May 31, 2011

President Proposes Richard Weisberg For Administrative Post

President Barack Obama is naming Richard H. Weisberg to the Commission for the Preservation of America’s Heritage Abroad. Professor Weisberg is the founding and current President of the Law and Humanities Institute. Below is an abbreviated biography, taken from a White House press release.

Richard H. Weisberg is the Floersheimer Professor of Constitutional Law at the Benjamin N. Cardozo School of Law, Yeshiva University.  He began his teaching and scholarly career as Assistant Professor of French and Comparative Literature at the University of Chicago, and then went on to practice and teach law. In 2009, he was awarded the Legion of Honor by the French government for his work, together with US State Department and French governmental officials, in providing restitution from France to victims of the wartime Vichy regime. A recipient of Guggenheim, ACLS, and Rockefeller Foundation fellowships, he is the author of four books including Vichy Law and the Holocaust in France; Poethics; and The Failure of the Word.  He is the founding and current president of the Law & Humanities Institute and founding and general editor of the periodical, Law and Literature.  He received his J.D. from Columbia Law School, where he was an editor of the Law Review, and his Ph.D from Cornell University.

Visualizing Law

Congratulations to Professor Richard K. Sherwin, whose newest publication, Visualizing Law in the Age of the Digital Baroque: Arabesques and Entanglements (Routledge), forms part of the basis of what promises to be a spectacular international conference, Visualizing Law In the Digital Age, at Cardozo Law School, October 19, 2011, and is co-sponsored by Cardozo and New York Law School. In addition to Professor Sherwin, other speakers include Professor Amy Adler (NYU Law School), Professor Christian Biet (Universite de Paris X), Professor Christian Delange (Universite de Paris VII), Professor James Elkins (School of Art Institute, University of Chicago), Professor Peter Goodrich (Cardozo Law School), Professor Desmond Manderson (McGill University), Professor W. J. T. Mitchell (University of Chicago), Professor Francis "Jay" Mootz (University of Nevada Las Vegas Law School), Professor Renata Salecl (London School of Economics, Visiting Professor, Cardozo Law School), Professor Austin Sarat (Amherst College), and Professor Alison  Young (University of Melbourne). More here and and here (a guest post from Professor Sherwin at the Hannah Arendt blog). NB: the webaddress given in the Routledge ad ( either is not correct or does not seem to be working right now and I could not find another address for the symposium).

Legal Narrative and Statuary

Sally Greene, Center for the Study of the American South, has published Judge Thomas Ruffin and the Shadows of Southern History, in volume 17 of Southern Cultures (Fall 2011). Here is the abstract.

The statue of North Carolina Supreme Court Judge Thomas Ruffin that stands in a shadowy alcove at the entrance of a state court building in Raleigh was erected in 1915, toward the conclusion of a period of memorialization in the American South that was intended to reinforce in the public’s imagination a coherent story of American history that began with the Founding Fathers, continued through Robert E. Lee and the narrative of the “Lost Cause,” and worked to evoke “old family heritage, Anglo-Saxon supremacy, and military and political heroism.” Although Ruffin’s authorship of State v. Mann (1829), a case well known in its time (and now) for the stridency of the rhetoric with which Ruffin upholds the “power of the master,” is nowhere mentioned in the documentation surrounding the creation and dedication of the statue, that connection would have been inescapable to a white audience, which would have been largely sympathetic. But an emancipationist counternarrative, which was never really silenced, survives as a reminder of the strength and resilience of generations of Americans committed to equal justice under the Constitution. A recognition of this counternarrative has the potential to change the way we view Ruffin’s statue: the statement of the fixed and irrefutable power of law that it was no doubt intended to make unfolds into a conversation about the uses of law by the powerful. Such a shift of perspective, in turn, invites us into a broader reconsideration of our ways of navigating the contested terrain of public commemorative art.
Download the article from SSRN at the link.

Hay Festival Coverage

From the Daily Telegraph's Hay 2011 Festival coverage: a short article on famous (or infamous) literary feuds. Which ones catch your fancy? Mary McCarthy vs. Lillian Hellman, and the celebrated accusation that "'every every word she (Hellman) writes is a lie, including ‘and’ and ‘the' "? More Hay Festival coverage here (video/audio).

May 30, 2011

Redefining "Indian-ness"

Gregory Ablasky, University of Pennsylvania, has published Making Indians 'White': The Judicial Abolition of Native Slavery in Revolutionary Virginia and its Racial Legacy at 159 University of Pennsylvania Law Review 1457 (2011). Here is the abstract.

This article traces the history of a series of “freedom suits” brought by Virginia slaves between 1772 and 1806, in which the Supreme Court of Appeals of Virginia judicially abolished nearly two centuries of American Indian slavery in the colony by ruling that slaves who could prove maternal descent from Native Americans were prima facie free. Delving first into the legal history of Indian slavery in colonial America, it then examines the doctrinal shift that led the courts to redefine natives as unfit subjects for enslavement, and argues that its roots lie in a racialization of slavery that separated Africans from Natives. The final section explores the national legacy of these rulings, tracing the spread of these legal principles throughout the antebellum United States and discussing how the racial ideology that divided Native Americans and African-Americans continues to pose legal hurdles in contemporary Indian law cases involving tribal recognition and the Cherokee freedmen.
Download the article from SSRN at the link.

The King James Bible and the Founding of the Republic

Bernard M. Levinson, University of Minnesota, and Joshua A. Berman have published The King James Bible at 400: Scripture, Statecraft, and the American Founding in the History Channel Magazine, November 2010, at page 1. Here is the abstract.

This short article addressed to a broader readership investigates the impact of the King James Bible upon the American founding. In order to show that impact, the article's first half portrays the political context for the formation of the King James, charts the influence of the Bible upon early modern political thought, and then sketches the impact of the KJV upon the rhetoric and political thought of the Founders. The essay is accompanied by a timeline.
Download the article from SSRN at the link.

Francisco de Vitoria and Alberico Gentili On the Global Legal Community

Andreas Wagner, Goethe University Frankfurt, Cluster of Excellence "The Formation of Normative Orders," has published Francisco De Vitoria and Alberico Gentili on the Legal Character of the Global Commonwealth, in the Oxford Journal of Legal Studies (2011). Here is the abstract.

In discussing the works of 16th-century theorists Francisco de Vitoria and Alberico Gentili, this article examines how two different conceptions of a global legal community affect the legal character of the international order and the obligatory force of international law. For Vitoria the legal bindingness of ius gentium necessarily presupposes an integrated character of the global commonwealth that leads him to as it were ascribe legal personality to the global community as a whole. But then its legal status and its consequences have to be clarified. For Gentili on the other hand, sovereign states in their plurality are the pinnacle of the legal order(s). His model of a globally valid ius gentium then oscillates between being analogous to private law, depending on individual acceptance by states and being natural law, appearing in a certain sense as a form rather of morality than of law.
The full text is not available for download from SSRN.

May 27, 2011

Interpreting Constitutions

Joel I. Colon-Rios, Victoria University of Wellington, has published Law, Language, and the New Latin American Constitutions, in the New Zealand Journal of Public and International Law (2011) and the Victoria University of Wellington Law Review (2011). Here is the abstract.

Latin America has many languages and many constitutions. This article provides a general overview of the ways in which some constitutions of states of Latin America relate to the multi-lingual context in which they operate. After providing a brief account of Latin American constitutional history in Part I, the essay will thus consider the relationship between language and constitutions in three different contexts: the creation of new constitutions, constitutional protection of language rights, and the process of making a constitution accessible to speakers of a language different from the one in which it was originally written.
Download the full text from SSRN at the link.

May 26, 2011

The History of Hysteria, In Photographs

NPR's Jessica Loudis takes a look at Asti Hustvedt's Medical Muses: Hysteria in Nineteenth Century Paris, a new book examining the women confined to the notorious Salpetriere Hospital in Paris, the treatment of their condition, which was dubbed "hysteria," and the effects and stories about that threatment then and now. Says Ms. Loudis in part,

Nowhere was hysteria's uneasy relationship to science more apparent than in photographs. Andre Breton once called hysteria the "greatest poetic discovery of the late 19th century," a notion that lingers below the surface of clinical observation. Like Muybridge's images of horses in motion, Charcot used photography as a mode of forensics and a means to parse illness. For the neurologist, a lifelong doodler, "art became a method to immobilize the tumultuous fits of his patients and order the savage thrashing into a sequence of static images." It's no coincidence that "Augustine," Charcot's most documented hysteric, arrived at the hospital in 1875, the same year that its first darkroom was installed. But more than a century later, these photos — many of which have the macabre look of a still from a Bela Lugosi film — are in no way native to the realm of medicine. Instead, Hustvedt uses them to highlight the historically foggy divide between science and art.
More here. The book is published by Norton.

May 25, 2011

Anniversary of the Scopes Indictment

May 25, 1925, a grand jury indicted John T. Scopes for violating a Tennessee law (passed only two months before) against the teaching of evolution (the Butler Act; repealed in 1967).  Clarence Darrow undertook Mr. Scopes' defense, while the prosecution enlisted William Jennings Bryan to direct its case. While the jury hearing the case ultimately convicted Scopes, Tennessee's Supreme Court overturned the conviction on the grounds that the judge, rather than the jury, had imposed the penalty.

John T. Scopes
Jerome Lawrence and Robert E. Lee dramatized the trial, somewhat disguising the principals as Henry Drummond (Darrow), Matthew Harrison Brady (Bryan), Bertram T. Cates (Scopes), and E. K. Hornbeck (H. L. Mencken, the famed journalist who covered the trial). The playwrights noted that while their work took the Scopes trial as its departure point it was also an indictment of the McCarthyism that swept the country in the early and mid-1950s. The play made its debut on Broadway in 1955 and was first filmed in 1960.  It has been made for television three times, in 1965, 1988, and 1999, and is a staple for repertory companies and local theater groups.


Copy of the original New York Times story discussing Scopes indictment here
Mencken's article discussing likelihood of Scopes' conviction
Professor Doug Linder's excellent Famous Trials website with more information on the trial here

Bobbleheads and Bling: The Message of Tex-Mex Rapper Pedro Herrera

From the New York Times, a feature on Pedro Herrera, "Chingo Bling," who takes inspiration from Mexican foods and culture, and weaves his political concerns into the popular hip-hop that has made him a standard bearer for the Latin American experience. Among his recordings: They Can't Deport Us All (Asylum Records); Chave del Ache: The Kid from da H, El Mero Chingon, Duro en la Pintura, Chicken Flippa, Tamale Season, and Air Chingo: The Mixtape (all Oarfin Records). A link to Chingo Bling's blog here.

The Constitution of Cadiz

Matthew C. Mirow, Florida International University College of Law, has published Codification and the Constitution of Cádiz in Estudios Jurídicos en Homenaje al Profesor Alejandro Guzmán Brito (Patrício-Ignacio Carajal and Massimo Miglietta, eds.; Edizioni dell’Orso, 2012).

This study seeks to explore the private law side of the Constitution of Cádiz, in particular its use and reference to the legal revolution of codification that was well underway by 1812. By engaging questions of codification and private law, this study explores the relationship between private law and public law at a transformative moment in both areas. In public law, unwritten, ancient constitutions were just beginning to be replaced by written constitutions attempting to limit government and to define individual rights. In private law, centuries of the ius commune tradition were being reorganized and shaped into codes. Thus, an examination of the idea and place of codification in the Constitution of Cádiz should reveal clues about these important changes.

First, this study discusses the placement of Article 258, the constitutional article referring to codes, within the text of the Constitution itself. It then addresses other aspects of the Constitution that point towards codification as a logical outgrowth of the political and legal transformations contemplated by the Constitution. The third topic addressed here is the way Article 258 came into the Constitution through the reports of the debates in the Cortes and what these statements reveal about the perception of codes at the Cortes. This study ends with some concluding comments about the place of the Constitution of Cádiz in the history of Latin American codification.
Download the text from SSRN at the link.

The Meaning of "Precedent"

Frederick Schauer, University of Virginia School of Law, is publishing Precedent in the Routledge Companion to the Philosophy of Law (Andrei Marmor ed., 2011?). Here is the abstract.

This article on precedent, prepared as an entry for the forthcoming Routledge Companion to the Philosophy of Law (Andrei Marmor, ed.), examines the main philosophical and jurisprudential issues involved with the concept of precedent and its role in legal reasoning and legal decision-making. Among the themes covered are the fundamental idea of a past decision being a reason just because of its existence, the distinction between precedential and analogical reasoning, the issues involved in determining which past decisions are precedents for which current ones, the relation between precedent and rules, and the normative and institutional design questions of when a system of precedential constraint is desirable and when it is not.
Download the text from SSRN at the link.

The State of Nature: Whence Politics?

William A. Edmundson, Georgia State University College of Law, has published Politics in a State of Nature. Here is the abstract.

Aristotle thought we are, by nature, political animals. Political philosophy in the tradition of Hobbes and Locke sees political society not as natural but as an artifice. For this tradition, political society emerged from a pre-political state of nature by the exercise of innate normative powers. Those powers, together with the rest of our native normative endowment, both make possible the construction of the state, and place sharp limits on the state’s just powers and prerogatives.

Thus described, a state-of-nature theory has three components. One is an account of the native normative endowment, or “NNE.” Two is an account of how the state is constructed using the tools included in the NNE. Three is an account of the state’s resulting normative endowment, which includes a (purported) moral power to impose duties of obedience.

State-of-nature theories disagree about the NNE. For Hobbes, it consists of a moral permission to do whatever seems to one to be necessary to survival, and a moral power to covenant. Locke specified a more constraining NNE, which also included a “natural executive right” to punish wrongdoing. Rawls excluded personal desert from the “original position,” his refurbishing of the state of nature. In each case, the NNE is not treated as though it were a matter of empirical investigation and discovery, but rather were one of reflective adjustment to the other two components of the theory.

The work of social psychologist Stanley Milgram and his students suggests a quite different NNE, one far more constrained than what state-of-nature theories have allowed. Norms that constrain moral reproof are of particular interest here. Contrary to Locke, people do not behave in experimental settings as one would predict if they possessed a “natural executive right” to punish wrongdoing. Moral reproof is subject to standing norms. These norms limit the range of eligible reprovers.

This paper draws on this work to support two claims. One, is that the native normative endowment is (as Aristotle held) already political. The other is that political authority should be re-conceived as a matter of standing - that is, as the state’s unique possession of a moral permission to enforce moral norms, rather than as a moral power to impose freestanding duties of obedience.
Download the paper from SSRN at the link.

May 24, 2011

The Legacy and Mystery of Primo Levi

Carlin Romano writes about Primo Levi's legacy here for the Chronicle of Higher Education. More on the meaning of Mr. Levi's art and the difficulty of writing about his work here in a 2002 Chronicle article by Julia M. Klein.

Egalitarianism In History and Contemporary Thought

Joel I. Colon-Rios, Victoria University of Wellington, and Martin Hevia, Universidad Torcuato Di Tella School of Law, have published From Redistribution to Recognition in El derecho a la egualidad: a portes para un constitucionalismo iqualitario (Roberto Gargarella y Marcela Alegre eds.; Lexis/Nexis, forthcoming).

This paper examines the 'second wave' of egalitarianism, which moved away from the traditional focus on economic injustices and redistribution claims, to an emphasis in cultural injustices and the politics of recognition. The first part of the paper introduces the 'first wave' of egalitarian thought, through a brief examination of the work of John Rawls and of the scholarship on luck egalitarianism. The second part, resting on the work of Charles Taylor, explores the historical roots of the politics of recognition. The third part focuses in the debate between Iris Marion Young and Nancy Fraser, which exemplifies the promises and limits of the second wave of egalitarian thought.
Download the abstract from SSRN at the link. NB: Text is in Spanish.

Law's Nature

Frederick Schauer, University of Virginia School of Law, has published On the Nature of the Nature of Law. Here is the abstract.

What is it for something to have a nature? And what is it for law to have a nature? Analysis of the concept of law has often been taken to be a search for the essential features of law, but it is not clear that the nature of a phenomenon or artifact is better explained by its essential features than by its common ones. And it is not clear that necessary truths have more explanatory value than typical truths. Especially – but not necessarily – if we recognize the possibility that law is a cluster concept, the value of explaining the widespread but not strictly necessary features of law in explaining law itself becomes more apparent. The jurisprudential project of differentiating law from other social phenomena is an important one, but the distinction may be a fuzzy one and not susceptible either to sharp demarcation or to specification of essential features of law that will assist in differentiation. But if we inquire into what typically or usually or almost always characterizes law rather than what necessarily characterizes it, we may make genuine progress in distinguishing law from the social phenomena to which it is adjacent but with which it is not congruent. This paper, prepared for the McMaster University Conference in May, 2011, on “The Nature of Law: Contemporary Perspectives,” explores these issues.
Download the paper from SSRN at the link.

What's Satire Got To Do With It?

Lauren Feldman, American University, Anthony Leiserowitz, Yale University, and Edward W. Maibach, George Mason University Center for Climate Change Commication, have published The Impact of the Daily Show and the Colbert Report on Public Attentiveness to Science and the Environment. Here is the abstract.

Prior research on the political effects of late-night comedy programs has demonstrated that by piggy-backing political content on entertainment fare, such programs provide a, "gateway," to increased audience attention to news and public affairs, particularly among less politically engaged audiences. Given the heightened coverage of science and environmental topics on Comedy Central’s satirical news programs, "The Daily Show," and, "The Colbert Report," this paper considers whether a similar process could be at work relative to public attention to science and the environment. An analysis of nationally representative survey data finds that audience exposure to, "The Daily Show," and, "The Colbert Report," goes hand-in-hand with attention paid to science and environmental issues, specifically global warming. Moreover, the relationship between satirical news use and attentiveness is most pronounced among those with the least amount of formal education, who might otherwise lack the resources and motivation to pay attention to scientific and environmental issues. In this way, satirical news is an attention equalizer, reducing traditional gaps in attentiveness between those with low and high levels of education.
Download the paper from SSRN at the link.

May 23, 2011

Bob Dylan In Legal Opinions

Alex B. Long, University of Tennessee College of Law, has published The Freewheelin' Judiciary: A Bob Dylan Anthology. Here is the abstract.

This paper, presented as part of a symposium on Bob Dylan and the Law at the Fordham University School of Law, explores the ways in which judges have used the lyrics of Bob Dylan in their opinions.
Download the paper from SSRN at the link. NB: Bob Dylan's 70th birthday is May 24th.

Calll For Papers: International Conference on Law, Language, and Discourse

The First International Conference on Law, Language and Discourse

Multiculturalism, Diversity and Dynamicity

City University of Hong Kong with The Hong Kong Polytechnic University

Hong Kong, 20-21 August, 2011

The First International Conference on Law, Language and Discourse invites theoretical studies, applicational cases, and relevant work-in-progress papers on the key issues in Law, Language and Discourse. The theme of the conference “Multiculturalism, Diversity and Dynamicity” promotes research of, and welcomes participation from, researchers of different cultural and language backgrounds from different disciplines and across jurisdictions.

The LLD Conference invites papers on all aspects of law, language and discourse, including, but not limited to:

1. Legislative language

2. Courtroom language

3. Language in the proceeding of investigation (including police interrogation, cover investigation, conversation in prison, etc.)

4. Legal translation & court interpretation

5. Education and training on LLP (Language for Legal Purposes)

6. Language evidence as a system

7. Discourse analysis of legal texts

8. Legal terminology

9. Legal discourse and information retrieval

10. Language planning and Language rights

The conference will be held on 20-21 August 2011, just before the 16th World Congress of Applied Linguistics (AILA2011) (23-28 August 2011, Beijing) and the International Conference on Law, Translation and Culture (28-29 August 2011, Beijing).

Post-conference indexed (CPCI-SSH) proceedings will be published.

Confirmed invited speakers

Vijay Bhatia, City University of Hong Kong

Le Cheng, The Hong Kong Polytechnic University

Winnie Cheng, The Hong Kong Polytechnic University

Malcolm Coulthard, Aston University

Diana Eades, University of New England

Michael Halliday, University of Sydney

Craig Hoffman, Georgetown University

Kyo Kageura, The University of Tokyo

Gilbert Mo, Department of Justice of Hong Kong

Lijin Sha, China University of Political Science and Law

King Kui Sin, City University of Hong Kong

Benjamin T'sou, Hong Kong Institute of Education

Anne Wagner, Université du Littoral Côte d'Opale

Jonathan Webster, City University of Hong Kong

Weiping Wu, Chinese University of Hong Kong

Important dates

Abstract deadline: 15 June 2011 (500-800 words to [Download the abstract sample.]

Notification of acceptance: 30 June 2011


Method of payment is described here.

Before 15 July 2011: US$120.00

After 15 July 2011: US$200.00

Method of payment

Please send a bank draft via air mail payable to City University of Hong Kong to International Conference on Law, Language and Discourse C/O Department of Chinese, Translation and Linguistics, City University of Hong Kong, 83 Tat Chee Avenue, Hong Kong. Please also put your name on the back of the bank draft.

Link: (to be updated)

Canadian Initiative in Law, Culture, and Humanities: Call For Papers

From Diana Young, an announcement:

The Canadian Initiative in Law Culture and the Humanities is inviting proposals for its biennial conference in October. The call for papers is attached, and can also be found on line here. Any inquiries should be directed to,
Canadian Initiative in Law, Culture, and Humanities
Carleton University
C473 Loeb Building
1125 Colonel By Drive
Ottawa, ON, K1S 5B6

Dis/Locating Law

Biennial Conference of the
Canadian Initiative in Law, Culture and Humanities

Ottawa, Canada

October 20-22, 2011


Dislocation is a phenomenon of space, place and time. To dislocate something is to upset, complicate, or displace it. It involves getting things out of place, out of order, and out of time, or to question if things are indeed in their ‘right’ place and time. Dislocating, then, can be disorienting; it can dislodge comfortable assumptions, and it can unsettle, perhaps even painfully, what has gone before. Dislocation invites different perspectives, produces new cartographies, disrupts teleologies. This conference will feature papers and presentations which unsettle the place of law in relation to political, ethical, social, cultural or symbolic orders.

The Canadian Initiative in Law, Culture and Humanities (CILCH) invites you to participate in its 2011 conference on the theme of dis/locating law. The conference is interdisciplinary, drawing together scholars whose research addresses the intersections among culture, the humanities and law, including but not limited to studies of law and literature, law and film/television, cultural practices of regulation, mediation and law, intersections of cultural theory and the legal, alternative visions of legally coded practices, and so on.

This year’s theme is intentionally broad in order to provide an open-ended focus for exploration. The conference is hosted with the goals of stimulating conversations among diverse scholars with shared interests, of continuing to foster the growing community of law, culture and humanities scholars in Canada, and of contributing to a global network of scholarship in these areas.
If you are interested in giving a paper, hosting a roundtable, or offering another form of presentation (either almost finished works or works in progress), please submit a proposal to CILCH, as follows:


- title of proposed paper/presentation

- 200 word biography of presenter(s)

- contact information for presenter(s)

- an abstract outlining the paper/presentation of a maximum of 300 words

- detail on any technical requirements (data projector, sound system, etc.)

We very much look forward to receiving your proposal and to yet another productive and thought-provoking CILCH gathering.

The deadline for submission is June 15, 2011.

The Role of Labor Songs In Labor Movements

Raymond A. Franklin has published The Contemporary Roles of Labor Songs in the St. John's Legal Studies Research Paper series. Here is the abstract.

Music has played a critical role for workers throughout the history of the labor movement. Music gives an opportunity to rebel. It gives an opportunity to argue policy. It gives an opportunity to be heard. Songs written in protest, or in furtherance of a cause, give a sense of historical and political climate of a particular era. This article, “The Contemporary Roles of Labor Songs” draws attention to three especially important periods in the shaping of labor history, the 1930s, 1960s and 1980s, highlighting the representative impact a particular song - “Which Side Are You On?,” “Salt of the Earth,” and “There is Power in a Union" - had in each of these decades.
Download the paper from SSRN at the link.

May 21, 2011

Literary Influences On the Supreme Court Opinion

The New York Times' Adam Liptak reports that Bryan A. Garner, word maven, author of Garner's Modern American Usage and editor of Black's Law Dictionary, has interviewed the justices on their writing styles and gotten some pointers for lawyers anxious to influence them through Supreme Court briefs. You can read about Mr. Garner's interviews here and in the Scribes Journal of Legal Writing, volume 13.

May 19, 2011

Some New Books of Interest

Anderson, Mark Lynn, Twilight of the Idols: Hollywood and the Human Sciences in 1920s America (University of California Press, 2011). Discusses the impact of Hollywood on ideas of deviance.

Arthos, John, Speaking Hermeneutically: Understanding in the Conduct of a Life by (University of South Carolina Press, 2011). Discusses Heidegger, Gadamer, and Ricoeur.

California Women and Politics: From the Gold Rush to the Great Depression (Robert W. Cherny, Mary Ann Irwin, and Ann Marie Wilson eds.; University of Nebraska Press, 2011).

Datta, Venita, Heroes and Legends of Fin-de-Siecle France (Cambridge University Press, 2011). Discusses Cyrano de Bergerac, Joan of Arc, and Napoleon Bonaparte.

Ferguson, Kathy E., Emma Goldman: Political Thinking In the Streets (Rowman & Littlefield, 2011).

Dierkes-Thrun, Petra, Salome's Modernity: Oscar Wilde and the Aesthetics of Transgression (University of Michigan Press, 2011). Depictions of Oscar Wilde's Salome in other media.

Farrier, David, Postcolonial Asylum: Seeking Sanctuary Before the Law by David Farrier (Liverpool University Press, 2011). Combines law and popular culture to examine depictions of asylum seeking in the Commonwealth and Europe.

Forces of Compassion: Humanitarianism Between Ethics and Politics (Erica Bornstein and Peter Redfield, eds.; SAR Press, 2011). On the nonprofit Doctors Without Borders.

Greven, David, Representations of Femininity in American Genre Cinema: The Woman's Film, Film Noir, and Modern Horror (Palgrave Macmillan, 2011). Includes analyses of The Heiress and Carrie among other films.

The Intellectual and Cultural World of the Early Modern Inns of Court (Jayne Elizabeth Archer, Elizabeth Goldring, and Sarah Knight eds.; Manchester University Press, 2011).

Jones, David Houston, Samuel Beckett and Testimony (Palgrave Macmillan, 2011).

Kezar, Dennis, Guilty Creatures: Renaissance Poetry and the Ethics of Authorship (Oxford University Press, 2011). Examines works by Skelton, Spenser, and Shakespeare.

Monteyne, David, Fallout Shelter: Designing For Civil Defense in the Cold War (University of Minnesota Press, 2011).

Muzaka, Valbona, The Politics of Intellectual Property Rights and Access to Medicines (Palgrave Macmillan, 2011).

Noble, Louise, Medicinal Cannibalism in Early Modern English Literature and Culture (Palgrave Macmillan, 2011).

Polzonetti, Pierpaolo, Italian Opera in the Age of the American Revolution (Cambridge University Press, 2011).

Religion, Politics, and Globalization: Anthropological Approaches (Galina Lindquist and Don Handelman, eds.; Berghahn Books, 2011).

Taylor, Clarence, Reds at the Blackboard: Communism, Civil Rights, and the New York City Teachers Union (Columbia University Press, 2011).

Werbner, Richard, Holy Hustlers, Schism, and Prophecy: Apostolic Reformation in Botswana (University of California Press, 2011). On Eloyi. Includes a DVD.

May 18, 2011

American Bar Association Announces 2011 Gavel Award Winners

From an ABA press release:

The American Bar Association announced today its selections for the 54th presentation of the Silver Gavel Awards for Media and the Arts, which recognize outstanding work that fosters the American public’s understanding of law and the legal system. This is the ABA’s highest honor in recognition of this purpose.

The ABA will present six Silver Gavels and two honorable mentions from the nearly 200 entries received in all eligible categories, which include: books, magazines, newspapers, commentary, drama and literature, documentaries, television, radio and websites.

Selection criteria includes: how the entry addresses the Gavel Awards’ purpose and objectives; educational value of legal information or issues treated; impact on, or outreach to, the public; thoroughness and accuracy in presentation of issues; creativity and originality in approach to subject matter and effectiveness of presentation; and demonstrated technical skill in production of entry.

The awards presentation will be July 19 at the National Press Club in Washington, D.C. Dan Abrams, legal analyst for ABC News, will be the featured speaker.

The following is a complete list of winners with a short description of their work:


Silver Gavel

Profiting from Fallen Soldiers

Bloomberg Markets

New York

David Evans, Senior Writer

Fallen Soldiers’ Families Denied Cash as Insurers Profit”

Veterans Agency Made Secret Deal Over Benefits”

Taxpayer-Funded Profits”

Exposes how life insurance companies have profited from death benefits owed to families of service members and other government employees, examining causes and consequences.


Silver Gavel

Hounded: Debtors and the New Breed of Collectors

Star Tribune


Chris Serres, Business Reporter

Glenn Howatt, CAR Reporter

A six-part series that explores recent changes in the debt collection industry, reveals how people with unpaid bills are being jailed, and examines consumer protection and regulation.

Honorable Mention

Detention Dilemma


New York, New York

Dafna Linzer, Senior Reporter

Chisun Lee, Reporter

Krista Kjellman Schmidt, Deputy Editor of News Applications

A series of 14 articles about detention policies at Guantanamo under the Obama administration, which also considers the role of the federal courts and Congress.


Silver Gavel

Bonding for Profit

National Public Radio

Washington, D.C.

Laura Sullivan, Correspondent

Steven Drummond, Editor

A three-part investigation into the bail bond process in the U.S. criminal justice system.


Silver Gavel

The Lord is Not on Trial Here Today

Jay Rosenstein Productions

Champaign, Illinois

Jay Rosenstein, Producer, Writer, Director, Photographer

Jude Leak, Editor

Wendy Blackstone, Composer

David Ogden Stiers, Narrator

A one-hour PBS film that tells the compelling personal story that led to a landmark 1948 U.S. Supreme Court decision on the separation of church and state in public schools, McCollum v. Board of Education.


Silver Gavel

A Call to Act: Ledbetter v. Goodyear

The Documentary Group

New York

Robe Imbriano, Producer, Writer, Director

A 22-minute documentary that tells the contemporary story of Lilly Ledbetter, who took her fight for fair pay through the U.S. court system and the halls of Congress.


Silver Gavel

Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices

Twelve/Hachette Book Group

New York

Noah Feldman, Author

Author Noah Feldman offers a group biography of Franklin Roosevelt’s four greatest Supreme Court Justices: Hugo Black, William O. Douglas, Felix Frankfurter and Robert Jackson.

Honorable Mention

The Death of American Virtue: Clinton vs. Starr


Crown Publishers

Ken Gormley, Author

Presents a historical narrative and analysis of the events leading up to the impeachment trial of President Bill Clinton.

With nearly 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

Dirty Sexy Politics

Sometimes what turns up in the headlines can seem too good to be true if you're a tv scriptwriter. The New York Times' Ginia Bellafonte compares plots on the legal drama "The Good Wife" to real life here, and suggests what its writers might glean for future storylines from the unhappy circumstances unfolding around Arnold Schwartzenegger and Dominique Strauss-Kahn.

Call For Papers: Windsor Review of Legal and Social Issues

From the Windsor Review of Legal and Social Issues

Call For Papers

The Windsor Review of Legal and Social Issues

The Windsor Review of Legal and Social Issues is now accepting submissions for Volumes 31 and 32.

The Windsor Review of Legal and Social Issues invites you to submit original, scholarly work to be considered for its forthcoming issues. Currently, we are accepting papers submitted by academics, practitioners, articling students and current law students on any legal topic of your choice. Papers should not exceed 20,000 words including footnotes. Footnotes should conform to the Canadian Guide to Uniform Legal Citation (McGill Guide, 7th edition).

As an inter-disciplinary law journal, the WRLSI strives to use the study of law as a vehicle for social change. Our journal endeavours to be a resource for professionals, students and academics. Legal libraries both nationally and globally subscribe to the WRLSI. Our legal journal has also been made available through electronic databases such as Quicklaw/LexisNexis, Westlaw, and Hein Online.


Deadline for abstracts (optional) - June 15, 2011

Deadline for manuscripts - July 31, 2011

Expected date of publication - December 2011


Deadline for abstracts (optional) - October 15, 2011

Deadline for manuscripts - December 1, 2011

Expected date of publication - April 2012

FURTHER INFORMATION: Submissions received after these deadlines will be reviewed at the discretion of the Editorial Board. Questions can be directed to:


Desiree D'Souza


Windsor Review of Legal and Social Issues

Faculty of Law, University of Windsor

Conference Announcement and Call For Papers: Loyola (Chicago) Law School Second Annual Constitutional Law Colloquium

From Loyola (Chicago) Law School

Conference Announcement and Call for Papers

The Loyola Second Annual Constitutional Law Colloquium at Loyola Chicago

October 21 & 22, 2011

Loyola University Chicago School of Law is organizing the SECOND ANNUAL CONSTITUTIONAL LAW COLLOQUIUM at the Philip H. Corboy Law Center, 25 East Pearson Street, Chicago, IL 60611. The event will begin on Friday morning, October 21 and end midday on Saturday, October 22, 2011.

CONFERENCE ORGANIZERS: Professor John E. Nowak, Raymond & Mary Simon Chair in Constitutional Law, Professor Juan Perea, Professor Alexander Tsesis, Professor Michael J. Zimmer.

The Law Center is located on Loyola's Water Tower campus, near Michigan Avenue's Magnificent Mile, Lake Michigan, Millenium Park, the Chicago Art Institute, and Chicago Symphony Center.

This is the second annual Loyola conference bringing together constitutional law scholars at all stages of their professional development to discuss current projects, doctrinal developments in constitutional law, and future goals. We hope to schedule presentations for all who submit. In this way, we will provide a forum for the vetting of ideas, invaluable opportunities for informed critiques, and networking opportunities. Presentations will be grouped by subject matter.

PAPER SUBMISSION PROCEDURE: This announcement invites abstract submissions of 150 to 200 words from Constitutional Law professors interested in contributing to the current debates concerning constitutional theory and Supreme Court rulings. The goal of the conference is to allow professors to develop new ideas with the help of supportive colleagues on a wide range of constitutional law topics.

The submission deadline for abstracts is June 15, 2011.

Topics, abstracts, papers, questions, and comments should be submitted to the Program Administrator Carrie Bird, at:

Participants are expected to pay their own travel expenses. Loyola will provide facilities, support, and continental breakfasts on Friday and Saturday, lunch on Friday and Saturday, and a dinner on Friday night.

There are numerous reasonably priced hotels within walking distance of the Loyola School of Law and Chicago's Magnificent Mile.

May 17, 2011

Adoption of English Law In Maryland

Garrett Power, University of Maryland School of Law, has published Adoption of English Law in Maryland as University of Maryland Legal Studies Research Paper No. 2011-24. Here is the abstract.

It served as an axiom of Maryland’s constitutional history that settlers carried with them the "rights of Englishmen" when they crossed the Atlantic. In 1642 the Assembly of Maryland Freemen declared Maryland’s provincial judges were to follows the law of England. Maryland’s 1776 Declaration of Independence left a legal lacuna - what were to be the laws and public institutions of this newly created sovereign entity? This paper considers the manner in which the sovereign state of Maryland filled the void.
Download the paper from SSRN at the link.

John Stuart Mill, Oliver Wendell Holmes, and the Defense of Free Speech

Irene M. Ten Cate, Columbia Law School, has published Speech, Truth, and Freedom: An Examination of John Stuart Mill's and Justice Oliver Wendell Holmes's Free Speech Defenses in volume 22 of the Yale Journal of Law and the Humanities (2010). Here is the abstract.

This Article is the first in-depth comparison of two classic defenses of free speech that have profoundly influenced First Amendment law: John Stuart Mill's On Liberty and Justice Holmes's dissenting opinion in Abrams v. United States. Both defenses argue that dissenting speech plays a critical role in a collective truth-seeking endeavor, and they are often grouped together as advocating for a marketplace of ideas, a metaphor that has become a fixture in American constitutional law.

However, this Article finds that, on closer examination, the two theories are grounded in fundamentally different views of the quest for truth and the role of speech in this undertaking. Mill envisions a process in which clashes between contrary opinions lead to progress in uncovering universal, unchangeable truths. Individuals who express unpopular views are indispensable, as their challenges to prevailing opinions keep the search for truth, and the meaning of already discovered truths, alive. The mentions of truth in the Abrams dissent, consistent with elaborations on the subject in Holmes's scholarly writings and correspondence, are best read as referring to choices made by majorities or dominant forces in response to internal and external challenges to the status quo. Holmes's commitment to free speech appears to be based primarily on its role in safeguarding a process by which decision-making factions can be formed This Article argues that a key to understanding the differences between the two defenses lies in the ideas about freedom that are at the heart of Mill and Holmes's world views. Mill believes that individuals are free in the sense that they have the ability to choose their beliefs, even if they frequently opt for the easier alternative of uncritically following the mainstream. At the same time, he believes that a society can create conditions that are conducive to individual flourishing. Mill's free speech defense is based not only on the argument that individuals are more likely to pick true beliefs if presented with several alternatives, but also on the notion that a society that prizes dissent promotes the development of character traits in its citizens that will in turn allow that society to prosper. Holmes, on the other hand, views individuals as constrained by firmly rooted preferences shaped by accidental circumstances, but regards society as constantly evolving and adjusting and, to a large extent, free to determine its future course. His defense is staked on a constitutional commitment to safeguarding the conditions for collective self-determination in an uncertain and perpetually changing world.
Download the article from SSRN at the link.

"Nothing To Hide"

Daniel J. Solove, George Washington University Law School, has published the first chapter of Nothing to Hide: The False Tradeoff between Privacy and Security (Yale University Press, 2011). Here is the abstract.

"If you've got nothing to hide," many people say, "you shouldn't worry about government surveillance." Others argue that we must sacrifice privacy for security. But as Daniel J. Solove argues in this book, these arguments and many others are flawed. They are based on mistaken views about what it means to protect privacy and the costs and benefits of doing so.

In addition to attacking the "Nothing-to Hide Argument," Solove exposes the fallacies of pro-security arguments that have often been used to justify government surveillance and data mining. These arguments - such as the "Luddite Argument,"the "War-Powers Argument," the "All-or-Nothing Argument," the "Suspicionless-Searches Argument," the "Deference Argument," and the "Pendulum Argument" - have skewed law and policy to favor security at the expense of privacy.

The debate between privacy and security has been framed incorrectly as a zero-sum game in which we are forced to choose between one value and the other. But protecting privacy isn't fatal to security measures; it merely involves adequate oversight and regulation.

The primary focus of the book is on common pro-security arguments, but Solove also discusses concrete issues of law and technology, such as the Fourth Amendment Third Party Doctrine, the First Amendment, electronic surveillance statutes, the USA-Patriot Act, the NSA surveillance program, and government data mining.
Download the text from SSRN at the link.

Morality and the Practice of Law

Kieran McEvoy, Queen's University Belfast School of Law, has published What Did the Lawyers Do During the ‘War’? Neutrality, Conflict and the Culture of Quietism at 74 Modern Law Review 350 (2011). Here is the abstract.

Using Northern Ireland as a case study, this paper explores how lawyers responded to the challenges of entrenched discrimination, sustained political violence and an emerging peace process. Drawing upon the literature of the sociology of lawyering, it examines whether lawyers can or should be more than ‘paid technicians’ in such circumstances. It focuses in particular upon a number of ‘critical junctures’ in the legal history of the jurisdiction and uncouples key elements of the local legal culture which contributed to an ethos of quietism. The paper argues that the version of legal professionalism that emerged in Northern Ireland was contingent and socially constructed and, with notable exceptions, obfuscated a collective failure of moral courage. It concludes that facing the truth concerning past silence is fundamental to a properly embedded rule of law and a more grounded notion of what it means to be a lawyer in a conflict.
The full text is not available from SSRN.

Still Writing After All These Years

Mark Bauerlein reflects on Stanley Fish's career and achievements in a column in the Chronicle of Higher Education. Link here.

May 16, 2011

The Miranda Warning In Popular Culture

Ronald L. Steiner, Chapman University School of Law, Rebecca Bauer, and Rohit Talwar have published The Rise and Fall of the Miranda Warnings in Popular Culture in volume 59 of the Cleveland State Law Review (2011). Here is the abstract.

The U.S. Supreme Court’s June 2000 decision in Dickerson v. United States was probably the first criminal procedure decision celebrated with an editorial in Broadcasting & Cable magazine. Noting that Chief Justice William Rehnquist opinion relied on the warnings’ well-established place in popular culture, the editorial acknowledged that, "[n]ext to the pledge of allegiance, the Miranda rights may be the most familiar common litany of the baby-boomer generation, thanks to TV." Professors Richard Leo and George Thomas have similarly observed "suspects are likely to have heard Miranda so many times on television that the Miranda warnings may have a familiar, numbing ring," and that "it is because of these shows and the mass media more generally - not the police, the legal system, or Supreme Court doctrine - that Miranda has become so much a part of our national culture." Critical to the Dickerson Court’s reaffirmation of Miranda was the fact of the public’s overwhelming awareness of Miranda and the fact that "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture." Clearly, television dramas, and particularly police procedurals, get the credit for informing the public about the Miranda warnings. But, whether praising or skeptical toward portrayals of Miranda and its embedding in popular culture and the public consciousness, most study and commentary presumes that the consumers of serial police dramas on American television have had repeated exposure to the Miranda warnings. Dickerson was decided in part on the same premise.

However, it may be that most people writing about the ubiquitous nature of Miranda in popular culture are describing a popular culture they remember rather than popular culture as it now exists. Judges and scholars may remember Miranda warnings used as prominent script elements in the television of their youth - the generation that came of age in the era of "Dragnet" and "Adam-12" heard Miranda warnings more times than they could count. But, as Broadcast & Cable noted, "[w]e’ve not heard a TV Miranda read in a while." Following up on that observation, a look at several iconic cop shows from the years since Miranda demonstrates a sharply diminished role for Miranda in popular culture. What happens to the Dickerson rationale if there isn’t the repeated popular culture representations of Miranda that created a public familiar with and expecting of a caution that they have the right to remain silent? Can Miranda survive in law once its television role has been left on the cutting room floor?
Download the article from SSRN at the link.

Are Judges Political Actors?

William P. Marshall, University of North Carolina, Chapel Hill, School of Law, has published Judicial Takings, Judicial Speech, and Doctrinal Acceptance of the Model of the Judge as Political Actor in volume 6 of the Duke Journal of Constitutional Law & Public Policy (2011). Here is the abstract.

The criticism that a judge has injected her policy preferences into her judicial decision making is just that - a criticism. But for years, academics from a variety of disciplines have set forth a rich literature asserting that judges’ policy preferences, rather than adhesion to neutral legal principles, determine legal results in close cases. Much of this writing, referred to here as Judicial Political Realism, has been based upon empirical studies which show that a judge’s ideology (usually determined by referencing the political party of the judge’s appointing president) significantly explains patterns of judicial votes.

Not surprisingly, the Judicial Political Realist literature generally has not been warmly received by the practicing bar, judges, and (most) legal academics because most lawyers, judges, and legal academics like to believe that legal rules, legal doctrine and legal reasoning matter even in close cases. Against this background, however, it is interesting to note two recent United States Supreme Court cases in which the Court, or at least some of its Justices, has implicitly appeared to allow the notion that judges are political actors to infiltrate constitutional doctrine. In the first, Republican Party of Minnesota v. White, a Court majority ruled that a state could not prohibit candidates for judicial office from announcing their views on issues that might come before them. For First Amendment purposes, judicial candidates were to be treated no differently than legislative candidates; the voters were entitled to know the candidates’ views on the issues and they would be expected to support or oppose a candidate on that basis. As such, the implicit suggestion in White mirrors the judges-as-political-actors critique-- judges, like legislators, bring political agendas to their service.

In the second, Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, four Justices, in an opinion authored by Justice Scalia, again appeared to strongly embrace the Judicial Political Realist claim. In Stop the Beach, the four Justices argued that the Court should recognize a doctrine of ‘judicial takings,’ meaning that a change in property rights resulting from a judicial opinion should entitle the aggrieved property owner to the same sort of compensation that a property owner would receive if the change to her rights occurred as a result of legislative enactment. To these Justices, there was no constitutional difference between judicial and legislative action for purposes of the Takings Clause. As such, even more graphically than White, the judicial takings theory advanced in Stop the Beach sets forth the vision of judges as political actors. Judicial decisions are not to be treated as interpretations of law but as exercises of raw political power akin to legislative enactment.

The Court in neither White nor Stop the Beach, of course, stopped to discuss the vision of judges as political actors inherent in their opinions. This paper does so. After first canvassing the specifics of both the White and Stop the Beach opinions, it analyzes what both cases say about the nature of judging and judicial institutions.
Download the article from SSRN at the link.

Things Are Looking Up: The US Supreme Court's Use of Dictionaries

Jeffrey L. Kirchmeier, CUNY School of Law, and Samuel Thumma, Perkins Coie, have published Scaling the Lexicon Fortress: The United States Supreme Court’s Use of Dictionaries in the Twenty-First Century, in volume 94 of the Marquette Law Review (2010). Here is the abstract.

This Article examines the Court’s use of dictionaries in the first decade of the twenty-first century, building on previous research by Professor Kirchmeier and Judge Thumma regarding the Supreme Court’s history of using dictionaries: Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Has Become a Fortress: The United States Supreme Court’s Use of Dictionaries, 47 BUFF. L. REV. 227 (1999); Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Remains a Fortress: An Update, 5 GREEN BAG 51 (2001).

During Supreme Court Terms 2000-2001 through 2009-2010, the Justices have referenced dictionary definitions to define nearly 300 words or phrases. Yet the Court has never expressly explained the proper role and use of the dictionary in American jurisprudence. The Article studies the frequency and the approach the Justices have taken to citing dictionaries in the new century, and it considers the Court’s lack of a reasoned process for selecting or using dictionaries.

Part I examines the frequency of dictionary use in the new century as compared to past use, comparing the different Justices with respect to their dictionary usage and the dictionaries most frequently cited by the Court. Part II addresses the stages of dictionary use, from the initial decision to use a dictionary to define a word to the selection of the dictionary and the choice of definitions. Part III examines some recent cases that illustrate the approaches taken in using dictionaries to define terms from various sources, including the United States Constitution, statutes, and prior cases. The Article includes three comprehensive appendices that compile information from the twenty-first century cases listing: (1) the terms defined by the Court with references to the cases; (2) the Justices who have used a dictionary in opinions (along with their frequency of use and which dictionaries are used); and (3) the dictionaries used by the Court. These appendices, when combined with the authors’ previous articles examining the Supreme Court’s dictionary use through the twentieth century, provide a comprehensive compilation of the use of dictionaries since the Court began.

The Article concludes that, in the twenty-first century, the Court continues to use dictionaries at a high rate with little guidance for parties, lawyers or others regarding when to turn to dictionaries, which dictionaries to use, and how to use dictionaries. Although the authors are able to deduce several principles from the Court’s history, to date, the United States Supreme Court has issued no definitive decision squarely addressing the proper use of the dictionary. The ongoing usage of dictionaries by the United States Supreme Court and other courts continues to demonstrate the need for such guidance.
Download the article from SSRN at the link.

May 13, 2011

LCCHP Announces Student Writing Competition For 2011

The Lawyers' Committee for Cultural Heritage Preservation (LCCHP) announces its 2011Student Writing Competition in Cultural Heritage Law. The deadline is June 10th.

LCCHP is pleased to announce its fifth annual Student Writing Competition in Cultural Heritage Law. The deadline for this year's submissions is 10 June 2011. The first place winner will receive a prize of $1000, while the second place winner will receive $500. The winning papers may also be offered publication.

Competition Details

The submitted paper must be the sole work product of a student author who is currently enrolled in or who has recently graduated from an accredited law school.

The paper must be sponsored by a faculty member at the student's law school.

It must also follow law review style and formatting.

Suitable papers may address any aspect of cultural heritage law, including art, cultural property, historic preservation, indigenous peoples, and intangible heritage (but not intellectual property, except as it relates to cultural heritage).

Only papers written after June 2010 — and not previously published — are admissible.

Only one paper may be submitted per student.
Papers must be electronically submitted directly by the student or by a faculty sponsor on the student's behalf.
The judges will focus on the student's ability to critically analyze a current issue and present a solution OR to conduct legal historical research using original sources.

Two prizes will be awarded: a first place prize of $1000 and a second place prize of $500.

The winning papers may also be offered publication in the Journal of Cultural Heritage Law.

The deadline for the 2011 Competition is 10 June 2011.

To learn more, and see past winners, visit the official website.

May 11, 2011

New Law and Crime Related Shows For Fall

The networks are beginning to hint at their fall line-ups (more news should come next week). As one should expect, lawyers and law-related dramas figure mightily in new shows for the coming season. According to the Hollywood Reporter:

Fox is offering such fare as the spinoff "The Finder," (derived from the hit "Bones") from 20th Century Fox TV, and J. J. Abrams' mysterious crime drama "Alcatraz."  We won't be seeing a fourth season of "Lie To Me," based on the the work of psychologist Paul Ekman--it's cancelled. Law & Order: Los Angeles (nicknamed LOLA) is probably not returning on NBC, but stay tuned for a return of "Harry's Law," the Kathy Bates vehicle, and an adaptation of John Grisham's novel "The Firm." ABC is likely to bring back "Body of Proof," with Dana Delany as a surgeon who moves into a second career as a medical examiner), and a new "Charlie's Angels," a 21st version of the venerable Aaron Spelling series (1976-1981).

CBS will be topheavy with crime and criminals, with "The Mentalist," "Criminal Minds," twins "NCIS," and "NCIS: Los Angeles," and comedy "Mike and Molly" (well, Mike is a police officer!) all returning. "The Good Wife," a legal drama featuring the wonderful Julianna Margulies as an associate with a complicated home life and a cheating husband (Chris Noth) and Christine Baranski as a managing partner, will also probably return. Among new shows on CBS we are likely to see "The 2-2," (a new name: it was formerly titled "Rookies,") and another J. J. Abrams show, "Person of Interest," about a billionaire who helps fight crime (where do all these mysterious billionaires come from? Is he the same one who hires Charlie's Angels?) A show we may not see returning is "The Defenders" with Jim Belushi and Jerry O'Connell. Too bad; I have grown to like that show--the stars, including a much underused Jurnee Smollett, have good chemistry, and the writing is snappy. A better call might have been to move it to another night and let it find its audience.

Trying Too Hard To Understand the Constitution?

John F. Muller, Yale Law School, has published The Common Law Culture and the Enlightenment Ideal. Here is the abstract.

In this Article, I argue that some truths about our constitutional system are best left misunderstood. I make this argument by defending a self-deception at the core of our collective self-understanding. We often speak as if our constitutional system rests on an uncompromising inquiry into constitutional meaning. I contest the descriptive accuracy of this conventional wisdom yet defend the normative value of its perpetuation. The notion that we uncompromisingly pursue true constitutional meaning, I argue, derives from a deep constitutional commitment to Enlightenment thought. This notion, however, ignores a comparably deep constitutional commitment to the common law tradition, which privileges some considerations ahead of true constitutional meaning. Although we pay fealty to Enlightenment, we follow a contradictory path informed by both the Enlightenment ideal and the common law culture. This contradictory state of affairs and the misunderstanding upon which it rests, I argue, perpetuate a redemptive vision of our constitutional system vital to its preservation.
Download the paper from SSRN at the link.

May 9, 2011

Nordic Law and Social Justice

Pia Letto-Vanamo, University of Helsinki, Faculty of Law, has published Law and (Social) Justice - Nordic Perspectives as Helsinki Legal Studies Research Paper No. 5. Here is the abstract.

In the following, questions related to the relationship between law and justice will be discussed. The starting point lies mainly in legal history, but also topics relevant for current legal argumentation will be handled. The focus will be on what we call Nordic Law. It will be argued that there is something we can call justice and that positive law can - or should - be measured by it. With a historical introduction and some examples taken from Nordic legal literature, the author suggests that there are different "techniques" for bringing idea(s) of justice within modern legal systems. These techniques are historically determined, and there are local variations even within the "Nordic legal family" in their use. And there are differences between legal orders based on their openness to corrections for justice. Thus, when the meaning and future possibilities of the social justice concept in various legal systems is compared, the "technical" dimension - that of functions and means of various legal actors, especially their role and style in legal argumentation - cannot be neglected. In the following, techniques of legal scholarship will be discussed in particular.
Download the paper from SSRN at the link.


May 5, 2011

The Law School Experience

Adrien K. Wing, University of Iowa College of Law, has published One L Redux at 78 University of Missouri-Kansas City Law Review 1119 (2010). Here is the abstract.

This article is the personal story of Adrien Wing’s first year at law school and her struggle with prejudice as she tried to shatter the glass ceiling at Stanford Law School. She wrote this article 30 years after graduation while she was at her alma mater preparing for a reunion. It concludes with a commentary on improving legal teaching methods and imparting wisdom to her students.

"When they asked what I thought now about the 1L year, about law school in general, I said, ‘Despite the pain and agony, I would do it all again. I have learned that the law can have soul. The law can have heart. And I hope that in my teaching, I have shown generations of students that this must be so.'"
Download the article from SSRN at the link.

The Origins of Law

Jacques DeVille, University of the Western Cape, has published On Law’s Origin: Derrida Reading Freud, Kafka and Lévi-Strauss in volume 7 of the Utrecht Law Review (April 2011). Here is the abstract.

This article's main focus is 'Before the Law', a text by Derrida on Kafka's Before the Law, in which Derrida also comments on Freud's Totem and Taboo. Freud, in this text, enquires into the origins of religion, morality, social institutions and law. He contends that this origin is to be found in a crime, the killing of the primal father by a band of brothers, followed by the institution of totemism and the incest prohibition. Freud's psychoanalytical account of the origins of the totem and the prohibition of incest has been challenged from various quarters. The article enquires whether Freud's Totem and Taboo and its theory of the primal horde in relation to the origins of law should be dismissed in light of these challenges, or whether some insight can still be gained from it. The second option is affirmed, with Derrida's 'Before the Law' pointing to the importance of reading Freud in a way analogous to Kafka's Before the Law, and more specifically to the need for a reconsideration of the originary nature of the Oedipus complex, so as to arrive eventually at a kind of 'pre-origin' of law.
Download the article from SSRN at the link.

May 4, 2011

What Happened After Midnight?

Jed Glickstein, Yale Law School, has published After Midnight: The Circuit Judges and the Repeal of the Judiciary Act of 1801. Here is the abstract.

A student of law or American history almost always encounters the midnight judges as a mere footnote to Marbury v. Madison. Yet despite an outpouring of work on the conflict between the Republicans and the federal judiciary in the wake of the Election of 1800, insufficient attention has been paid to the judges’ role in the crisis they served to precipitate. This Article aims to correct that oversight.

Drawing on a wide variety of documentary evidence, including a cache of archival letters between the judges that has escaped notice to date, it sketches a comprehensive picture of the judges’ efforts in defense of their offices. It also adds important new details and contextualizes others, and corrects a persistent misconception in the existing literature. And, by taking a broader perspective than the standard Supreme Court-centered account of the repeal of the Judiciary Act of 1801, it highlights the ways in which practical, political, and constitutional factors shaped and constrained the (non)resolution of the episode’s core issue: the constitutionality of abolishing the office of a sitting judge. This new evidences argues for a revised understanding that puts the midnight judges, if not on the marquee, at least in a supporting role in working out the meaning of the repeal.
Download the paper from SSRN at the link.

The Ancient Greeks' Ideas of Injustice and Guilt

Carlos Arturo Gómez Pavajeau, Universidad Externado de Colombia, has published Injusto Y Culpabilidad En Los Grandes Filósofos Griegos (Unfair and Guilt in the Great Greek Philosophers), number 91 in Derecho Penal y Criminologia (2010). Here is the abstract.

The period after the obscurantism of the Middle Ages was called, quite rightly, as the Renaissance. This expression refers, no doubt thinking of the great Greek philosophers, however, with regard to criminal law, very little has worked his connections with such thinking, it seems that there only influenced the illustration, with proposals from scratch and no reference to the past. With this contribution I want to prove that this is not entirely true, since, mutatis mutandi keeping some differences, the most important achievements of modern criminal law were explicitly or implicitly contained in the thinking of the great Greek philosophers.
Note that the full text is in Spanish.

The Persistence of Culture: The Case of Anti-Semitism in German Communities From the Medieval Period to the 1930s

Nico Voigtländer, University of California, Los Angeles, School of Management, & National Bureau of Economic Research, and Hans-Joachim Voth, Universitat Pompeu Fabra, Faculty of Economic and Business Sciences, and Centre for Economic Policy Research (CEPR) have published Persecution Perpetuated: The Medieval Origins of Anti-Semitic Violence in Nazi Germany. Here is the abstract.

How persistent are cultural traits? This paper uses data on anti-Semitism in Germany and finds continuity at the local level over more than half a millennium. When the Black Death hit Europe in 1348-50, killing between one third and one half of the population, its cause was unknown. Many contemporaries blamed the Jews. Cities all over Germany witnessed mass killings of their Jewish population. At the same time, numerous Jewish communities were spared these horrors. We use plague pogroms as an indicator for medieval anti-Semitism. Pogroms during the Black Death are a strong and robust predictor of violence against Jews in the 1920s, and of votes for the Nazi Party. In addition, cities that saw medieval anti-Semitic violence also had higher deportation rates for Jews after 1933, were more likely to see synagogues damaged or destroyed in the Night of Broken Glass in 1938, and their inhabitants wrote more anti-Jewish letters to the editor of the Nazi newspaper Der Stürmer.
Download the paper from SSRN at the link.

May 3, 2011

Dan Solove's New Book Makes Its Debut

Daniel Solove's new book Nothing To Hide: The False Tradeoff Between Privacy and Security (Yale University Press, 2011) is now available. Here's a description.

"If you've got nothing to hide," many people say, "you shouldn't worry about government surveillance." Others argue that we must sacrifice privacy for security. But as Daniel J. Solove argues in this important book, these arguments and many others are flawed. They are based on mistaken views about what it means to protect privacy and the costs and benefits of doing so. The debate between privacy and security has been framed incorrectly as a zero-sum game in which we are forced to choose between one value and the other. Why can't we have both?
In this concise and accessible book, Solove exposes the fallacies of many pro-security arguments that have skewed law and policy to favor security at the expense of privacy. Protecting privacy isn't fatal to security measures; it merely involves adequate oversight and regulation. Solove traces the history of the privacy-security debate from the Revolution to the present day. He explains how the law protects privacy and examines concerns with new technologies. He then points out the failings of our current system and offers specific remedies. Nothing to Hide makes a powerful and compelling case for reaching a better balance between privacy and security and reveals why doing so is essential to protect our freedom and democracy.
Although the publication date reads May 31, I've already received my copy.

Holmes' Dissents

Allen Mendenhall, Auburn University, Temple University, West Virginia University, & Furman University, has published Holmes and Dissent (forthcoming in the Journal Jurisprudence). Here is the abstract.

Holmes saw the dissent as a mechanism to advance and preserve arguments and as a pageant for wordplay. Dissents, for Holmes, occupied an interstitial space between law and non-law. The thought and theory of pragmatism allowed him to recreate the dissent as a stage for performative text, a place where signs and syntax could mimic the environment of the particular time and place and in so doing become, or strive to become, law. Dissents were, for Holmes, sites of aesthetic adaptation. The language of his dissents was acrobatic. It acted and reacted and called attention to itself. The more provocative and aesthetic the language, the more likely it was for future judges and commentators to return to that dissent to reconsider Holmes’s argument – the more likely, that is, that non-law might become law. In this sense, language for Holmes was not just a vehicle for law but also law itself. This article argues that Holmes’s dissents both reflect and revise pragmatist philosophy and also that the outgrowth of the dissent has to do with American pragmatism. Focusing on Lochner v. New York (1905), Abrams v. United States (1919), and Bartels v. Iowa (1923), this article shows how Holmes’s dissents represent an aesthetic adaptation of pragmatism that allows his writing to become memorable not just for the ideas it articulates, but also for the way it articulates ideas.
The full text is not available from SSRN.

British Women On the Bench

Michael Blackwell, London School of Economics & Political Science, has published Old Boys' Networks, Family Connections and the English Legal Profession. Here is the abstract.

A decade and a half on from Lord Taylor’s promise that “there will be more [female judges]… and they will not all be the sisters of the Lord Chancellor!”, this paper assesses the changes to the composition of the higher judiciary over this period, in terms of gender and educational, professional and socio-economic background. Descriptive statistics are presented on how these characteristics have changed over the period, for members of the High Court, Court of Appeal and House of Lords. These show only slight improvement in the representation of women and little change to the proportion educated other than at Oxbridge and public schools. Obituaries and other sources are used to illustrate the high socio-economic class, often with legal connections, into which many judges were born.

To show that this is not solely, at least in respect of educational background, a result of the pool from which such judges are recruited, this paper contrasts these statistics with those of QCs appointed since 1965. It also uses event history analysis to see how these diversity characteristics have affected propensity to be appointed to the High Court and subsequently promoted during this period.

Finally, to assess the potential for future increases in judicial diversity, this paper contrasts the gender and educational background of the solicitors and barristers profession and the speed of change thereto in recent years – showing both a greater diversity and rate of change with solicitors. The significantly lower rate of solicitor applicants appointed in selection exercises to the High Court is noted. The paper concludes by suggesting a reappraisal of the appointment criteria to increase the representation of solicitors and so facilitate improved judicial diversity.
Download the paper from SSRN at the link.

The History and Theory of Food and Drug Law

Kara W. Swanson, Northeastern University School of Law, has published Food and Drug Law as Intellectual Property Law: Historical Reflections at 2011 Wisconsin Law Review 329. Here is the abstract.

This Article returns to the late nineteenth and early twentieth centuries to consider food and drug law as intellectual property law. Today, Americans are engaged in two separate debates about food and drugs. One centers on the safety of these consumables, and the effectiveness of the Food and Drug Administration. The other is spurred by serious questions of equity involving the ownership and pricing of patented pharmaceuticals and crops, and centers on patent law and the Patent and Trademark Office. These debates were once part of a single broad conversation about food and drugs. This Article uses an historical perspective to understand the separation of these debates and to consider the opportunities that arise from considering food and drug law as intellectual property law. It argues both that early food and drug law was influenced by intellectual property concerns and that the separation of intellectual property policy from federal food and drug regulation was neither inevitable nor inconsequential. Drawing on the history of science, technology, and medicine, this Article reexamines the early pure-food-and-drug movement as, in part, an anti-intellectual-property movement. It uncovers the opposition to trade secrets that supported an alliance between medical opponents to proprietary medicines and agricultural opponents to artificial foods that successfully supported early federal food and drug regulation, and the simultaneous failure of a medical campaign against drug patents. By considering the historical shift in the pharmaceutical market from trade secrets to patents in relation to the recent trend toward patents in agribusiness, this Article considers the lessons from history for a reunification of food and drug policy with intellectual property policy.
Download the article from SSRN at the link.

May 2, 2011

The Greek and Roman Laws of Obligations

Helge Dedek, McGill University Faculty of Law, and Martin Schermaier have published Obligation (Greek and Roman), in the Encyclopedia of Ancient History (Roger Bagnall, Kai Brodersen, Craige Champion, Andrew Erskine, and Sabine Huebner eds., Oxford: Wiley & Blackwell, 2011). Here is the abstract.

Justinian’s Institutes defined the concept of obligation as follows: Obligatio est iuris vinculum quo necessitate adstringimur alicuius solvendae rei secundum nostrae civitatis iura (Iustinian Institutiones The obligatio is a "legal tie" (iuris vinculum) that binds us to render a performance to another person according to our laws. This definition timelessly expresses the nature of an obligation: a debtor owes a duty to the creditor. The content of such a duty, and exactly how it may or must be performed, are infinitely variable and determined by the event that gives rise to the obligation, not by the concept of obligation itself. When we examine the idea of an obligation, it is possible to distinguish between the debtor’s duty and the debtor’s potential liability. The concept of "duty" expresses that someone (the debtor) owes something to another (the creditor). The concept of "liability" adds that the debtor can be held responsible if he breaches such a legal duty: the creditor can seek the assistance of the courts if he does not receive what was owed to him.
Download the text from SSRN at the link.

Constitutional Discourse and Systems Theory

Pablo Holmes, Flensburg University, has published The Rhetoric of ‘Legal Fragmentation’ and its Discontents: Evolutionary Dilemmas in the Constitutional Semantics of Global Law in volume 7 of the Utrecht Law Review (April 2011). Here is the abstract.

This paper engages in the current debate on legal fragmentation and social inclusion from the perspective of systems theory. Its particular focus is directed at the changing patterns of social inclusion/exclusion under the condition of the emerging constitutional discourses of world law. While fragmented global law would still be able to safeguard functional differentiation, the neutralization of exclusionary dynamics is successively failing. This failure is attributed to the decline of politics in world society. A fragmented global law operates to a lesser degree in concert with national politics in order to guarantee the modern imperative towards full inclusion.
Download the article from SSRN at the link.

IP Stories

Jessica M. Silbey, Suffolk University Law School, has published Comparative Tales of Origins and Access: Intellectual Property and the Rhetoric of Social Change at 61 Case Western Reserve Law Review 195 (2010). Here is the abstract.

This Article argues that the open-source and anti-expansionist rhetoric of current intellectual-property debates is a revolution of surface rhetoric but not of deep structure. What this Article terms “the Access Movements” are, by now, well-known communities devoted to providing more access to intellectual-property-protected goods, communities such as the Open Source Initiative and Access to Knowledge. This Article engages Movement actors in their critique of the balance struck by recent law (statutes and cases) and asks whether new laws that further restrict access to intellectual property “promote the progress of science and the useful arts.” Relying on cases, statutes and recent policy debates, this Article contrasts the language of traditional intellectual-property law (origins and exclusivity) with the new language of the Access Movements (anti-origins and access). The Article compares the language of the Access Movements to that of sociopolitical movements of the past, and it draws lessons for successful and unsuccessful uses of rhetoric to enact social change. The Article concludes by showing how the language of the Access Movements retains certain core elements of the intellectual-property regime to which it is reacting and investigates whether this is an effective strategy (whether or not a conscious one) to stimulate change.
Download the article from SSRN at the link.