the Far East in Tokyo (IMFTE) in 1945-46. This short historical piece explores what is known of Kanode's professional life and her contributions to the then-nascent field of international criminal law.
Download the essay from SSRN at the link. 

Looking at the Law of Slavery and the Nat Turner Rebellion, 1829-1832

Christopher Tomlins, University of California, Berkeley, Jurisprudence and Social Policy Program, has published Revulsions of Capital: The Political Law of Slavery in the Epoch of the Turner Rebellion, Virginia 1829-1832, as UC Berkeley Public Law Research Paper No. 2477048. Here is the abstract.

This paper continues the pattern of work I have been pursuing on the Turner Rebellion, a slave rebellion that took place in Virginia in August 1831. During the past two years I have been engaged in preliminary explorations of different aspects of the rebellion that have resulted in a series of working papers, written to teach myself what I don’t know, and what I should. This paper was written for the same purpose; it differs from prior papers in stepping back from the rebellion itself in order to situate it in Virginia’s constitutional history, and in regard to the debate over gradual emancipation that broke out in its aftermath. Essentially, Virginia in the epoch of the Turner Rebellion is a state divided largely on east-west lines. Slavery dominates east of the Blue Ridge in the long-settled Tidewater and Piedmont; the west (particularly the Trans-Allegheny region that would eventually become the state of West Virginia) is much more recently settled and largely slave-free. This division, together with less marked local slaveholder/non-slaveholder and freeholder/non-freeholder distinctions in the east of the state, largely determines the substance and structure of Virginia’s politics. I consider two “phases” of Virginia’s politics: (1) the Constitutional Convention of 1829-1830, in which Eastern and Western delegates fought over the replacement of county-based apportionment and suffrage that privileged freehold in land by white basis apportionment and white manhood suffrage, and (2) the emancipation debate that took place in 1831-32 during the first session of the state legislature to meet following the Turner Rebellion. I also consider the analysis of the emancipation debate written in 1832 by the William & Mary professor of “political law” Thomas Roderick Dew, Review of the Debate in the Virginia Legislature of 1831 and 1832. I argue that out of the deep divisions exposed by the constitutional and legislative debates there emerged a new political and economic equilibrium, confirmed in Dew’s analysis, and centered not, as before, upon propertied hierarchy but upon property’s commodification, notably commodified labor. In the case of self-possessed white labor, commodification meant increased circulation. The same was true of enslaved labor, with the important qualification that slaves had no control over how far they were circulated. Slavery became transactional – the price of subsistence. Their commodification meant slaves were no longer harnessed to custom (in the shape of common law property claims), or to positive municipal law, or to paternal stewardship, but instead represented a capital investment on which the master-creditor might realize returns either through work, or, just as rationally, sale into the interstate slave trade. The paper concludes with a short analysis of Virginia’s contribution to that trade before and after the Turner Rebellion.

Download the paper from SSRN at the link. 

September 3, 2014

Translations of the United States Constitution

Christina Mulligan, Brooklyn Law School, Michael Douma, James Madison University, Hans Lind, Yale University, and Brian Patrick Quinn, Independent Scholar, have published Founding-Era Translations of the United States Constitution. 

Before its ratification, the United States Constitution was translated into German and Dutch for the German- and Dutch-speaking populations of Pennsylvania and New York. Although copies of both the German- and Dutch-language translations have been preserved, they have largely escaped analysis — and public awareness — until now. This paper provides historical context for these translations and analyzes how they might aid our interpretation of the U.S. Constitution in the present day.
Supplemental to this article is an appendix containing the German and Dutch translations, as well as extensive commentary on the translations, available at

Download the paper from SSRN at the link. 

September 2, 2014

Special Law and Humanities/Film Events At AALS, January 2015

I'd like to alert those of you planning to attend the AALS Annual Meeting in January 2015 to three interesting events taking place during that time. The AALS Film Committee is sponsoring two law and film nights during the meeting. The first, on January 2, at 7:30 p.m. (the first night of the conference), will be a screening of the classic Judgment at Nuremberg, directed by Stanley Kramer, written by Abby Mann, and starring a whole host of great actors, including Spencer Tracy as the thoughtful Chief Judge Dan Haywood, Marlene Dietrich as widowed Mrs. Bertholt, lost in denial, a young William Shatner (in his pre Captain Kirk days), Richard Widmark as the passionate prosecutor Colonel Lawson, Burt Lancaster as Dr. Ernst Janning and Werner Klemperer, two of the German judges accused of war crimes, Judy Garland as Irene Hoffman, a witness nearly overcome by the story she has to tell, and Maximilian Schell as Hans Rolfe, the defense attorney for the judges, who challenges both the prosecutors and the system of justice at every turn. Rolfe poses the ultimate question: in such a high profile trial, in which the stakes include the future of a nation, can these defendants ever get justice? The film dramatizes some of the famous "Nuremberg Trials" held after World War II, in particular those in which judges rather than political and military figures were defendants.

To introduce our film, we are honored to have Professor Harold Koh, Sterling Professor of International Law at Yale Law School. Professor Koh served as Legal Adviser for the Department of State from 2009 to 2013, service for which he received the Secretary of State's Distinguished Service Award. Professor Koh is an expert in the area of national security, international human rights, and foreign relations, areas in which he has written extensively. I will be moderating a discussion afterward of the film for those interested.

On Sunday, January 4th, at 8 p.m. the Committee will sponsor a showing of the 2011 film Hot Coffee, directed by Susan Saladoff. The film recounts the famous lawsuit Stella Liebeck brought against McDonald's when she accidentally spilled some of its excessively hot beverage on herself. Hot Coffee is not just a movie about the torts regime. It's also a film about public relations and the rhetoric that lawyers use in telling stories. Dennis Greene, Professor of Law, University of Dayton School of Law, will moderate the discussion about this provocative and interesting film.

Finally, on Monday, January 5th at 2 p.m. AALS will present a very special event, a Cross-Cutting program, due in great part to the efforts of members of the Law and Film Committee. Professor Michael Olivas, former President of AALS, and current Chair of the Committee, will moderate a panel on the topic Anita F. Hill,  Supreme Court Confirmation Hearings, and a Screening of the Film Anita. Speakers include Professors Taunya Lovell Banks of the University of Maryland School of Law, Jessica Silbey, Suffolk University Law School, and special guest Anita Hill, Senior Advisor to the Provost and Professor Social Policy, Law, and Women's Studies, Brandeis University Heller School for Social Policy and Management. This program also includes a special screening of the film Anita: Speaking Truth To Power (2014).

Professor Hill will also be a special guest at the Section on Minority Groups Luncheon, January 5, 2015, 12 p.m. to 1 p.m.

I will be posting more information about these events as it becomes available.

August 28, 2014

Call For Papers: Special Issue of the International Journal for the Semiotics of Law

From Anne Wagner at the International Journal for the Semiotics of Law:

Expert in Legal Semiotics and Communication, Associate Professor
You are invited to contribute a paper to a special issue of the International Journal for the Semiotics of Law (IJSL) in English, Guest edited by Rafat Y. Alwazna. The special issue will be devoted to deal with issues related to Islamic Law. The themes of the issue include, but are not limited to the following:

• The translatability of Islamic Law
• The linguistic aspects of Islamic texts
• Terms and concepts peculiar to Islamic Law
• Differences in the interpretation of meanings and concepts among the four Sunni Schools of Law
• Legal reasoning within the realm of Islamic Law
• Islamic culture and its influence on Islamic legal rulings

Paper abstracts should be up to 200 words, and full papers should not exceed 15,000 words. All paper abstracts should be sent to

Important Dates:

Deadline for paper abstract submission is 1-10-2014.
Notification of abstract acceptance is 1-11-2014.
Deadline for full paper submission is 1-5-2015.
The special issue is expected to be published in 2015-2016.

For more information about the IJSL, please visit:

Queer Objects: A Symposium With Robyn Wiegman and Annamarie Jagose

From the Australian National University, announcement of a forthcoming Symposium:
‘The rejection of essentialism,’ David Halperin writes in How to be Gay (2012), ‘did not prevent the original founders of queer theory from asking “What do Queers want?”’. In her Object Lessons (2012), Robyn Wiegman explores the political and institutional effects of scholarly attachments to objects of knowledge. Queer theory is, for Wiegman, one of several ‘identity knowledges’ that share a commitment to social justice and that can teach us lessons about what and how we want.
More than two decades after queer theory’s emergence, presenters at this symposium are invited to engage with queer as an objectand with the object lessons of queer theory.
• Camp objects and aesthetics
• Screens and closets
• Queer knowledge: secrets and revelations
• Queer archives and ephemera
• Queer bodies and voices
• Antinormativity
• Queer as death drive / form of life.
For further information and to register your attendance please contact symposium convenor Monique Rooney:

August 26, 2014

ABA Journal Cartoon Caption Contest Open

The ABA Journal is running its September cartoon captioning contest. Submit your caption by September 14, 2014 and receive the title of Champion (for a month at least). See last month's winner here.

The Supreme Court Justice League of America

Per Steve Klepper of Balti­more's Kramon & Graham for the National Law Journal. (Requires subscription to view the entire SC effect). See more of Mr. Klepper's Supreme Court judicial action heroes here at the Maryland Appellate Blog.

August 25, 2014

Register Now For John Jay MOOC On Literature and Law of American Slavery

Registration is now open for John Jay College of Criminal Justice's MOOC (Massive Open Online Course) on the Literature and Law of American Slavery. It is the first ever such course offered. It begins September 30, 2014 and lasts for eight weeks. Distinguished Professor of English John Matteson, who won the 2008 Pulitzer Prize for Biography for his book, Eden’s Outcasts: The Story of Louisa May Alcott and Her Father, designed the curriculum and will lead the course instruction. More here at John Jay's webpage. 

August 18, 2014

Early Modern Ideas of Legal Pluralism

Richard J. Ross, University of Illinois College of Law & University of Illinois, Urbana-Champaign Department of History, and Philip J. Stern, Duke University Department of History, have published Reconstructing Early Modern Notions of Legal Pluralism in Legal Pluralism and Empires, 1500-1850 109-141 (Lauren Benton and Richard J. Ross, eds.; New York: New York University Press, 2013).

Legal pluralism occurs when two or more legal orders exert control within a given territory or over a particular social group and yet are not part of a single hierarchical “system” under a coordinating authority. Most historical scholarship on legal pluralism concentrates on its shifting structures in local contexts and on its political and economic implications. By contrast, our essay probes historical actors’ uses of political and religious thought to justify or undermine plural legal regimes in the late sixteenth through early eighteenth centuries. Historians of early modern political thought preoccupied with the rise of the modern state have lavished attention on ‘centralizing’ discourses, particularly theorists such as Bodin, Hobbes, and Pufendorf represented as champions of sovereignty. Against this tendency, we emphasize how ideological support for plural legal orders could be found in a wide range of intellectual projects. These ranged from debates over the right of resistance and the divine right of rulers, through historical work on the ancient Jewish commonwealth and theological disputes over which precepts “bound conscience,” and finally to writings on political economy and the place of family.

Social scientific and jurisprudential work on legal pluralism has focused a set of canonical problems. Should we focus on jurisdictional or normative accounts of pluralism? How can we distinguish the “legal” from the “non-legal,” a dispute that centers on whether to include in pluralist models the norms of families and civil society organizations? How can we model the complex dialectic relation of state and nonstate systems of order? To the extent that this work relies on a historical account spanning the sixteenth through eighteenth centuries, it assumes that a once rich medieval legal pluralism withered as European statebuilding consolidated crown control of law with the ideological support of theories of sovereignty. The intellectual foundation for — if not the practice of — legal centralism arose in this period. The frequent invocation of Bodin, Suarez, Grotius, Hobbes, and Pufendorf as the founding theorists of sovereignty and legal centralism creates the impression that pluralistic thinking was impoverished or on the wane. The central ambition of our article is to provide an alternative historical genealogy for legal scholars of pluralism. Workaday legal pluralism did not struggle against a predominantly hostile intellectual climate. Many discourses supported pluralism. And the most emphatic theorists of a powerful singular sovereign were often responding to intellectual projects that valorized pluralism.

Download the essay from SSRN at the link. 

August 15, 2014

New Issue of Law and Humanities Now Available

The June 2014 issue (volume 8, no. 1) of Law and Humanities is now available. Here is the table of contents.

Gary Watt, Editorial  at iii.

Ronnie Lippens, The Light of High Modern Discipline: Viewing the Birth, Life and Death of the Disciplinary Society in William Hogarth, Joseph wright of Derby and Edward Hopper  at 1-18.

Barbara J. Shapiro, 'Beyond Reasonable Doubt': The Neglected Eighteenth-Century Context  at 19-52.

Paul Raffield, The Trials of Shakespeare: Courtroom Drama and Early Modern English Law, at 53-76

Desmond Manderson, AD 2014: A Review of Eve Darian-Smith: Laws and Societies in Global Contexts--Contemporary Approaches, at 77-87. 

Leslie J. Moran, Visual Law: A Review of Lief Dahlberg, ed.: Visualising Law and Authority: Essays on Legal Aesthetics, at 88-95.

Ian Ward, Impressions of Bagehot: A Review of Frank Prochaska: The Memoirs of Walter Bagehot (Yale University Press, 2013), at 96-103

Gary Watt, Creative Voices--Student Writing in Law and Literature at 104-110

Sean Mulcahy, Can a Literary Approach to Matters of Legal Concern Offer a Fairer Hearing than that Typically Offered by the Law? at 111-135.

Paul Raffield, Student Lawyer-Playwrights and the Theatre of Law, at 136-145.

Call For Papers: U.S. Feminist Judgments Project

From Bridget Crawford, Pace Law School, comes this Call for Papers:
The U.S. Feminist Judgments Project seeks contributors of revised opinions and commentary for an edited collection entitled Feminist Judgments: Rewritten Opinions of the United States Supreme Court. This edited volume is a collaborative project among feminist law professors and others to rewrite, from a feminist perspective, key Supreme Court decisions relevant to gender issues. Editors Kathy Stanchi, Linda Berger and Bridget Crawford seek prospective authors for 20 to 25 rewritten Supreme Court opinions covering a range of topics including reproductive rights, equal protection, the state’s use of criminal power, privacy, the family, women’s political participation, Title IX, employment discrimination and substantive due process. The editors also seek authors for commentaries of 1,500 to 2,500 words to put into context each of the rewritten cases.
The U.S. Feminist Judgments project was inspired by the successful collection and publication in Britain of Feminist Judgments: From Theory to Practice, edited by Rosemary Hunter, Clare McGlynn, and Erika Rackley. This volume, which included feminist versions of twenty-three key British decisions from the Court of Appeal and House of Lords, was published in 2010 and has been very well received. Like the sister project in Britain, the U.S. Feminist Judgments Project endeavors to pioneer “a new form of critical socio-legal scholarship” that illustrates how cases could have been decided differently had a feminist method been employed. We believe that U.S. Supreme Court law is ripe for this kind of scholarly treatment.
Those who are interested in rewriting an opinion or providing the commentary on one of the rewritten opinions should fill out an application here:
Applications are due by September 15, 2014 at 5:00 p.m. eastern. Editors will notify accepted authors and commentators by October 7, 2014. First drafts of rewritten opinions will be due on February 1, 2015. First drafts of comments on the rewritten opinions will be due on March 15, 2015. The editors are in the process of identifying a publisher; publication of the final volume is anticipated for late 2015.
A list of cases tentatively scheduled for rewriting is available here:
Applicants may indicate their preferences among the list of cases. Applicants also may suggest other cases for rewriting. The tentative cases were chosen with the input and advice of an Advisory Panel of distinguished U.S. scholars including Kathryn Abrams, Katharine Bartlett, Devon Carbado, Mary Anne Case, Erwin Chemerinsky, April Cherry, Kimberlé Crenshaw, Martha Fineman, Margaret Johnson, Sonia Katyal, Nancy Leong, Catharine MacKinnon, Rachel Moran, Melissa Murray, Angela Onwuachi-Willig, Nancy Polikoff, Dorothy Roberts, Dan Rodriguez, Susan Ross, Vicki Schultz, Dean Spade, Robin West, and Verna Williams.

August 4, 2014

Law, Race, and Place

Mae Kuykendall, Michigan State University College of Law, has published Restatement of Place in volume 79 of the Brooklyn Law Review (2014). Here is the abstract.

Images and intuitions of place are ubiquitous in human thought. Dominion over place is one of the first anchors of the conception of law, providing a rationale for sovereign control over defined land boundaries. Place is also embedded in attempts to define rights and regulate conduct. For example, in slave times in the United States, the rights of masters and the duties of slaves were conceived within an assumption of proximity, duties of obedience, and a return consideration of paternalism and care. At the same time, slaves’ bodies became a tradable commodity and their labor an input into commodity pricing on international markets, thereby combining a place-anchored rationale in the governing legal rationalization with faceless commerce across borders in human bodies and forced labor. Ideas about place have increased in visibility in the regulation of the female body, with attempts to map the body and demarcate permissible, or public and observable parts of the body fairly subject to control over a place. With the increased mobility of people, both en masse and using modern travel for individual transit, and with the arrival of cyber reality, the importance of place is in transition. At the same time, place has mystical meanings, manifested in the impulse to claim as sacred sites of death by accident or by mass destruction. The demand is expressed by improvised memorials such as roadside crosses and formal designations of a site such as the World Trade Center for commemoration as well as commerce. Law must mediate the competing interests implicated by differing views of the social needs affecting such sites. This Article explores these and other contexts for the uncertain moral weight in law of place as a guiding factor for rules and decisions. Place has no overarching theory in law. In light of its many contexts, place is a complex and subtle factor in law. The task of fashioning a Restatement of Place across many dimensions is by no means patently manageable, but a sustained effort should bear fruit. The ambiguities in our collective understanding of place as an orienting feature of our legally relevant interactions merit close study, organizing theory, and reformist efforts.

Download the article from SSRN at the link. 

A Playwright's Thomas Jefferson

Mae Kuykendall, Michigan State University College of Law, has published Sandra Seaton's 'A Bed Made in Heaven'; Family, Race, and Law in Nineteenth-Century America in volume 41 of Midwestern Miscellany (2014). Here is the abstract.

This essay seeks to enter into the imaginative understanding created by playwright Sandra Seaton in 'A Bed Made in Heaven', her play about Thomas Jefferson, Sally Hemings, and the familial setting they shared with his children from his marriage with the deceased Martha Jefferson and Hemings’s blood relatives, especially her mother Elizabeth Hemings. Because Seaton creates a portrait of family connection, with foibles, outside pressures, and resentments, she allows a generous reading of Jefferson as a person. In her rendering, he is a man divided between deep loyalty to a family yet unwilling to defy the political force of public opinion. She presents his family debates, in which he asks family members to accept outside forces and insult as a given in their lives and to accept his split between his intimate racial ties and his public support for racist ideas and laws. The result is a generous reading of one family bond. The play does not offer a morally fraught, political and historical assessment of Jefferson as a bad or a good man. Rather, it traces the complex familial history of Americans living today in the legacy of unreadable connections across the pre-Civil War racial divide, many (most) made only of brutality, some of family compromise in a setting that implicates a member in injustice, and all clouded by the enslavement of women family members. Seaton strives to capture the family complexity in the close quarters of Monticello, a home crowded with memories, resentments, and clashing needs and pretensions.

Download the article from SSRN at the link. 

Law and Hispanic Literature: A New Publication

Our friend José Calvo González of the University of Malaga Faculty of Law tells us of the publication of
Derecho y Literatura Hispánica, a special issue of the journal Studi ispanici  for 2014. Professor Calvo is the editor of this 368 page issue which includes the very interesting contents listed below.

José Calvo González
Presentación, pp. 11-20
Jesús Rodríguez-Velasco
Voz Muerta. Poética social y retóricas notariales en las Siete Partidas, pp. 21-40
Maximiliano A. Soler Bistué
A viva voz. La fuerza jurídica del relato en la fazaña castellana bajomedieval, pp. 41-50
Jennifer Darrell
«Contaré un caso»: la justicia y el poder en Lazarillo de Tormes, pp. 51-68
Luis Galván Moreno
La justicia en algunos autos bíblicos de Calderón, pp. 69-80
Antonio Barnés Vázquez
Don Quijote y Preciosa ante lo justo, pp. : 81-90
María Pilar García Negro
Iusfeminismo de Rosalía de Castro como refundación de la Auctoritas: autor, autoría, autoridad, pp. 91-100
Cristina Monereo Atienza
Cuestión social y derechos de la mujer en La esfinge maragata, de Concha Espina, pp. 101-116
Juan Antonio García Amado
Sobre las paradojas inmanentes a todo Derecho. A propósito del cuento La Ley, de Max Aub
pp. 117-128


José Calvo González
Los espectros de Dreyfus en Darío: del non-engagement al non-alignement, en epílogo, pp. 129-148
Carmelo Delgado Cintrón
Dominación colonial y expresión literaria: desde Aleluyas hasta Seva, pp. 149-172
Daniel Rojas Pachas
Ejercicio del poder como arquitectura carcelaria en El Señor Presidente y Arturo, la estrella más brillante, pp. 173-186
Felipe Navarro Martínez
El infierno tan temido y los círculos de la verdad, pp. 187-198 (12)
Roberto González Echevarría
El derecho romano en la constitución de Macondo, pp. 199-214
Peter Popp
Para una lectura jurídico-literaria de Crónica de una muerte anunciada desde la responsabilidad individual y colectiva, pp. 215-230
Daniel J. García López
Los espacios de la norma y los monstruos de Copi, pp. 231-248
Carlos Fradique-Méndez
Casos jurídicos en las "Niñas tristes", pp. 249-264
Felipe Fucito
La pregunta de sus ojos: una concepción del imaginario jurídico, pp. 265-248
Jaime Francisco Coaguila Valdivia
Tramas de violencia en Abril Rojo, de Santiago Roncagliolo, pp. 285-294
Carlos Ramos Núñez
La justicia y los jueces en el Sueño del celta de Mario Vargas Llosa, pp. 295-313


Juan López de Cuéllar y Vega
Declamación histórica y jurídica en defensa de la poesía, pp. 314-336
José Calvo González
Derecho poético en Rosalía de Castro: Vae Victis (Selbstjustiz), pp. 337-340
Claudio Antonio Castañeda, Manuel de J. Jiménez
Sobre la Iuspoética, pp. 341-354

See Walter Run

Scott Shimick, SUNY, Geneseo, is publishing Heisenberg's Uncertainty: An Analysis of Criminal Tax Pretextual Prosecutions in the Context of Breaking Bad's Notorious Anti-Hero, in the Tulsa Law Review. Here is the abstract. 

Commentators have roundly criticized pretextual prosecutions, such as prosecuting Al Capone for tax evasion rather than bootlegging, arguing that the government should minimize the use of pretextual prosecutions. However, pretextual prosecutions serve as a valuable tool for law enforcement.
In Breaking Bad, Walter White becomes a violent criminal who produces and sells narcotics. Throughout the series, he is very careful to conceal or destroy any evidence linking him to the violence and drug trafficking. However, as the bootleggers and gangsters of the Prohibition-era learned, the government holds the trump card, criminal tax prosecution. By charging drug traffickers with criminal tax fraud, the government can imprison dangerous criminals without having to prove beyond a reasonable doubt that the drug traffickers actually produced and sold narcotics. This article examines criminal tax fraud statutes and methods of proof, analyzing these statutes and methods in the context of whether Walter White should have fled from prosecution. Through this analysis, this article demonstrates the value of pretextual criminal tax fraud prosecutions.

Download the article from SSRN at the link. 

Call For Panel and Paper Proposals, Association for the Study of Law, Culture, and the Humanities, 18th Annual Meeting

The Association for the Study of Law, Culture, and the Humanities will hold its Eighteenth Annual Meeting at the Georgetown University Law Center, March 6-7, 2015. 
Panel and paper proposals are due Wednesday, October 15th, 2014. 
Below is a description of the call for papers and proposals, a statement of the Association's mission, and information on registration from ASLCH President James Martel.
The Association for the Study of Law, Culture and the Humanities is an organization of scholars engaged in interdisciplinary, humanistically-oriented legal scholarship. The Association brings together a wide range of people engaged in scholarship on legal history, legal theory and jurisprudence, law and cultural studies, law and anthropology, law and literature, law and the performing arts, and legal hermeneutics. We want to encourage dialogue across and among these fields about issues of interpretation, identity, and values, about authority, obligation, and justice, and about law's role as a constituent part of cultures and communities.
This year, the Association will not have a specific conference theme in order to encourage the broadest range of participation possible.  The Program Committee believes that the diversity of the Association's members is its strength and that the themes that emerge from the conference should arise organically from the various interests of the members, without an overarching subject-matter directive.  Accordingly, we encourage proposals of panels or papers around any of the broad themes that engage with law, culture, and the humanities.  Examples of types of sessions the conference has featured in the past include:
History, Memory and Law; Reading Race; Law and Literature; Human Rights and Cultural Pluralism; Speech, Silence, and the Language of Law; Judgment, Justice, and Law; Beyond Identity; The Idea of Practice in Legal Thought; Metaphor and Meaning; Representing Legality in Film and Mass Media; Anarchy, Liberty and Law; What is Excellence in Interpretation?; Ethics, Religion, and Law; Moral Obligation and Legal Life; The Post-Colonial in Literary and Legal Study; Processes and Possibilities in Interdisciplinary Law Teaching.
However, these should be viewed as examples only.  Any proposals that interrogate law as a cultural form or view law through the lens of the humanities are welcomed.  We urge those interested in attending to consider submitting complete panels, and we hope to encourage a variety of formats, including roundtables, sessions at which everyone reads the papers in advance, sessions in which commentators respond to a single paper, and so on. We also invite proposals for sessions in which the focus is on pedagogy or methodology, for author-meets-readers sessions organized around important books in the field, or for sessions in which participants focus on performance (theatrical, filmic, musical, poetic).
How to register:ASLCH uses a two part registration system (this will all be explained in detail on the website). First you register your paper or panel and pay a $35 membership fee. This should be done by October 15th, 2014, assuming your paper or panel is accepted, you go back to the same website (an email will be sent on that day to remind you) and pay the conference fee. All panelists will be notified about their acceptance before the new year.
Here is the link to register: 

Registration Open for Central States Law Schools Association 2014 Scholarship Conference, October 2014

Registration is now open for the Central States Law Schools Association 2014 Scholarship Conference, which will be held on Friday, October 10 and Saturday, October 11 at the Louisiana State University Law Center in Baton Rouge, Louisiana. We invite law faculty from across the country to submit proposals to present papers or works in progress. Here is a link to the registration page.

CSLSA is an organization of law schools dedicated to providing a forum for conversation and collaboration among law school academics. The CSLSA Annual Conference is an opportunity for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment. More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work. Scholars from member and nonmember schools are invited to attend. 

July 29, 2014

Calling Saul

Breaking Bad's spin-off series, Better Call Saul,will have a delayed premiere date, but not because of network questions about its viability. Instead, its creators are taking additional steps to make certain the show maintains production values. And it already has a green light for a second season.

Meanwhile, Albuquerque, NM, residents can call Saul if they have issues with the cops. His billboard is up in the area (with a lovely photo of series star Bob Odenkirk in the role of "Jimmy McGill," his new name in the show). Or they (and you) can check out his website here (as Saul).

I don't think Saul is the first TV lawyer to have his own website. Ally McBeal's firm Cage & Fish had a website when that show was up and running on Fox; I have been unable to find it on the web, however. Maybe some kind reader will be able to send me a working link.

Better Call Saul will air beginning in early January, 2015, on AMC.

July 26, 2014

His Final Bow

PBS will begin airing the last season's adaptations of Agatha Christie's Poirot novels on July 27. After a quarter of a century, we will say adieu to our old friends Poirot, Hastings, Miss Lemon, and Superintendent Japp. While PBS will not offer the final episode, "Curtain," in which Poirot solves the ultimate case of his career, you can see it as well as all the others at (subscription required). The episodes will be released on DVD later this year.

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 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. 


Simon N. M. Young, Professor, Faculty of Law 

Kelley Loper, Assistant Professor, Faculty of Law

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.