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


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


Architecture and Design

Theatre and Performance

Art History

Religious Studies

History of Science and Medicine


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: 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

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

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

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


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, 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


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.