December 30, 2010

New Titles From Hart Publishing; Twenty Percent Discount For Readers Of This Blog!

Two new titles of interest from Hart Publishing:

Steve Greenfield, Guy Osborn, and Peter Robson, Film and the Law: The Cinema of Justice
Pub Date: Oct 2010; 9781841137254; Pbk; 392pp; £30 / €39 / US$30 / CDN$30

http://www.hartpub.co.uk/books/details.asp?ISBN=9781841137254

Paul Raffield, Shakespeare's Imaginary Constitution: Late Elizabethan Politics and the Theatre of Law

Pub Date: Oct 2010; 9781841139210; Hbk; 256pp; £50 / €65 / US$70 / CDN$70

http://www.hartpub.co.uk/books/details.asp?ISBN=9781841139210

Readers of the Law and Humanities Blog qualify for this DISCOUNT OFFER

Hart Publishing is delighted to offer these titles at 20% discount. To receive the discount please quote reference ‘LHBLOG’ when placing your order. If you are ordering online then please quote the reference in the special instructions field. The discount will not show up on your order confirmation but will be applied when your order is processed. All enquires should be directed to Hart Publishing Tel: 01865 517530; E-mail: mail@hartpub.co.uk; Website: http://www.hartpub.co.uk/

December 20, 2010

Law and the Multiverse Scores With New York Times

The blog Law and the Multiverse is featured in the New York Times.

Categorizing the Informant

Michael Rich, Elon University School of Law, has published A Snitch, Not a Hero: Philosophical Lessons of Loyalty and Disloyalty in the World of Criminal Informants, as Elon University Law Legal Studies Research Paper No. 2010-11. Here is the abstract.


Without informants, policing as we know it would grind to a halt. In the arenas of drug enforcement and the battle against organized crime, the majority of prosecutions hinge on confidential informants, and informants are increasingly central in white collar crime prosecutions and anti-terrorism investigations. Yet society, to put it bluntly, hates informants. The epithets used to describe them – “snitch,” “rat,” “weasel” – suggest the reason: the informant, by assisting the police, is guilty of betrayal. But identifying the reason for society’s disdain raises more questions than it answers. For instance, are all informants disloyal, or are only some? Are there governing principles that explain which informants are deemed to be disloyal? To whom are informants disloyal? What import does informant disloyalty have beyond the social stigma that informants bear? And these questions matter because betrayal, in the words of George Fletcher, is “one of the basic sins of our civilization.” Yet, they have largely escaped the attention of legal scholars.



This Article remedies this oversight first by discussing the role of informants through the lens of the observations that philosophers have made about loyalty and disloyalty. The discussion reveals that loyalty and disloyalty are social constructs of normative expectations arising out of special relationships between individuals and other individuals or groups. And when an individual breaches these normative expectations, she commits disloyalty or betrayal. The Article applies these observations about loyalty and disloyalty to three informant situations. The first is the “typical” case of an accomplice-informant who assists police in apprehending and prosecuting her partners in crime. The second is that of communities with particularized norms against cooperating with the police, as exemplified by the “Stop Snitching” movement that has made significant headway in high-crime communities. The third situation is that of informants in “mainstream” society. The loyalty analysis of these three situations reveals interesting insights into why police have trouble obtaining civilian cooperation in high-crime communities and the limits of civilian identification with police objective in mainstream society. Finally, the Article considers these insights in light of existing scholarship about the relationship between civilian perceptions of police and willingness to cooperate. This consideration leads to a handful of policy proposals to enhance civilian cooperation with law enforcement and ultimately to the recognition that some level of reticence to cooperate with police, particularly in marginalized communities, is both inevitable and desirable.
Download the paper from SSRN at the link.

December 16, 2010

Representing Justice: A New Book on the Theme

New book on Representing Justice by Judith Resnick and Dennis Curtis, published by Yale University Press. Pricey but beautiful. Review here from the New York Times. Website here.

December 14, 2010

Court Citation of Foreign Legal Opinions

Martin Gelter, Fordham University School of Law and the European Corporate Governance Institute, has published Language, Legal Origins, and Culture before the Courts: Cross‐Citations between Supreme Courts in Europe as Fordham Law Legal Studies Research Paper No. 1719183. Here is the abstract.

Should courts consider cases from other jurisdictions? The use of foreign law precedent has sparked considerable debate in the United States, and this question is also controversially discussed in Europe. In this paper and within the larger research project from which it has developed, we study the dialogue between different European supreme courts quantitatively. Using legal databases in Austria, Belgium, England and Wales, France, Germany, Ireland, Italy, the Netherlands, Spain, and Switzerland, we have hand-collected a dataset of transnational citations between the highest courts of these countries, in total searching 636,172 decisions decided between 2000 and 2007. In the present paper we show that citation of foreign law by supreme courts is not an isolated phenomenon in Europe, but happens on a regular basis. We found 1,426 instances in which these courts have cited the supreme courts of the other nine countries. The majority (1,077) of these citations have been made for purely comparative reasons. We also undertook regression analysis in order to understand the differences between the cross-citations. Whether such citations take place and in what quantity depends on the particular legal culture and its relationship to others. Austria and Ireland, which stand in an asymmetric relationship with Germany and England respectively, seem to be particularly receptive to foreign influence on their legal systems. But even controlling for these outliers, we have been able to identify that the population of the cited country and a low level of corruption, native languages and language skills, legal origins and families, and cultural and political factors all matter for which courts are likely to be cited. More specifically, knowledge of the language of the cited court appears to be a more important factor driving cross-citations than legal traditions, culture or politics. Thus, to facilitate a transnational market of legal ideas, it can be suggested that courts should strive to make their decisions available in languages that possible readers understand.
Download the paper from SSRN at the link.

December 13, 2010

December 10, 2010

New Books Of Interest

Joe B. Fulton, The Reconstruction of Mark Twain: How a Confederate Bushwacker Became the Lincoln of Our Literature (Louisiana State University Press, 2010).

Gregory J. Hampton, Changing Bodies in the Fiction of Octavia Butler: Slaves, Aliens, Vampires (Lexington Books, 2010).

Tyrone Kirchengast, The Criminal Trial in Law and Discourse (Palgrave Macmillan, 2010).

Richard Terry, The Plagiarism Allegation in English Literature From Butler to Sterne (Palgrave Macmillan, 2010).

Taking "Harry Potter" Seriously

A book by Shira Wolosky on the meaning of Harry Potter. From the Chronicle of Higher Education.

December 8, 2010

Empathy In "To Kill a Mockingbird"

Katie Rose Guest Pryal, University of North Carolina, Chapel Hill, has published Walking in Another’s Skin: Failure of Empathy in to Kill a Mockingbird , in Harper Lee's To Kill a Mockingbird: New Essays, Chapter 12 (Michael J. Meyer ed., The Scarecrow Press, UK, 2010). Here is the abstract.


Empathy - how it is discussed and deployed by both the characters in TKAM and by the author, Lee - is a useful lens to view the depictions of racial injustice in the novel, because empathy is the moral fulcrum on which the narrative turns. In this essay, I argue that To Kill a Mockingbird fails to aptly demonstrate the practice of cross-racial empathy. As a consequence, readers cannot empathize with the (largely silent) black characters of the novel. In order to examine the concept of empathy, I have developed a critical framework derived from rhetorician Kenneth Burke's theory of identification and then used this framework to examine some ways in which empathy manifests itself in our legal system, manifestations that help reveal the failings of TKAM.
Download the essay from SSRN at the link.

December 6, 2010

Brundage On the Image of Lawyers In Medieval Literature

I ran across this piece today; it dates from 2002, so some of you may be familiar with it already. I think it's extremely interesting. It's by James A. Brundage, the distinguished medievalist and cultural historian. In this piece he addresses medieval attitudes toward lawyers, tracing influences back to the Romans. He says in part,

I propose to examine in this paper the faults that medieval writers found with the lawyers they encountered during the high Middle Ages (by which I mean the two centuries between about 1150 and 1350) and to venture some suggestions about the reasons for them.
Before I do that, however, I shall lay the foundation for my remarks by saying something about the treatment of the legal profession in classical Roman literature. This seems appropriate for two reasons: first, medieval lawyers drew much of their law from Roman sources. In the process they modeled many...of their ideas about the ways in which lawyers ought to behave upon the prescriptions for professional conduct that they found in those sources. Second, medieval writers adopted many...of the criticisms of the legal profession that they found in classical Latin literary sources, to which they added new ones of their own.
James A. Brundage, Vultures, Whores, and Hypocrites: Images of Lawyers in Medieval Literature, 1 Roman Legal Tradition 56 (2002).  Highly recommended.

December 3, 2010

The Scottish Enlightment's Influence on the Drafting of Article III

James E. Pfander and Daniel D. Birk, both of Northwestern University School of Law, are publishing Article III and the Scottish Enlightenment, forthcoming in the Harvard Law Review. Here is the abstract.
Historically-minded scholars and jurists invariably turn to English law and precedents in attempting to recapture the legal world of the framers. Blackstone’s famous Commentaries on the Laws of England offer a convenient reference for moderns looking backwards. Yet the generation that framed the Constitution often relied on other sources, including Scottish law and legal institutions. Indeed, the Scottish judicial system provided an important, but overlooked, model for the framing of Article III. Unlike the English system of overlapping original jurisdiction, the Scottish judiciary featured a hierarchical, appellate-style judiciary, with one supreme court sitting at the top and an array of inferior courts of original jurisdiction down below. What’s more, the Scottish judiciary operated within a constitutional framework - the so-called Acts of Union that combined England and Scotland into Great Britain in 1707 - that protected the role of the supreme court from legislative re-modeling.



This Article explores the influence of the Scottish judiciary on the language and structure of Article III. Scotland provided a model for a single “supream” court and multiple inferior courts, and it defined inferior courts as subordinate to, and subject to the supervisory oversight of, the sole supreme court. Moreover, the Acts of Union entrenched this hierarchical judicial system by limiting Parliament to “regulations” for the better administration of justice. Practice under this precursor to Article III’s Exceptions and Regulations Clause establishes that a supreme court’s supervisory authority over inferior courts would survive restrictions on its as-of-right appellate jurisdiction. The Scottish model thus provides important historical support for the scholarly claim that unity, supremacy, and inferiority in Article III operate as textual and structural limits on Congress’s jurisdiction-stripping authority.
Download the article from SSRN at the link.

November 30, 2010

Law and Culture In Israel

Zvi H. Triger, The College of Management Academic Studies (COMAS) School of Law, has published Law's Culture: Reflections on Menachem Mautner's Books on Law and Culture (Hebrew), at 32 Tel Aviv University Law Review 481 (2010). Here is the abstract.

This is a review essay on law and culture in Israel, which takes Menachem Mautner's two recently published books as its departure point for broad analysis of the tensions that characterize Israeli discourse on these issues.
Download the essay from SSRN at the link.

Defamation and Humor

Laura E. Little, Temple University School of Law, is publishing Just a Joke: Defamatory Humor and Incongruity's Promise, in volume 21 of the Southern California Interdisciplinary Law Journal (2011).  Here is the abstract.
Humor often arises as a defense in defamation actions, with defendants claiming that their challenged communication was "just a joke." Given the long established tie between defamation and First Amendment doctrines, United States courts evaluate the defense in light of free speech protections as well as reputational interests incorporated in the elements of the defamation tort. In grappling with humor, courts usually invoke First Amendment doctrine’s familiar distinction between fact and opinion. If a putative joke is sorted down the "opinion" chute, then the humorist faces no civil liability. If, on the other hand, the putative joke suggests false facts unfavorable to the plaintiff, the defendant may face liability. Useful as an analytical starting point, this fact/opinion dichotomy does not adequately integrate all the values and concerns that come into play where humor and defamation law collide.



Humor is complex, capable of both great good and enormous mischief. The challenge whether to provide legal protection for humorous communications implicates the same value clashes between freedom of expression and protection of reputational interests that appear in other defamation contexts. Yet humor’s potential for individual and collective benefit (as well as its capacity to cut deep wounds) suggests that courts should tailor analysis specifically to humor’s unique qualities. Happily, assistance comes from centuries of interdisciplinary scholarship dedicated to understanding humor. In particular, humor scholarship’s core concept - incongruity (the juxtaposition of two or more unlikely ideas) - helps to calibrate an optimal balance of First Amendment concerns and the values of human dignity, property, and honor in defamatory humor cases.



Assistance for United States courts also comes from an unlikely source - Australia. Australian cultural emphasis on humor and plain speaking as well as its lack of a formal First Amendment enables Australian case law to provide meaningful guidance both affirmatively and negatively, as a foil for identifying what analysis is not well suited to United States common law and constitutional traditions.
Download the article from SSRN at the link.

Call For Papers

From McGill University's IPLAI

International Conference on Arts, Ideas, and the Baroque


Hosted by the Institute for the Public Life of Arts and Ideas, McGill University

in collaboration with the Montréal Baroque Festival

24-26 June 2011



2011 Theme: Deadly Sins



CALL FOR PAPERS

This conference seeks to examine the ‘baroque’ in the early modern world as well as its echoes and resonances across time. Defined differently by different academic traditions, the notion of the baroque remains a point of reference as well as contention, and a signifier of cultural legacy as well as innovation – as in the notion of the ‘neo-baroque’. We propose to investigate the rich artefacts, representations, and influence of the era—particularly around the theme of Deadly Sins (also the theme of the 2011 Montréal Baroque Festival to be held in conjunction with this conference). We invite papers which address interdisciplinary scholarship and make new connections between research fields. Proposals from scholars working in all disciplines might address, but are not limited to, the following fields:





Musicology and Music Performance

Law and Legal History

Social and Cultural History

Literature

Architecture and Design

Theatre and Performance

Art History

Religious Studies

History of Science and Medicine

Philosophy





Proposals for complete panels as well as for individual papers in English or French are welcome. Researchers are invited to submit abstracts of no more than 250 words, and brief (2 page) cvs to: baroque@mcgill.ca. Deadline for submissions: 5 February 2011.

IPLAI is a new undertaking by McGill University’s Faculties of Arts, Education, Law, Management and Religious Studies and the Schools of Architecture and Music. Its goals are to foster collaborative, interdisciplinary scholarship and teaching in the humanities, to reinvigorate the place of humanities scholarship in public discourse, and to examine the life of ideas across time.



The Montreal Baroque Festival is a unique festival celebrating the creativity, expressiveness and inspiration of music-making in the seventeenth and eighteenth centuries. The chapels, crypts, chateaux, cafes, cellars, attics, gardens and streets of Old Montreal are brought to life with operas, oratorios, recitals, improvisations and jam sessions performed by an international roster of brilliant musicians.



Conference Registration Fee: $60 (faculty); $25 (students)

Online registration will open March 2011

http://www.mcgill.ca/iplai/
http://www.montrealbaroque.com



November 24, 2010

Making"The Wire" Meaningful

I. Bennett Capers, Hofstra University School of Law, is publishing Crime, Legitimacy, Our Criminal Network, and the Wire in volume 8 of the Ohio State Journal of Criminal Law (2011).Here is the abstract.


It perhaps comes as no surprise that, at a gathering of four criminal law professors over drinks and dinner, the subject would turn to the HBO series The Wire. The four of us - Susan Bandes, Jeff Fagan, David Alan Sklansky, and myself - were part of a larger group of about twenty or so criminal professors invited to participate in the University of Chicago’s Criminal Justice Roundtable, and after a full day of discussing each other’s scholarship, we were eager to discuss something else. So we raved about The Wire. Then we lamented the fact that, to our knowledge, there had never been a law conference devoted to The Wire, or even a symposium issue in a law journal. The series certainly raises enough criminal law and criminal procedure questions to warrant such a project. But even more importantly, The Wire does something else. I once argued that “law and order” shows can have a type of "de-shadowing" effect. There is the justice administered by the courts. And there is the justice that the courts imagine they are regulating. Law and order shows, especially the ones that give the illusion of being police procedurals, are uniquely positioned to critique this justice. Law and order shows, at their best, bring out of the shadows the justice that actually exists. No show does this better than The Wire.



That night, drinks in hand, the four of us agreed to put together a panel proposal to discuss The Wire at a Law and Society Conference. The four of us became five with the addition of my colleague Alafair Burke. And Burke, as a professor and a prolific mystery writer with connections we could only dream about, in turn brought in her friend David Simon, the creator of The Wire. What followed was one of the most well-attended panels at Law and Society this past year. What followed too was a mini-symposium in the Ohio State Journal of Criminal Law, and this Essay, which examines The Wire to explore issues of perceptual legitimacy and crime rates, how the Rules of Evidence often frustrate police brutality cases, and the challenge of being a criminal law and procedure professor after watching The Wire.
Download the article from SSRN at the link.

Reflections On "The Wire"

Alafair S. Burke, Hofstra University School of Law, is publishing I Got the Shotgun: Reflections on The Wire, Prosecutors and Omar Little. in the Ohio State Journal of Criminal Law (forthcoming). Here is the abstract.



The Wire is a show about institutions, the people trapped inside of them, and a society made static by their inaction, indifference, and ineptitude. Whether the series was exploring the drug trade, police departments, city hall, unions, or public schools, the individual actors within those systems were depicted as having little control over either the institutions or their individual fates within them. As a result, the constituencies supposedly served by those institutions continually got the shaft.



To say that The Wire is about the tolls of unmitigated capitalism and inflexible bureaucracies is not to say, however, that the show is silent on, or indifferent to, the criminal justice system that encompasses its main characters. I became especially intrigued by an episode in the first season in which police and prosecutors rely on the testimony of Omar Little in a murder trial, despite doubts about Omar’s first-hand knowledge of the crime. This essay is a reflection on the depiction of law enforcement in The Wire, both generally and with respect to the single scene that first made me a Wire addict.
Download the article from SSRN at the link.

November 16, 2010

Science Fiction and the Detective Novel

From the New Scientist, April 30, 2010: The ten greatest science fiction detective novels. Among them: Philip Kerr's A Philosophical Investigation, Kristine Kathryn Rusch's The Retrieval Artist novels (don't they count as more than one?), and Isaac Asimov's The Caves of Steel. What are your favorites?

Literary Appearances

Meet a new police detective, Scott Cowen of the Brick Township, NJ, police force. He's a character in James Patterson's newest novel, Cross-Fire. If he reminds you of Scott Cowen, President of Tulane University, don't urge President Cowen to sue for defamation, or false light, or infringement of his right of publicity, or any of that good stuff. Dr. Cowen paid for the privilege of appearing in the book.  A great way to raise money for your school.

Food Wars

Ernesto Hernandez Lopez, Chapman University School of Law, has published LA’s Taco Truck War: How Law Cooks Food Culture Contests as Chapman University Law Research Paper No. 10-29. Here is the abstract.


This paper examines the Los Angeles “Taco Truck War” (2008-9), when the city of Los Angeles and LA county used parking regulations to restrict “loncheros,” i.e. “taco trucks.” It describes the legal doctrine used by courts to invalidate these local restrictions. The California Vehicle code makes local food truck regulations illegal. Decades of court decisions affirm this. The paper sheds light, legal and cultural, on food truck debates, which will surely expand nationwide. It examines: the cultural and business arguments for food truck regulations; food’s role in migrant, community, and national identities; Mexican food’s influence in California culture; and recent trends in food trucks such as Koggi BBQ.
Download the paper from SSRN at the link.

The Origins of Legal Language

Peter Tiersma, Loyola Law School (Los Angeles), has published The Origins of Legal Language in the Oxford Handbook on Language and Law (L. Solan and P. Tiersma, eds., 2010). Here is the abstract.



This paper examines the origins of legal language. It begins with a discussion of language in the civil law system, which originated in Rome, was refined in Byzantium, rediscovered in Italy, codified in Prussia and France, and ultimately spread throughout most of Europe and, via colonialism, to many other parts of the world. The common law, which developed in England, was heavily influenced by Anglo-Saxon invaders, Latin-speaking missionaries, and French-speaking Normans. Its language also took root in much of the world via the British empire. Finally, we discuss what might be called mixed legal systems, and we conclude by speculating on the possible effects of globalization on the languages of law.
Download the chapter from SSRN at the link.

November 12, 2010

Criminal Law and "The Wire"

Susan A. Bandes, DePaul University College of Law, and Florida State University College of Law, has published And All the Pieces Matter: Thoughts on The Wire and the Criminal Justice System, in volume 8 of the Ohio State Journal of Criminal Law (2011). Here is the abstract.




The standard police procedural, even including great dramas like NYPD Blue and Hill Street Blues, adheres to time-honored narrative conventions. It focuses on good if sometimes imperfect cops trying to find the real bad guys - the perpetrators - and bring them to justice. A crime had ruptured the social fabric, and at the end of the episode, guilt is determined and things are put to right. The standard procedural is concerned mainly with individual fault and heroism. It does not raise disquieting questions about the criminal justice system, the legal system, or the social and political arrangements that lead to a permanent underclass. There are eight million stories in the Naked City, and in the police procedural, every one of them stands on its own.



The Wire is a different kind of television. It aims not to reassure but to unsettle, or as David Simon once put it, "to pick a fight." Unlike the standard police procedural, which resolves a discrete problem every week, The Wire keeps widening its lens to reveal the context in which crime and policing take place. Although the show begins as a description of an actual wiretap, the series soon turns out to be about a series of interlocking systems, wired for dysfunction.



The Wire is deeply concerned with institutions, how they constrain the shape of individual lives, and how they perpetuate themselves, often at the expense of achieving their legitimate goals. However, although the show’s most cherished subject is the institutional roadblocks to good policing, The Wire defies the standard paradigm in this regard as well. It is not one of those cop shows that reflexively portray constitutional rights as annoying hindrances to law enforcement. Other shows tell us that cops need free rein; that we ought to trust their instincts and keep the government and the Constitution off their backs. This show vividly demonstrates that those instincts are sometimes misguided or self protective and that the right kinds of limits can play an important role in good police work.
Download the article from SSRN at the link.


This essay is an exploration and appreciation of The Wire’s remarkable portrait of the criminal justice system, with particular attention to its insights about policing and criminal procedure. It uses the chess lesson scene from Season One, “The King Stay the King,” as a starting point.

The Meaning of Words

Philip A. Rubin, Duke University Law School, has published War of the Words: How Courts Can Use Dictionaries in Accordance with Textualist Principles, at 60 Duke Law Journal 167 (2010). Here is the abstract.

Dictionaries have an aura of authority about them--words mean what the dictionary says they mean. It therefore seems only sensible that courts seeking the plain meaning of language would look to dictionaries to find it. Yet to employ dictionaries as objective sources of meaning is to use them in a manner inconsistent with their creation and purpose. Previous scholarship has identified the Supreme Court’s increasing reliance on dictionaries in construing statutes and constitutional provisions, and several articles have discussed different inherent problems with this practice. This Note builds upon that scholarship by bringing together the problems identified in prior articles, by identifying additional problems, and by proposing a set of best practices for courts seeking to use dictionaries in a manner consistent with textualist principles. Unless a principled approach is adopted, judges invoking dictionaries in textualist analysis are open to criticism for, at best, using dictionaries incorrectly - and, at worst, using them to reach their preferred outcomes.
Download the note from SSRN at the link.

November 11, 2010

Indiana University Center for Law, Society & Culture Accepting Applications for Jerome Hall Postdoctoral Fellowship

The Center for Law, Society, and Culture at the Indiana University Maurer School of Law—Bloomington will appoint up to three Jerome Hall Postdoctoral Fellows for the 2011-2012 academic year. We invite applications from pre-tenure scholars, recently awarded PhDs, and those with equivalent professional degrees to conduct research at Indiana University and participate in the activities of the Center, which include an annual symposium, a colloquia series, and regular workshop series.



Scholars of law, the humanities, or social sciences working in the field of sociolegal studies are encouraged to apply. Advanced graduate students may also apply, but evidence of completion of the doctoral degree or its equivalent is required before beginning the fellowship. The Center encourages applications from scholars focusing on global or transnational law and society research projects. Fellows will devote a full academic year to research and writing in furtherance of a major scholarly project. The stipend will be $25,000 plus a research allowance, health insurance, other benefits, and workspace at the Maurer School of Law. Fellows are expected to be in full-time residence in Bloomington in order to take advantage of the rich intellectual life of the Center, the Maurer School of Law, and Indiana University.



A complete application consists of: (1) a research proposal (up to 10 pages); (2) curriculum vitae (with address and complete contact information); and (3) three letters of recommendation (must be sent separately)



Applications should be sent to:

Jerome Hall Postdoctoral Fellowship Program

Center for Law, Society, and Culture

Indiana University Maurer School of Law—Bloomington

211 S. Indiana Avenue

Bloomington, IN 47405



Completed applications must be received by Jan. 3, 2011, in order to ensure full consideration. The award will be announced in mid March 2011.



For more information, contact Hallpd@indiana.edu



Additional information about the Indiana University Center for Law, Society & Culture, and the Jerome Hall Postdoctoral Fellowship can be found at:

http://law.indiana.edu/centers/lawsociety/postdoctoral-fellowship.shtml

November 10, 2010

Cloning and Talmudic Law

Barbara P. Billauer, Foundation for Law and Science Centers, Inc.; Institute of World Politics, has published Human Reproductive Cloning: The Intersection of Kaballa, the Bible and Biology - Parable, Exegesis and Modern Science


Under traditional Jewish Law (halacha), assessment of human reproductive cloning (HRC) has been formulated along four lines of inquiry, which I discussed in Part I of this paper. There, I analyzed five relevant doctrines of Talmudic Law, concluding that HRC fails to fulfill the obligation ‘to be fruitful and multiply’ and should be strictly prohibited. In part II, I reviewed the topic from an exigetical Biblical and Kabbalistic perspective, beginning with exploring comments of the Ramban (Nachmanides) which suggest Kabbalistic insights very much in keeping with current biology. I expand on the interrelationship of the reproductive faculties of an organism and its soul by examining the development of the spiritual states of plant, animal and human and noting the commensurate evolution with its reproductive facilities. Speculating that the reproductive mechanism of each species is indelibly related to its soul-state, I suggest that interfering with human sexual reproduction by HRC has the same effect the Ramban argues is the result of Kilayim (interbreeding), i.e., wrecking havoc with the Universe.



In this Part III, I postulate a biologic explanation for warnings found in the Golemic Literature and suggest that these allude to the importance of maintaining human genetic diversity through sexual reproduction. The conclusions I reached after evaluating the propriety of HRC under a Kabbalistic/metaphysical index comports with those I reached using a traditional legal /halachic inquiry in Part I. Thus, both systems arrive at the conclusion that HRC is in violation of the divine and natural order and constitute a distinct biological threat to the survival of the human species, a conclusions in accord with current scientific thinking.
Download the paper from SSRN at the link.

Portia's View of Justice in "The Merchant of Venice"

Roberta Linciano, University of Salento, has published "'Is that the law?': Portia's Mockery of Justice in The Merchant of Venice," in the Italian Society for Law and Literature (January 2010). Here is the abstract.



In this paper I examine the role performed by the disguised lawyer Portia during the trial Shylock vs. Antonio in Shakespeare’s The Merchant of Venice. With reference to the social, political and economic background of the Elizabethan age, I will explore Portia’s conception of justice, trying to assess if she acts as a loyal and equitable judge or as a vile impostor and investigating to what extent her conduct can be regarded as a model by modern lawyers or as a mere play upon the words.
While the paper should be available for download via SSRN, I could not get the download to work.

Graduate Student Stipends Available for ASLCH Conference Next Spring

Reminder




The Association for the Study of Law, Culture, and the Humanities will award up to eight $200 travel stipends to graduate students who plan to present work at the 2011 ASLCH Conference, March 11-12, in Las Vegas, Nevada. In awarding these stipends, the Committee will take into consideration both the merit of the proposed paper and the applicant's proximity to the conference site. Graduate students wishing to apply for a travel stipend should submit the following:

• contact information (including both home and institution addresses)

• a Curriculum Vitae (CV)

• a proposed paper title and abstract

• information about the session to which the proposal is attached, if any

• information about other funds the applicant will likely receive to assist in conference attendance, if any

Please send applications for the stipend electronically to Professor Paul A. Passavant, Department of Political Science, Hobart and William Smith Colleges, Passavant@hws.edu by November 15, 2010.

Stipends will be awarded no later than January 14, 2011 in order to allow recipients to make their travel arrangements.





Paul A. Passavant

Associate Professor

Department of Political Science

Hobart and William Smith Colleges

300 Pulteney St.

Geneva, NY 14456

USA

November 9, 2010

Sherlock Holmes and the Evil Heir

Stephen R. Alton, Texas Wesleyan University School of Law, has published The Game is Afoot!: The Significance of Gratuitous Transfers in the Sherlock Holmes Canon. Here is the abstract.


This article presents a recently discovered and previously unpublished manuscript written by John H. Watson, M.D., and annotated by Professor Stephen Alton. Dr. Watson’s manuscript records an extended conversation that took place between the good doctor and his great friend, the renowned consulting detective Mr. Sherlock Holmes, regarding issues of gratuitous transfers of property – issues involving inheritances, wills, and trusts – that have arisen in some of the great cases solved by Mr. Holmes. This felicitous discovery confirms something that Professor Alton has long known: these gratuitous transfer issues permeate many of these adventures. Often, the action in the case occurs because of the desire of the wrong-doer to come into an inheritance, a bequest, or the present possession of an estate in land more quickly – perhaps by dispatching the intervening heir, beneficiary, or life tenant. Professor Alton has annotated this manuscript, providing extensive analysis of these issues and citations to relevant, contemporary authority in his footnotes.
Download the paper from SSRN at the link.

November 8, 2010

Law, Neuroscience, and Magic

A new book on that very interesting new topic, neuroscience and magic. Stephen Macknik and Susana Martinez-Conde have published Sleights of Mind (Henry Holt, 2010)  about what happens in our brains when our eyes deceive eyes. Magicians and con men (and women) have known about this for centuries, but scientists and lawyers are just now beginning to take note. for more check out an article from The Scientist, here and the Law and Magic Blog here, here, here, and here.

Kafka, Foucault, and Writing as Resistance

Nicholas Dungey has published Franz Kafka and Michele Foucault: Writing as Resistance as a Western Political Science Association 2010 Annual Meeting Paper. Here is the abstract.

One of the most pressing challenges to Foucault's notion of the self and disciplinary power concerns the issue of resistance. If, as Foucault argues, the self is wholly constituted by disciplinary power and practices, then what possibility exists for resistance to such power and practices? While this is a difficult challenge, Foucault insists that resistance is part and parcel with the happening of disciplinary power. In order to illuminate Foucault's observations about resistance I turn to Kafka' letters and diaries. I contend that Kafka wrote as a way of resisting the influence of disciplinary power and practices. Kafka wrote in order to do battle with the forces he found himself constituted by, and in the process, redefine the field of battle, and re-describe the terms and discourse in which the battle was fought. Kafka wrote, and struggled to write, as a way of resisting the domination of disciplinary power operating on him. I contend that Kafka might have been aware, like Foucault, that there was no final victory, no heroic escape or triumph from the battle. Therefore, Kafka wrote not to overcome the battle, but rather as the only legitimate response to the forces of 'isciplinary (sic) power. Writing was Kafka's way of struggling valiantly.
The full text is not available on SSRN.

November 4, 2010

Telling Stories About the Founders

Tom Donnelly, Harvard Law School, has published Our Forgotten Founders: Reconstruction, Public Education, and Constitutional Heroism, at 58 Cleveland State Law Review 115 (2010). Here is the abstract.


This Article examines a set of constitutional stories that has not been the subject of focused study by legal scholars — the stories we tell our schoolchildren about the Founding and Reconstruction. These stories offer new clues about the background assumptions that elite lawyers, political leaders, and the wider public bring to bear when they consider the meaning of the Constitution. Since the early twentieth century, our leading high school textbooks have tended to praise the Founding generation and canonize certain Founding Fathers, while, at the same time, largely ignoring Reconstruction’s key players and underemphasizing the constitutional revolution these “Forgotten Founders” envisioned (and began to wage). As a result, generations of students have been left with a relatively pristine view of the Founding, while receiving (at best) a “warts-and-all” account of Reconstruction. These disparate accounts (presented for decades in our classrooms) have helped to construct a constitutional culture that reveres the Founding generation, but gives short shrift to their Reconstruction counterparts.
Download the article from SSRN at the link.

Adam Smith and the Judiciary

Robin Paul Malloy, Syracuse University College of Law, has published Adam Smith in the Courts of the United States, at 56 Loyola Law Review 33 (2010). Here is the abstract.


Be it on topics of property, contract, commerce, trade, tax, legal history, or other matters, jurisprudence in the United States often invokes economic thinking in providing a rationale for legal outcomes. Consequently, I wondered how often the appeal to economic thinking in the courts included a reference to Adam Smith, the founder of modern economics. This essay traces the citations to Adam Smith in the judicial opinions of the Federal Courts starting with the first two cases to cite Smith in 1796; 214 years ago. The essay provides a brief contextual discussion about Smith and the way in which he has been cited over the years. This is followed by a report on the full set of citations to Adam Smith in the case opinions of the Federal Courts and in the legal briefs filed in those cases.



Between the years 1796 and 2009, Adam Smith is directly referenced in 162 cases, and in legal briefs filed in 213 cases. Over time Smith is cited for different purposes. He is cited in case opinions dealing with a range of topics including: tax, trade, commerce, labor, antitrust, and private property. The way in which Smith is referenced over time also changes. In general, references to Smith shift over time as he goes from being an authoritative reference on matters of taxation to being a mere iconic punctuation point in the arguments of those seeking to promote free markets and laissez-faire.



The article offers quotations from case opinions and establishes a record of Adam Smith’s appearances in the Courts of the United States. Interestingly, 70% of the citations to Smith occur since 1970. Hopefully, the article will be a fun piece to read no matter what one’s specialized research or teaching area may be.
Download the article from SSRN at the link.

October 26, 2010

Slavery As Immigration

Rhonda V. Magee, University of San Francisco Law School, has published Slavery as Immigration? in volume 44 of the University of San Francisco Law Review (2009). Here is the abstract.


Slavery as Immigration? In this essay, the author argues that transatlantic slavery was, in significant part, an immigration system of a particularly pernicious sort – a system of forced migration immigration aimed at fulfilling the nascent country's needs for a controllable labor population, and desire for a racialized one. As such, the law and policy of chattel slavery should be viewed as perhaps the most important historical antecedent to contemporary immigration law regarding low- and unskilled labor in the United States. Following an analysis of the treatment of chattel slavery in general immigration history scholarship, and in scholarship on the history of immigration law, the author concludes that immigration law texts must include a discussion of chattel slavery that properly locates that system as a forerunner of modern immigration law and policy, and immigration scholars should devote more attention to chattel slavery. She concludes with a discussion of the broader implications of such a reframing for the American national community as a whole.
 Download the article from SSRN at the link.

Audio Files Available For Morawetz Book On Law and Literature

Now available from Wolters/Kluwer: Audio Files to accompany Thomas Morawetz's book Literature and the Law (originally published 2007). More here.

October 22, 2010

Some New Books of Interest

Some new books of interest

The Creation of the "IUS Commune": From "Casus" to "Regula" edited by John W. Cairns and Paul J. du Plessis (John W. Cairns and Paul J. du Plessis, eds. Edinburgh University Press, dist. Columbia University Press, 2010).


Jackson, Cassandra, Violence, Visual Culture, and the Black Male Body (Routledge, 2010).


Kidd, Thomas S., God of Liberty: A Religious History of the American Revolution (Basic Books, 2010).

Kohl, Christiane, The Witness House: Nazis and Holocaust Survivors Sharing a Villa During the Nuremberg Trials (Other Press, 2010). Translated by Anthea Bell.


Lerner, Josh, and Mark Schankerman, The Comingled Code: Open Source and Economic Development (MIT Press, 2010).



Livingston, James D., Arsenic and Clam Chowder: Murder in Gilded Age New York (State University of New York Press, 2010).

Mackedon, Michon, Bombast: Spinning Atoms in the Desert (Black Rock Institute Press, distributed by Museum of New Mexico Press, 2010).




Savage, Robert J., A Loss of Innocence? Television and Irish Society, 1960-72 (Manchester University Press, dist., Palgrave Macmillan, 2010).

Titone, Nora, My Thoughts Be Bloody: The Bitter Rivalry Between Edwin and John Wilkes Booth That Led to an American Tragedy (Free Press, 2010). 

October 20, 2010

Theory of Sovereignty In the Hebrew Bible

Geoffrey P. Miller, New York University School of Law, has published Sovereignty and Conquest in the Hebrew Bible, as NYU School of Law, Public Law Research Paper No. 10-61. Here is the abstract.


This article examines the Hebrew Bible’s theory of sovereignty with special reference to the book of Joshua. The author conceives of sovereignty as the exclusive and absolute control over territory. The sovereign is “all Israel” – the biblical analogue to “we the people.” The territory is the land promised to the Patriarchs and partially conquered by Joshua in the war of conquest. Israel’s title to this territory is established vis-à-vis foreign nations by boundary agreement (Aram), partition (Ammon and Moab), abandonment (Edom), and renunciation (Egypt); its right to dispossess the prior inhabitants is based on theories of conquest, capacity, appropriation, grant, promise, purchase and contract. Israel’s control over territory is explored in narratives describing the allocation of the Promised Land. The author’s approach is pragmatic rather than programmatic, stressing the value of fair procedures and recognizing arguments for distributive justice based on merit, equality, productivity, expectations and need. The author argues that a property distribution, even if fair ex ante, must also be accepted as reasonable ex post.
Download the full text from SSRN at the link.

Documentary Films, Law and Justice

Cynthia D. Bond, The John Marshall Law School, has published Documenting Law: Reality & Representation on Trial. Here is the abstract.


Documentary films frequently address issues of social and political injustice; thus, however indirectly, implicating law as their subject. Documentary film and legal process also frequently share formal similarities as they both seek to reconstruct actual events through representational techniques. Thus, notions of the truth are deeply overdetermined in documentary films about law. To most lay spectators, such documentaries are truth-seeking systems (documentary film) depicting a truth-seeking system (law). Thus, it is particularly useful to analyze the impressions of law lay spectators gain (or confirm) from these films since, given the truth claims of documentaries, spectators may more fully trust images of law in them than in fiction film. Documentaries engage different strategies in ignoring, negotiating, or acknowledging the overdetermined sources of truth they contain. First, many documentaries mount a competing narrative of truth, contesting the ability of legal processes to adequately find the truth (a dynamic this article dubs “Film vs. Law”). Alternatively, documentaries may contest law’s truth claims without fully supplanting them with their own purportedly superior access to truth (“Film and Law”). These films both critique the truth claims of the legal process while acknowledging the inevitably open-ended and provisional nature of the events they reference. Finally, documentaries may underline the shared representational techniques of law and film to reveal the vexed nature of accessing the truth in both realms (“Film = Law”). These three documentary strategies are defined in part by the stylistic choices the films make, and by the on- and off-screen performance of the filmmaker’s relationship with his or her subject. Yet regardless of a particular documentary film style, the notion of the truth of depicted events is an inescapable element of the documentary narrative.
Download the full text from SSRN at the link.

October 19, 2010

Summer Institute in Legal History and Post-Doc at Wisconsin

Hurst Summer Institute in Legal History at Wisconsin


Next two week biennial session will take place in June 2011; apply by 1/15/11.

Complete information and application instructions can be found at

http://law.wisc.edu/ils/hurst_institute.htm



The Hurst Summer Institute in Legal History is a biennial event sponsored by the Institute for Legal Studies at the University of Wisconsin Law School in conjunction with the American Society for Legal History (ASLH). A committee appointed by the ASLH reviews applications from early-career faculty members, doctoral students with completed or nearly completed dissertations, and recent J.D. graduates demonstrating interest in an academic career with a focus on legal history, and selects 12 promising scholars as Institute Fellows. The Fellows come to Madison for two weeks in June to participate in daily seminars, meet other legal historians, and analyze and discuss each others work. Each biennial Institute is organized and chaired by senior legal historians and includes visiting scholars who lead specialized sessions.



The purpose of the Hurst Summer Institute is to advance the approach to legal scholarship fostered by J. Willard Hurst in his teaching, mentoring, and scholarship. The Hurst Summer Institute assists scholars from law, history, and other disciplines in pursuing research in legal history. It also develops teaching skills by deepening the understanding of legal history and developing methods for incorporating it into the law school and undergraduate history curriculum. More importantly, it provides junior faculty a unique opportunity to work closely over an extended period of time with distinguished senior faculty and thus continue the tradition of excellence in research, teaching, and mentoring others. Finally, the Hurst Institute establishes relationships and cultivates a network of scholars for mutual support throughout their careers.

______________________________________________________________



Law and Society Post-Doctoral Fellowship at Wisconsin

One-year fellowship for early-career scholars who work in the "law and society" tradition and who will be competing for university-level teaching jobs in the U.S. market.

For 2011-12 academic year, apply by 1/7/11.

Complete information and application instructions can be found at:

http://law.wisc.edu/ils/lawandsocietyfellowship.html



The Institute for Legal Studies of the University of Wisconsin Law School will appoint a post-doctoral fellow for the 2010-11 academic year. We invite applications from scholars who are in the early (pre-tenure) stage of their career or whose careers have been interrupted or delayed. Eligibility is limited to humanities or social science scholars who work in the law and society tradition, for example, anthropologists, economists, historians, political scientists, and sociologists. Advanced ABD graduate students may apply, but the PhD must be completed before beginning the fellowship. The stipend will be $25,000, plus a research allowance of $5,000 and benefits that include health insurance.



The fellowship is designed to support a scholar at an early stage in his or her career when, under prevailing circumstances, career pressures or teaching responsibilities might divert the individual away from research. At the Institute, the Fellow will be able to devote most of his or her time to research and writing and will find a sympathetic and critical audience to support that work. Fellows are expected to be in full-time residence in Madison, to organize and lead a colloquium for graduate students, and to participate in the intellectual life of the Institute, which includes lectures, workshops, and conferences.



This fellowship is intended for early career social science and humanities scholars whose research contains a strong legal component and who plan to compete for a University teaching position in the U.S. market. Non-US citizens may apply, but must meet the stated criteria.



Howard S. Erlanger

Director, Institute for Legal Studies



Professor of Sociology &

Voss-Bascom Professor of Law

University of Wisconsin - Madison

October 11, 2010

New Law and the Humanities Books From Ashgate Publishing

New books available or due out soon from Ashgate Publishing:

Cathrine O. Frank, Law, Literature, and the Transmission of Culture in England, 1837-1925 (2010)

Christopher Frank, Master and Servant Law: Chartists, Trade Unions, Radical Lawyers and the Magistracy in England, 1840-1865 (2010)

Kelly Hager, Dickens and the Rise of Divorce: The Failed Marriage Plot and the Novel Tradition (2010)


Henry Ansgar Kelly, Law and Religion in Chaucer's England (2010) (Variorum Collected Studies Series; CS957)

Dennis R. Klinck, Conscience, Equity and the Court of Chancery in Early Modern England (2010)

Bridget M. Marshall, The Transatlantic Gothic Novel and the Law, 1790-1860 (January 2011)

Call For Papers

1st Global Conference


Queer Sexualities

13th to 15th May 2011

Warsaw, Poland



Call for Papers

20 years since the reclamation of the word 'queer'

by the LGBTQ community this conference would like to take a closer look at broad themes of queer sexualities through time and space, non-normative sexual constructions and queer sexual identities from a diverse range of perspectives by scholars working in various academic disciplines. Yet our meaning of the word queer is not limited to the non-mainstream sexuality as we opt for inclusion of 'unusual'

heterosexual practices into the 'queer domain' in order not to discriminate but understand, include and accept.



Papers, reports, work-in-progress and workshops are invited on issues related to the following themes:



* the role of historical forces in shaping queer

sexuality(ies)

* historiography of queer sexualities

* the politics of queer sexualities

* queertopias and the politics of gender

* queer identities/sexualities in literature and art

* queer sexualities and the body - literary and non-literary

* representations and resistances of non-normative corporeality

* beyond queer sex and sexuality

* queerotica vs. queerporn

* queer sexualities and performativity

* queer sexualities and age

* queer sexualities and theory (queer theory, straight queer theory,

* sexuality studies, disability studies, feminist perspective, fat studies etc.



The Steering Group particularly welcomes the submission of pre-formed panel proposals. Papers will also be considered on any related theme.

300 word abstracts should be submitted by Friday 26th November 2010. If an abstract is accepted for the conference, a full draft paper should be submitted by Friday 1st April 2011.



300 word abstracts should be submitted

simultaneously to both Organising Chairs; abstracts may be in Word, WordPerfect, or RTF formats with the following information and in this

order:



a) author(s), b) affiliation, c) email address, d) title of abstract, e) body of abstract.

E-mails should be entitled: QS1 Abstract Submission.



Please use plain text (Times Roman 12) and abstain from using footnotes and any special formatting, characters or emphasis (such as bold, italics or underline). We acknowledge receipt and answer to all paper proposals submitted. If you do not receive a reply from us in a week you should assume we did not receive your proposal; it might be lost in cyberspace! We suggest that you look for an alternative electronic route or resend.



Organising Chairs



Malwina Degórska (Conference Leader)

English Department

University of Szczecin

Szczecin, Poland

E-mail: mdegorska@gmail.com



Barbara Braid

English Department,

University of Szczecin,

Szczecin, Poland

E-mail: barbara.braid@gmail.com



Rob Fisher

Network Founder and Network Leader,

Inter-Disciplinary.Net, Oxfordshire, United Kingdom.

E-mail: qs@inter-disciplinary.net



The conference is part of the At the Interface programme of research projects. It aims to bring together people from different areas and interests to share ideas and explore various discussions which are innovative and exciting. All papers accepted for and presented at the conference will be eligible for publication in an ISBN eBook. Selected papers may be developed for publication in a themed hard copy volume(s).



For further details about the project please visit:

http://www.inter-disciplinary.net/at-the-interface/gender-and-sexuality/queer-sexualities/
For further details about the conference please visit:


http://www.inter-disciplinary.net/at-the-interface/gender-and-sexuality/queer-sexualities/call-for-papers/

October 7, 2010

"Outlaw" Debuts

The Blog of Legal Times takes aim at Outlaw, Jimmy Smits' new legal drama on NBC. Pow! Smash! Bam! Generally, BLT doesn't like the new show. Here's an excerpt.

Maybe it was when Jimmy Smits' character, Supreme Court Justice Cyrus Garza, got into an argument with a comely American Civil Liberties Union lawyer who was picketing a public appearance of his -- followed shortly by the two of them sleeping together.

Or maybe it was the scene in which a U.S. senator ominously threatens Garza with impeachment or bodily injury if he votes a certain way on a pending case. Or it could have been a dozen other scenes in which NBC's new show "Outlaw," which aired last night, asks viewers not just to suspend their disbelief but throw it out the window. The show in every way seemed to fulfill most critics' expectations, which were that 'Outlaw' is a stinker that won't and shouldn't last longer than it takes to say non compos mentis.


Other reviews here: from the Sun-Sentinel; from the Seattle Post-Intelligencer; from the New York Post; from the Boston Herald.

I decided to watch the premiere (which I missed) and another episode online. After about fifteen minutes, I threw in the towel. Never mind that Smits' character has little of the affect of a Supreme Court Justice. Never mind that a real Supreme Court Justice is not likely to allow a young woman to flounce about in his anteroom or sit seductively on his desk. Never mind that a Supreme Court Justice is likely to come on to a woman he doesn't know in public. Ick. And what awful procedural slips. An SCJ does not issue a stay of execution AND send the case back for retrial all by his lonesome. Yes, yes, I know, legal dramas don't have to be completely true to life, but this show really does veer pretty far from what I at least can accept, much as I love legal shows and TV drama in general. What can other viewers accept?

I also watched the second episode as aired. This one I liked a little better. The acting, I thought, good. Mr. Smits always amazes me, and the rest of the cast is good. But again, the plot was average.

"Outlaw" should be outlawed. I give it (maybe) one more episode. Too bad. I like Jimmy Smits as an actor. He needs better material than this.

October 5, 2010

Popular Culture In University Teaching

From the Chronicle of Higher Education's Tweed Blog, professors who use popular culture in their teaching.

Narrative and Truth in the Documentary

Cynthia D. Bond, The John Marshall Law School, has published Documenting Law: Reality & Representation on Trial. Here is the abstract.

Documentary films frequently address issues of social and political injustice; thus, however indirectly, implicating law as their subject. Documentary film and legal process also frequently share formal similarities as they both seek to reconstruct actual events through representational techniques. Thus, notions of the truth are deeply overdetermined in documentary films about law. To most lay spectators, such documentaries are truth-seeking systems (documentary film) depicting a truth-seeking system (law). Thus, it is particularly useful to analyze the impressions of law lay spectators gain (or confirm) from these films since, given the truth claims of documentaries, spectators may more fully trust images of law in them than in fiction film. Documentaries engage different strategies in ignoring, negotiating, or acknowledging the overdetermined sources of truth they contain. First, many documentaries mount a competing narrative of truth, contesting the ability of legal processes to adequately find the truth (a dynamic this article dubs “Film vs. Law”). Alternatively, documentaries may contest law’s truth claims without fully supplanting them with their own purportedly superior access to truth (“Film and Law”). These films both critique the truth claims of the legal process while acknowledging the inevitably open-ended and provisional nature of the events they reference. Finally, documentaries may underline the shared representational techniques of law and film to reveal the vexed nature of accessing the truth in both realms (“Film = Law”). These three documentary strategies are defined in part by the stylistic choices the films make, and by the on- and off-screen performance of the filmmaker’s relationship with his or her subject. Yet regardless of a particular documentary film style, the notion of the truth of depicted events is an inescapable element of the documentary narrative.
Download the paper from SSRN at the link.

The Nuremberg Trials in Historical and Cultural Context

Christiane Wilke, Carleton University, Department of Law, has published Reconsecrating the Temple of Justice: Invocations of Civilization and Humanity in the Nuremberg Justice Case, at 24 Canadian Journal of Law and Society 181 (2009). Here is the abstract.

The Nuremberg Trials provide the foundation for contemporary international criminal law. Yet these trials are rarely explored in their broader ideational and social context. This article examines the context and role of the concept of “civilization” as used in U.S. v Altstoetter, the 1947 trial of Nazi judges and judicial administrators at Nuremberg. I place the reference to civilization in Altstoetter within a tradition of international law that understood law and civilization as co-constitutive. The Altstoetter Court conceptualized Germany as an essentially civilized country that lapsed into barbaric and therefore lawless violence. This account helped the Court to establish the blameworthiness of the defendants’ conduct, blame the Nazi violence on lawlessness, and establish its own authority.
Download the article from SSRN at the link.

A New Book on Law and the Bible

Recently published by Jonathan Burnside, God, Justice, and Society: Aspects of Law and Legality in the Bible (Oxford, 2010). Here is the abstract.

What is the real meaning of 'an eye for an eye and a tooth for a tooth'? Where did the idea for the 'Jubilee 2000' and 'Drop the Debt' campaigns come from? And what, really, are the 'Ten Commandments'? In God, Justice, and Society , Jonathan Burnside looks at aspects of law and legality in the Bible, from the patriarchal narratives in the Hebrew Bible through to the trials of Jesus in the New Testament. He explores the nature of biblical law, legal thinking, and legal institutions by setting the biblical texts in their literary, social, and theological context.



Burnside questions the biblical texts from the perspective of an academic lawyer and criminologist and asks what the biblical materials contribute to our understanding about the nature and character of law. He examines much of biblical law and narrative that has formed the basis of Western civilization, while at the same time exploring differences between biblical law and modern legal concepts and legal assumptions. The resulting book is a cross-disciplinary analysis which recognizes the integration of law and theology.



God, Justice and Society presents biblical law as an integration of instructional genres in the Bible which together express a vision of a society ultimately accountable to God. Burnside seeks to understand both the application of law and legal theory to the Bible and the extent to which biblical law contributes important insights into legal dilemmas in today's world.



A holistic teaching website to support this book, containing downloadable resources, is available at www.seekjustice.co.uk.

October 1, 2010

Why Films About the Wrong Side of the Law Are So Appealing

From the New York Times, an article on the history and evolution of the crime film.

Protecting Intellectual Property "In Progress"

Nathan Murphy, University of Connecticut, has published Thème Et Varaations: Why the Visual Artists Rights Act Should Not Protect Works-in-Progress, at 17 UCLA Entertainment Law Review 110 (2010). Here is the abstract.

Many countries recognize "moral rights," which allow artists some level of control of their art after it is sold, for example by guaranteeing that their work’s authorship is acknowledged and that it cannot be modified without their permission. In contrast to Europe, where they have long existed, these rights have only been broadly recognized in American law since 1990, when Congress enacted the Visual Artists Rights Act (VARA).



Although other parts of VARA have received extensive scholarly attention, one question that has been essentially overlooked is whether VARA applies to unfinished works of art. This is surprising, because it has been central in some of the most well-known VARA decisions. Until very recently, those opinions that could have weighed in on the issue have also avoided it. But given how often the issue arises, courts could not avoid it forever, and in late January of 2010, the United States Court of Appeals for the First Circuit decided in Massachusetts Museum of Contemporary Art v. Büchel, No. 08-2199, 2010 WL 297834 (1st Cir. Jan 27, 2010), that VARA fully applies to works-in-progress, from the first stroke of the artist’s brush onward.



Although some authors have rejected the doctrine of "moral rights" wholesale, that is most decidedly not the aim of this paper. Instead, its central argument is that VARA does not (and should not) apply to any works-in-progress, regardless of whether these works would (or should) be protected in finished form. Although this implies that that MassMoCA was wrongly decided, the argument is much broader. Indeed, the MassMoCA opinion’s cursory analysis belies the fact that the question of works-in-progress is very complex. Accordingly, this paper examines VARA’s statutory history, contemporary art theory, and the economic underpinning of the unique American moral-rights framework and concludes that they all suggest no VARA protection for works-in-progress. Further, this reading is (counterintuitively) most consistent with the statute’s aim to protect artists’ moral rights. Unlike with completed art, "moral rights" in unfinished works are protected existing legal remedies.
Download the article from SSRN at the link.

The History of Fair Use

Matthew Sag, DePaul University College of Law, has published The Pre-History of Fair Use. Here is the abstract.

This article reconsiders the history of copyright’s pivotal fair use doctrine. The history of fair use does not in fact begin with early American cases such as Folsom v. Marsh in 1841, as most accounts assume - the complete history of the fair use doctrine begins with over a century of copyright litigation in the English courts. Reviewing this ‘pre-history’ of the American fair use doctrine leads to three significant conclusions. The first is that copyright and fair use evolved together. Virtually from its inception, statutory copyright went well beyond merely mechanical acts of reproduction and was defined by the concept of fair abridgment. The second insight gained by extending our historical view is that there is in fact substantial continuity between fair abridgment in the pre-modern era and fair use in the United States today. These findings have substantial implications for copyright law today, the principal one being that fair use is central to the formulation of copyright, and not a mere exception.



The third conclusion relates to the contribution of Folsom v. Marsh itself. The pre-modern cases illustrate a half-formed notion of the derivative right: unauthorized derivatives could be enjoined to defend the market of the original work, but they did not constitute a separate market unto themselves. Folsom departs from the earlier English cases in that it recognizes derivatives as inherently valuable, not just a thing to be enjoined to defend the original work against substitution. This subtle shift is important because while the boundaries of a defensive derivative right can be ascertained with respect to the effect of the defendant’s work on the plaintiff’s original market, the boundaries of an offensive derivative right can only be determined with reference to some other limiting principle. This extension of the derivative right may well have been inevitable. It seems likely that as more and more derivatives were enjoined defensively, courts and copyright owners began to see these derivatives as part of the author’s inherent rights in relation to his creation. In other words, once copyright owners were allowed to preclude derivatives to prevent competition with their original works, they quickly grew bold enough to assert an exclusive right in derivative works for their own sake. A development which, for good or ill, bridges the gap between pre-modern and modern copyright.
Download the article from SSRN at the link.

Another Review of David Rabban's Law's History

Roy Kreitner, Harvard University Institute for Global Law and Policy, and Tel Aviv University, Buchmann Faculty of Law, has published Heroes, Anti-Heroes, and Villains, at  1 Jerusalem Review of Legal Studies 96 (2010). Here is the abstract.


This is Roy Kreitner's contribution to the symposium on David Rabban's book “Law’s History: Late Nineteenth-Century American Legal Scholarship and the Transatlantic Turn to History”.
Download the article from SSRN at the link.

A Review of David Rabban's Law's History

Ron Harris, Tel Aviv University, Buchmann Faculty of Law, has published The Politics of Historical Narratives: Comment on David Rabban’s Law’s History at 1 Jerusalem Review of Legal Studies 81 (2010). Here is the abstract.

This is Ron Harris's contribution to the symposium on David Rabban's book “Law’s History: Late Nineteenth-Century American Legal Scholarship and the Transatlantic Turn to History”.
Download the article from SSRN at the link.

September 30, 2010

Socrates

Ah, the Socratic Method, pedagogical tool beloved of law students. NOT. Angus Kennedy examines some new books devoted to the life and legacy of Socrates here, who is supposed to have annoyed those around him with that device so much that they told him to begone permanently. Well, he did some other things that annoyed his neighbors too. Notes Mr. Kennedy, "In Plato’s Meno, Socrates offends a man called Anytus by suggesting that even great men such as Themistocles and Thucydides were not capable of teaching their sons to be good. Anytus warns him to be careful, that he is ‘too ready to speak evil of men’. It was Anytus who brought the prosecution against Socrates in 399 BC, on charges of impiety and corrupting the youth, which led to Socrates’ execution."

Science and the Criminal Mind

In The Chronicle of Higher Education, Evan R. Goldstein reviews Douglas Starr's new book exploring the origins of criminology, The Killer of Little Shepherds.

September 29, 2010

Storytelling Across the Curriculum

Carolyn Grose, William Mitchell College of Law, has published Storytelling Across the Curriculum: From Margin to Center, from Clinic to the Classroom, in volume 7 of the Journal of the Association of Legal Writing Directors (2010). Here is the abstract.

Narrative theory and storytelling can be used throughout the law school curriculum, cutting across types of courses and types of lawyering. I teach skills, doctrinal, and clinical courses, and I use narrative theory and storytelling in all three, always with the same goal: to help students recognize that as lawyers, they are not only hearers and tellers of stories, but also, and perhaps most important, constructors of stories.



I use the term “narrative theory” to describe the study of story construction, which is different from - though clearly related to - story telling. Construction is the act of building: putting together the elements that comprise the story and then writing it down. Performance of the story - reading it, telling it, enacting it - comes later.




In this piece, I develop the idea of using storytelling across the curriculum to teach students critical thinking and reflection about their role as lawyers. In Part One, I describe the importance of storytelling and stories in the craft of lawyering. Part Two describes my own teaching in the context of narrative theory and practice, and it analyzes how and why this context achieves the goal of developing students’ critical thinking skills and reflective practice. The piece concludes with the suggestion that narrative theory and storytelling as a pedagogy used systematically across individual courses and the curriculum has the potential to transform a student’s experience of law school, resulting in her development as an empowered, reflective, and socially responsible member of the legal profession, regardless of the kind of law she practices or the kinds of clients she represents.
Download the article from SSRN at the link.

The Magic of the Courtroom

The Eleventh Judicial Circuit and Miami-Dade County reached back--far back--to re-enact Al Capone's perjury trial. Partly out of nostalgia, and partly out of a sense of the importance of the law, the people involved took on key roles in the decades-old proceeding to bring key figures to life. In the peanut gallery, some adults with an interest in Capone, and in the historic, and some ninth graders who may now know who Al Capone was. Or not. More here from the New York Times.

September 28, 2010

The Trial

From the New York Times, an account of the legal battle over Franz Kafka literary legacy. The parties: the National Library of Israel and the heirs of Max Brod, who handled Mr. Kafka's estate.

September 23, 2010

Camus' "The Outsider" and Criminal Punishment Theory

Emlyn Walter Cruickshank, Australian National University College of Law, has published Dialogues of Indifference: Albert Camus' 'The Outsider' and Criminal Punishment Theory , as ANU College of Law Research Paper No. 10-29. Here is the abstract.
This paper was written as an honours paper under the supervision of Dr Tony Connolly.

Upon reading Albert Camus’ 'The Outsider', the curious feeling arises that despite his indifference at having killed a man, Meursault is not the real villain of the story. The villains are those who punish him and the institution through which this punishment is administered. This feeling rests upon a strong sense of injustice – a sense that the institution of law did not treat Meursault as it could have, and certainly not as it should. Camus thereby raises genuine issue that philosophers of criminal punishment ought to be concerned with.

Camus articulates an improper and absurd administration of punishment. In so doing he gives an alternate framework with which to appraise prevailing theories of criminal punishment. My primary thesis is that those sympathetic to Camus' existentialist concern should be more inclined toward punishment justified as communicative retribution. The theories of utilitarianism and other variants of retributivism - intrinsic desert, unfair advantage and censure - are either disinterested in the behaviour of Camus' court or implicitly condone it.

Secondarily, and by necessary implication, I advocate the worth of an interdisciplinary approach to the development of jurisprudential thought generally. Building upon the Law and Literature movement, this paper impresses the value in using critical images of the law cast by existentialist literature in order to determine the theoretical framework which best justifies the existence of a legal practise and regulates the adjudicative processes through which it is administered. Further, it examples how this can be achieved.


Download the paper from SSRN at the link.

September 20, 2010

Prison, Hip Hop, and Islam

SpearIt, Saint Louis University School of Law, has published Spreading the Faith: Music and Culture, in Muslims in U.S. Prisons (Nawal Ammar, ed.; Lynne Rienner Publications) (forthcoming). Here is the abstract.

This chapter argues that prison and hip hop culture are major factors in the popularity and growth of Islam in the United States. The connections among Islam, prisons, and hip hop culture are profound, and all three share a deeply intertwined history; the more one studies Islam in the U.S., the student will be led to the powerful sanctuaries of prisons and hip hop culture, where Islam’s presence is pronounced. This work combines textual analysis of musical cultural productions and scholarly research on prison culture to show hip hop and prison culture as two primary sites of religious conversion. In these cultural spheres, Islam has found a steady stream of new recruits which contribute to Islam as the fastest growing religion in the United States.


The full text is not currently available from SSRN.

September 17, 2010

New Legal Literary Prize

The University of Alabama School of Law is launching a prize to honor the best book in legal fiction published in the year. It is named after Harper Lee, the author of the iconic To Kill a Mockingbird. The first prize will be given out next year, to the book published in 2010 that "best exemplifies the role of lawyers in society and lawyers' power to effect change."

More here.

September 14, 2010

"Wired" At Harvard

Two instructors at Harvard are using HBO's "The Wire" as fodder for a course in urban inequality. One of them, William Julius Wilson, wrote the book that serves as inspiration for the show's second season. More here, picked up by the Washington Post.

Julien Mezey Dissertation Awards: Submissions for Nominations Open

Julien Mezey Dissertation Award
NEW SUBMISSION DEADLINE: 1/11/11

The Association for the Study of Law, Culture and the Humanities invites submissions for its 2011 Julien Mezey Dissertation Award. This annual prize is awarded to the dissertation that most promises to enrich and advance interdisciplinary scholarship at the intersection of law, culture and the humanities. The award will be presented at the Association's 2011 annual meeting, which will be hosted by the University of Nevada, Las Vegas on March 11-12.

The Association seeks the submission of outstanding work from a wide variety of perspectives, including but not limited to law and cultural studies, legal hermeneutics and rhetoric, law and literature, law and psychoanalysis, law and visual studies, legal history, legal theory and jurisprudence. Scholars completing humanities-oriented dissertations in SJD and related programs, as well as those earning PhDs, are encouraged to submit their work. Applicants eligible for the 2011 award must have defended their dissertations successfully between September 1, 2009 and August 31, 2010.

The deadline for nominations for the 2011 award is November 1, 2010. On or before that date, each nominee must submit the following:

1) a letter by the nominee detailing the genesis, goal, and contribution of the dissertation;
2) a letter of support from a faculty member familiar with the work;
3) an abstract, outline, and selected chapter of the dissertation;
4) contact information for the nominee.

All materials should be sent to:
Professor Tucker Culbertson, tbculber@law.syr.edu

Award finalists will be notified by December 1, 2010. Finalists must then submit an electronic version of the entire dissertation. The winner will be determined by early February and invited to the 2011 ASLCH annual meeting in Tempe. ASLCH will pay travel and lodging costs.

Questions should be addressed to Professor Tucker Culbertson, tbculber@law.syr.edu

September 13, 2010

The "Dexter" Defense

Lewis Unglesby, the defense attorney for a seventeen year old Louisiana man accused of murder, says viewings of the Showtime series "Dexter" influenced his client. Police seized DVDs of the show at the defendant's home. Mr. Unglesby entered a "not guilty by reason of insanity" plea for his client in early July. More here from the Baton Rouge Advocate.

The problem? Dexter is a serial killer who eliminates other serial killers. Mr. Unglesby's client is accused of murdering an eight-year-old.

Call For Papers

CALL FOR PAPERS

11th International Roundtable for the Semiotics of Law

‘Intercultural Awareness in Legal Language’

Conference Venue: Public Law Department – School of Law of Fluminense Federal University – UFF (Niterói/Rio de Janeiro – Brazil)

Dates: 11-13 November 2011

Hosted by Evandro Carvalho (Brazil)
Co-organizer: Anne Wagner (France)


The 2011 roundtable will focus on the contribution of legal semiotics to discuss the different ways of thinking the "legal" in a world's cultural diversity.

Aware of the III World Forum of the Alliance of Civilizations, held in Brazil in May 2010, that had the intention to rethink how to deal with tensions between cultures and promote trust and understanding between heterogeneous communities, the 11th Roundtable intend to put together scholars of legal semiotics to discuss the influences of cultural and linguistic diversity on the construction of meaning in national law and international law.

It is hoped that the papers will reflect the interdisciplinary nature of legal semiotics research as well as the challenges of working in the field. In this context, proposals from a wide variety of semiotic perspectives are invited. These might include but are not limited to papers on:

• The contribution of legal semiotics across cultures
• The problem of multilingualism
• Semiotics and comparative law
• Legal semiotics and the processes of normative integration
• Semiotics of international relations
• Semiotics and competition of languages in international relations
• Language, power and diplomacy
• Translating legal concepts across cultures: the case of contract terminology or case of land law terminology.
• The misuse of language in the judicial process, in legal adjudication
• The use of metaphors in legal language

Young researchers working in related areas are particularly encouraged to participate.

In the interest of a cohesive round table, prospective participants are requested to adhere to the theme as outlined in the call for papers.

Proposals in either English, Spanish, French or Portuguese (max 300 words) should be sent only by e-mail by 15 May 2011 to irsl2011@gmail.com, evandro.carvalho@gmail.com and to Anne Wagner (valwagnerfr@yahoo.com).

Selected papers will be published in a special annual issue in English and/or French of the International Journal for the Semiotics of Law (http://www.springer.com). The length of the paper should not normally exceed 7000 words, including references, footnotes, and appendices, if any. Please follow the style sheet for the International Journal for the Semiotics of Law (Visit the website at http://www.springer.com/law/journal/11196)

Contact Anne Wagner, Ph. D., Associate Professor, Université du Littoral Côte d'Opale (France)
Research Professor, China University of Political Science and Law (Beijing - China)
http://fr.linkedin.com/in/annewagner


Editor-in-Chief of the International Journal for the Semiotics of Law - http://www.springer.com/law/journal/11196
Series Editor, Law, Language and Communication - Ashgate Publisher (http://www.ashgate.com/Default.aspx?page=3916)
President of the International Roundtables for the Semiotics of Law - http://www.semioticsoflaw.com/
Editor for SemiotiX New Series - http://semioticon.com/semiotix/
International collaborator, International Commercial Arbitration Practices - http://144.214.44.26/arbitration/arbitration/index.html

Call For Papers

Laurent de Sutter, FWO Senior Researcher, Law, Sciences, Technology & Society,
Faculty of Law, Vrije Universiteit Brussels, has issued a call for papers for a collection that he is editing for Routledge (with the help of law publisher Colin Perrin) concerning “Althusser & Law”. A few years ago, in an essay published in a volume in French called “Politique et philosophie dans l’oeuvre de Louis Althusser”, Etienne Balibar called for a systematic study of the existing relationships between law and Althusser’s life and work. This project is an attempt to answer this call, and to begin a first exploration of this yet totally unexplored topic. He is currently looking for an enlarged set of contributors - although a few major international althusserians have already agreed to contribute : Luke Ferretter, Warren Montag and William S. Lewis to begin with.

If you are interested, he would be delighted to provide you with further details about it.

Contact him at the address below.

Laurent de Sutter
FWO Senior Researcher
Law, Sciences, Technology & Society
Faculty of Law
Vrije Universiteit Brussel
Pleinlaan 2
1050 Brussels
Belgium

ldesutter at hotmail.com

September 7, 2010

The Semantics of Vattel's International Law

Vincent Chetail, Graduate Institute of International and Development Studies, has published Vattel and the Semantics of International Law: A Critical Reconstruction (Vattel et la Sémantique du Droit des Gens: Une Tentative de Reconstruction Critique) in Vattel's International Law in a XXIst Century Perspective (Vincent Chetail & Peter Haggenmacher, eds., Brill) (forthcoming). Here is the abstract.


The article explores the influence of Vattel on the development of public international law.


Download the chapter from SSRN at the link.

Storytelling in the Law School Curriculum

Carolyn Grose, William Mitchell College of Law, has published Storytelling Across the Curriculum: From Margin to Center, from Clinic to the Classroom in volume 7 of the Journal of the Association of Legal Writing Directors (2010).

Narrative theory and storytelling can be used throughout the law school curriculum, cutting across types of courses and types of lawyering. I teach skills, doctrinal, and clinical courses, and I use narrative theory and storytelling in all three, always with the same goal: to help students recognize that as lawyers, they are not only hearers and tellers of stories, but also, and perhaps most important, constructors of stories.

I use the term “narrative theory” to describe the study of story construction, which is different from - though clearly related to - story telling. Construction is the act of building: putting together the elements that comprise the story and then writing it down. Performance of the story - reading it, telling it, enacting it - comes later.

In this piece, I develop the idea of using storytelling across the curriculum to teach students critical thinking and reflection about their role as lawyers. In Part One, I describe the importance of storytelling and stories in the craft of lawyering. Part Two describes my own teaching in the context of narrative theory and practice, and it analyzes how and why this context achieves the goal of developing students’ critical thinking skills and reflective practice. The piece concludes with the suggestion that narrative theory and storytelling as a pedagogy used systematically across individual courses and the curriculum has the potential to transform a student’s experience of law school, resulting in her development as an empowered, reflective, and socially responsible member of the legal profession, regardless of the kind of law she practices or the kinds of clients she represents.

Download the article from SSRN at the link.

Judges and Storytelling

Kenneth D. Chestek, Indiana University, Indianapolis, has published Judging by the Numbers: An Empirical Study of the Power of Story in volume 7 of the Journal of the Association of Legal Writing Directors (2010). Here is the abstract.

This article focuses on the question of whether appellate judges are actually influenced by the stories of the litigants who appear before them. Part I will describe what I call the “DNA model of persuasion,” setting forth the hypothesis that logical argumentation, while a necessary part of persuasion, is not sufficient by itself and that using the form of a story to weave a pathos-based appeal into a brief will produce a more persuasive document. Part II of this article will describe a study that I devised and implemented to test whether appellate judges find story argumentation persuasive; Part III will present the results of the study. Part IV addresses possible objections to the validity of the test and the sample collected. Part V will begin an analysis of what the data might mean.

Among other things, I conclude that stories are indeed persuasive to appellate judges and others, but also that recent law school graduates are not as impressed by stories as more experienced lawyers (and judges) are. Finally, I suggest that stories are helpful because, properly done, they evoke emotional responses within the reader that make the legal claim seem more “real,” and hence believable, to the reader.

Download the article from SSRN at the link.

August 31, 2010

Bollywood Film

Michael H. Hoffmeier, University of Mississippi, has published Rule of Law in Bollywood Translations of ‘Devdas’ and ‘Parineeta’ at Florida Entertainment Law Review 81 (2009).

This article discusses transformation of "Devdas" and "Parineeta" narratives in multiple commercial Hindi film adaptations, focusing on changing role of law and lawyers over time.

Download the article from SSRN at the link.