June 29, 2011

Call For Papers

From Robert L. Tsai, Professor of Law, American University, Washington College of Law

Deadline: March 15, 2012

“Hate and Political Discourse”

Journal of Hate Studies

Volume X, No. 1 (2012/13)

Guest Editor:

Robert L. Tsai, J.D.

Professor of Law, American University, Washington College of Law

About the Theme

Often shielded by constitutional rules and nurtured by political discourse, hate has a
mercurial existence in the popular imagination. In the “arena of angry minds,” as Richard Hofstadter called American political life, political actors sometimes choose to condemn hatred, distance themselves from it, appeal to its existence, or foment it.

Even when subjugation, discrimination, or violence is not the goal, the politics of hate can pay off. Rather than seeking its total eradication, many democracies assume the permanence of hate and seek to minimize its excesses or to punish and prohibit specific expressions. Are such assumptions well-founded, and such strategies wise?
Some of the social groups marked through the techniques of hatred have changed over time, as the political dividends for resorting to strategies of hate have shifted, while other groups seem to be consistent targets of hate.

Technological advances offer new tools to combat hatemongering even as they can make demagogues more effective.

What are the structural conditions that allow hate to thrive or might permit its isolation? How might inroads be made in the law or politics of inclusion, especially in countries with strong commitments to rhetorical freedom and popular sovereignty?

Call for Submissions

The Journal of Hate Studies welcomes original papers treating the theme, “Hate and
Political Discourse,” from a wide range of disciplines, including history, law, philosophy, political science, sociology, criminal justice, social psychology, economics, anthropology,
geography, journalism, communications, rhetoric, literature, educational studies, and
cultural studies.

We especially encourage original treatments of the following topics:

• Hate and popular sovereignty

• How hate can foster alternative communities and movements

• Cultural foundations of hate

• Historical changes in rhetorical strategies

• Political parties and hate

• Necessary political conditions for hate

• Empirical approaches to the problem of hate

• The role of hate in nation-building

• How literature, rhetoric, journalism or other forms of communication can fuel
or discourage hate

• Geographical differences in how hatred is sustained or combated

• Comparative approaches and cross-cultural challenges

• New technologies in combating or fomenting hatred in the realm of political

We anticipate hosting an invitational Symposium in Fall 2012, either at American
University or Gonzaga University, in conjunction with the publication of this Volume.

Authors published in this Volume would be invited to present their work at the

About the Journal

The Journal of Hate Studies is a peer-reviewed publication of the Gonzaga University
Institute for Hate Studies. The Journal of Hate Studies is an international scholarly
journal promoting the sharing of interdisciplinary ideas and research relating to the study
of what hate is, where it comes from, and how to combat it. It presents cutting-edge
essays, theory, and research that deepen the understanding of the development and
expression of hate.

Guidelines for Submissions

Submissions are typically expected to be between 5,000 and 10,000 words.

Submissions may be made in either of the following ways.

• As an attachment sent by email to hatestudies@gonzaga.edu

• Through the Journal’s online site


Submissions should be made in MS Word format. Please do not submit PDFs.

Submissions should be presented in APA format, with endnotes rather than footnotes.

However, legal scholarship may be presented in Bluebook or ALWD.

More information about submission guidelines, the Journal of Hate Studies, and the

Gonzaga University Institute for Hate Studies can be found at


For Questions or Communications

Robert L. Tsai, J.D.

Guest Editor

Professor, American University Washington College of Law



John Shuford, J.D., Ph.D.

Director, Gonzaga University Institute for Hate Studies



Fighting It Out In a Seventeenth Century Literary Venue

José Calvo González, University of Málaga Faculty of Law, has published Quevedo en tela de juicio, o sea El Tribvnal de la ivsta vengança de Luis Pacheco de Narváez. (De contiendas literarias y Derecho en la España del s. XVII),  525 in Estudios Jurídicos en Homenaje al Profesor Alejandro Guzmán Brito, volume 1 (Patricio-Ignacio Carvajal and Massimo Miglietta eds; Edizioni dell'Orso, Alessandria, 2011). Here is the abstract.

The paper examines the “procedural drama” created by Luis Pacheco de Narváez (1570 - 1640) in his Tribunal de la justa venganza [Court the just vengeance] (1635) for the prosecution of literary aesthetics (and moral ideas and values) Quevedo´s [Francisco de Quevedo y Villegas (1580-1645)].
The uniqueness of the case in the frequent literary controversies of the time lies in the nature of judicial inquiry that was built. In this legal-procedural dimension reprimanded experiencing a profound rethinking of the semantic roles in the “production of sens” between Law and Literature/ Literature and Law.
The essay is also available online at the Italian Society for Law and Literature (ISLL) website.

Distinctions Between Construction and Interpretation

Lawrence B. Solum, Georgetown Law School, has published The Interpretation-Construction Distinction at 27 Constitutional Commentary 95 (2010). Here is the abstract.

The interpretation-construction distinction, which marks the difference between linguistic meaning and legal effect, is much discussed these days. I shall argue that the distinction is both real and fundamental – that it marks a deep difference in two different stages (or moments) in the way that legal and political actors process legal texts. My account of the distinction will not be precisely the same as some others, but I shall argue that it is the correct account and captures the essential insights of its rivals. This Essay aims to mark the distinction clearly!

The basic idea can be explained by distinguishing two different moments or stages that occur when an authoritative legal text (a constitution, statute, regulation, or rule) is applied or explicated. The first of these moments is interpretation – which I shall stipulate is the process (or activity) that recognizes or discovers the linguistic meaning or semantic content of the legal text. The second moment is construction – which I shall stipulate is the process that gives a text legal effect (either my translating the linguistic meaning into legal doctrine or by applying or implementing the text). I shall then claim that the difference between interpretation and construction is real and fundamental. Although the terminology (the words "interpretation" and "construction" that express the distinction) could vary, legal theorists cannot do without the distinction.

One more preliminary point: the topic of this Essay is narrow and conceptual. This Essay, has three goals: (1) to explicate the nature of the interpretation-construction distinction, (2) to argue that this distinction marks a real difference, and (3) to suggest that the distinction is helpful in that it enables legal theorists to clarify the nature of important debates, for example debates about constitutional interpretation. The Essay does not offer any particular theory of interpretation or construction – that it is, it remains agnostic about questions as to how linguistic meaning can be discerned or how legal content ought to be determined. Nor does this theory offer an account of the history and origins of the distinction. Those topics are important, but raising them in this Essay might shift attention away from prior questions about the nature and value of the distinction itself.

Here is the roadmap. In Part II, this Essay shall discuss two preliminary sets of ideas: (1) vagueness and ambiguity, and (2) semantic content and legal content. In Part III, this Essay shall use these preliminary ideas to answer the questions, "What is interpretation?" and "What is construction?" In Part IV, this Essay shall consider some objections to the interpretation-construction distinction. In Part V, this Essay shall develop the argument that the distinction is fundamental and indispensable.
Download the article from SSRN at the link.

Categorizing Approaches To Law and Culture

Menachem Mautner, Buchmann Faculty of Law, Tel Aviv University, has published Three Approaches to Law and Culture at 96 Cornell Law Review 839 (2011). Here is the abstract.

This article discusses three major approaches connecting culture to law. The first is the historical school that arose in German jurisprudence in the first half of the nineteenth century. It views law as a product of a nation’s culture and as embedded in the daily practices of its people. The second approach is the constitutive approach that developed in American jurisprudence in the 1980s. This approach views law as participating in the constitution of culture and thereby in the constitution of people’s minds, practices, and social relations. The third approach, found in twentieth-century Anglo-American jurisprudence, views the law that the courts create and apply as a distinct cultural system. Law practitioners internalize this culture in the course of their studies and professional activity, and this internalization comes to constitute, direct, and delimit the way these practitioners think, argue, resolve cases, and provide justifications. The writings of Karl Llewellyn, James Boyd White, Pierre Bourdieu and Stanley Fish are discussed. Beyond these three approaches the article points out nine additional approaches in legal scholarship concerning the relationship between law and culture. This mapping is tentative. It is hoped, however, that it gives readers a preliminary idea of the widespread use of the concept of culture in the law and that it invites further reflection on other possible ways to employ the concept of culture in legal scholarship for a richer understanding of the legal phenomenon.
The full text is not available from SSRN.

Law, Literature, and the Media

Maria Francisca Carneiro, Federal University of Paraná, and Maria Fernanda Loureiro have published Law, Literature and the Media. Here is the abstract.

In this article we consider the relation between Law and Literature. The possibility of investigating literary elements of Law implicit in popular culture leads us to inquire whether the media can also be an object of studies of juridical literature.
Download the paper from SSRN at the link.

A New Journal Devoted To Christopher Marlowe

From the Chronicle of Higher Education: A new journal on Christopher Marlowe is making its debut. Indiana University/Purdue University, Fort Wayne is publishing Marlowe Studies as an annual.

In the first issue:

Meghan C. Andrews, University of Texas, Austin, “The 1663 Doctor Faustus and the Royalist Marlowe”

James Biester, Loyola University of Chicago, “A Storm Brewing: Inspirations for The Tempest in Marlowe and Jonson”

Bruce Brandt, South Dakota State University, “A Decade Bibliography of Christopher Marlowe, 2000-2009”

Douglas Bruster, University of Texas, Austin, “Christopher Marlowe and the Verse / Prose Bilingual System”

Sara Munson Deats, University of South Florida, “Mars or Gorgon? Tamburlaine and Henry V”

R. Carter Hailey, College of William and Mary, “The Publication Date of Marlowe’s Massacre at Paris, with a Note on the Massacre Manuscript Leaf, Folger J.b.8”

Lisa Hopkins, Sheffield Hallam University, “Playing with Matches: Christopher Marlowe’s Incendiary Imagination”

Jeremy Lopez, University of Toronto, “Alleyn Resurrected”

Paul Menzer, Mary Baldwin College, “Shades of Marlowe”

Barbara Parker, William Paterson University, “‘Cursèd Necromancy’: Marlowe’s Faustus as Anti-Catholic Satire”

Jeffrey Rufo, Trinity University, “Marlowe’s Minions: Sodomitical Politics in Edward II and The Massacre at Paris”

June 28, 2011

Evolutionary Rap

After taking the rap for the decline of morality for so many decades, Charles Darwin now has a rap of his own. Scholar Baba Brinkman, described as "[a] tall blond Canadian of Dutch ancestry," has put Mr. Darwin and a lot of other cool evolution stuff into 90 minutes' worth of rappa-tainment at Manhattan's Soho Playhouse. Olivia Judson reviewed the show for the New York Times last year and loved it, as does David Rooney, who points out that Mr. Brinkman's show is also a guide to the evolution of hip-hop. Can't make it to Manhattan? Swag is available via the website, and at retailers online.

Good Bye To Nearly All That

Alessandra Stanley provides a look back at yet another series in Dick Wolf's venerable franchise, Law & Order: Criminal Intent, which aired its last first-run episode this week.

The Protection of Folklore

Ayoyemi Lawal Arowolo, Babcock University School of Law and Security Studies, has published Copyright Law and the Recognition of 'Folkloric Creations' and 'Folk Medicine' in Africa, at 5 Journal of Black and African Arts and Civilization 33 (2011). Here is the abstract.

Creations in traditional African societies are often categorized as folklore which is protectable under copyright law as expressions of folklore. They are indeed precious jewels which bear eloquent testimony to the wonderful civilisation and culture flourishing in traditional communities in Africa. The rich cultural heritage of Africa is a sign of the creative activities of the past. The present has not given enough recognition to the role and protection of works based on folklore thus compounding the misappropriation of folkloric works and folk medicine. The controversy on the protection of folklore is an issue African countries face and need to resolve. The invaluable role of folklore in African societies and the deficiencies in protecting creative works within traditional parameters to encourage intellectual creations is examined in this paper.
Download the article from SSRN at the link.

June 27, 2011

Law and Aesthetics

Maria Francisca Carneiro, Federal University of Parana, has published Law and Aesthetics. Here is the abstract.

The aim of this article is to describe some aspects of the relation between law and aesthetics. To do this, two lines of aesthetics are examined, one gnoseological and the other artistic. The beautiful and the good are related to the just by considering the possibility of the existence of poetics in law, including autopoiesis. An aesthetic theory of justice is sketched out based on the criterion of proportionality, which is common to both art and law, as well as the faculty of judging. The similarities and differences between aesthetic judgment and juridical judgment are therefore discussed. It is concluded that the ludic impulse, and therefore the game, is an element which is common to both aesthetics and law, in light of which the importance is stressed of carrying out deeper studies concerning the aesthetic game in law, for example through theories of the balance between determination and indetermination. Both in the game as in law, there are defined and undefined rules to be followed, and in both there are also psychological and behavioral aspects in common.
Download the paper from SSRN at the link.

Law, Culture and the Humanities, June 2011 Issue

The June 2011 issue of Law, Culture and the Humanities contains the following articles:

Austin Sarat, Editorial

Colin Dayan, Who Owns the Body, and When Does It Die

Irus Braverman, Hidden In Plain View: Legal Geography From a Visual Perspective

Andreas Philippopoulos-Mihalopoulos, Law’s Spatial Turn: Geography, Justice and a Certain Fear of Space

Nicholas Blomley, Cuts, Flows, and the Geographies of Property

Lior Barshack, The Constituent Power of Architecture

Paul Raffield, The Elizabethan Rhetoric of Signs: Representations of Res Publica at the Early Modern Inns of Court

Lynn Mills Eckert, A Critique of the Content and Viewpoint Neutrality Principle in Modern Free Speech Doctrine

Ruth M. Buchanan, "Passing through the Mirror": Dead Man, Legal Pluralism and the De-territorialization of the West

Diana Young, Law and the Foucauldian Wild West in Michael Cimino’s Heaven’s Gate

Keally McBride, Book Review: Emergency Politics: Paradox, Law, Democracy By Bonnie Honig, Princeton University Press, 2009, 218 pp. $26.95 (Cloth). ISBN-10: 069114298X

Rebecca Johnson, Book Review: The Scene of Violence: Cinema, Crime, Affect By Alison Young, Routledge, 2009, 200 pp. $53.95 (Paperback), $130 (Cloth). ISBN 978-0-415-58508-8

Judith Ferster, Book Review: Picking Cotton: Our Memoir of Injustice and Redemption By Jennifer Thompson-Cannino and Ronald Cotton (with Erin Torneo), St. Martin’s Press, 2009. 298 pp. $25.95 (Cloth). ISBN-13: 978-0-312-37653-6; ISBN-10: 0-312-377653-7

Paola Pasquali, Book Review: The Spatial, the Legal and the Pragmatics of World-Making. Nomospheric Investigations By David Delaney, Routledge-Cavendish, 2010, 224 pp. $125, £75 (Cloth). ISBN 978-0-415-46319

Roger S. Fisher, Book Review: Law’s Cosmos: Juridical Discourse in Athenian Forensic Oratory By Victoria Wohl, Cambridge University Press, 2010, 362 pp. $99.00 (Cloth). ISBN 978-0-521-11074-7

Frederick Cowell, Book Review: Individual Human Rights: A History By David Whelan, University of Pennsylvania Press, 2010, 328 pp. $59.95, £39.00 (Cloth). ISBN 978-0-8122-4240-9

Thomas Jefferson and Slavery

Aaron Schwabach, Thomas Jefferson School of Law, has published Thomas Jefferson, Slavery, and Slaves, in volume 33 of the Thomas Jefferson Law Review (2010). Here is the abstract.

Thomas Jefferson was a controversial and divisive figure during his own lifetime, and has not grown less so with time. Perhaps no other person had a greater impact on the shaping of the American legal system than Jefferson. And perhaps no other person so completely embodied the contradictions and hypocrisies of the early American approach to questions of slavery and race: as Frederick Douglass put it, "the contradiction in the Constitution." Arguments may and do rage about Jefferson's religious faith or lack thereof, and on his views on federalism and states' rights or on the balance between government and individual liberty. Yet nothing about Jefferson elicits as immediate and emotional a response as his peculiarly complex relationship to the institution of slavery, and consequently to race.

The three sections of this article provide a preliminary exploration of Jefferson's views on slavery and race, and his relationships with slavery and slaves. The first attempts to describe Jefferson's relationship to the institution of slavery, both as a slave owner and as a political figure; as much as possible, it presents Jefferson's views on slavery and on race in his own words. This section also sets forth some of the notable features of the law of slavery in Jefferson's time, and attempts to measure Jefferson's impact on slavery.

The second section discusses the case of Howell v. Netherland, one of the two cases argued by Thomas Jefferson preserved in the law reports of colonial Virginia (compiled by Jefferson himself). Samuel Howell, an indentured servant, brought an action against his master for freedom; Jefferson represented him, unsuccessfully, before a judge (George Wythe, Jefferson's former law professor) who was far less ambivalent than Jefferson in his personal opposition to slavery.

The third section discusses the relationship, or what is known and what is believed and disbelieved about it, between Thomas Jefferson and Sally Hemings. Hemings, a slave, was the half-sister of Jefferson's wife, and he was and is widely believed to have been the father of her children. The lives of Jefferson, Hemings, and their children and other family members are historically interesting. Our latter-day reactions to ongoing discoveries about them are at least as interesting for what they say about us and the degree to which, as a nation, we have succeeded or failed in coming to terms with the divide that defined Jefferson and his times.
Download the article from SSRN at the link.

The History of Cohabitation, 1600-2010

Rebecca Probert, University of Warwick School of Law, has published 'From Fornicators to Family: Cohabitants and the Law, 1600-2010'. Here is the abstract.

There is a widespread assumption among scholars and other commentators that the modern popularity of cohabitation is nothing new, but simply a reversion to older trends. Yet this is based on fundamental misunderstandings of the language used to describe relationships outside marriage and their treatment by the law. In the eighteenth century – and well into the twentieth – the term ‘cohabitation’ did not necessarily mean that the parties were sharing a home. Nor was there any concept of ‘common-law marriage’: rather than being treated as married, couples who were cohabiting risked punishment for fornication. This paper traces the way in which the law has moved from treating cohabitants as ‘fornicators’ to accepting them as ‘family’. It provides new evidence on the extent of cohabitation in earlier centuries, identifies linguistic faux amis, and evaluates the relationship between law and practice. While the increase in cohabitation may seem to have occurred without legal encouragement, an analysis of women’s magazines and newspapers suggests that the way in which the law was misunderstood was more important than what it actually was.
Download the paper from SSRN at the link.

June 25, 2011

Dictionaries and Legal Interpretation

Stephen C. Mouritsen has published The Dictionary Is Not a Fortress: Definitional Fallacies and a Corpus-Based Approach to Plain Meaning at 2010 Brigham Young University Law Review 1915. Here is the abstract.

"Plain meaning," said Judge Frank Easterbrook, "as a way to understand language is silly. In interesting cases, meaning is not 'plain'; it must be imputed; and the choice among meanings must have a footing more solid than a dictionary."

This paper proposes an empirical method for determining the "ordinary meaning" of statutory terms; an approach grounded in a linguistic methodology known as Corpus Linguistics. I begin by addressing a number of commonly held, but ultimately erroneous assumptions about the content and structure of dictionaries – assumptions that find their way into judicial reasoning with alarming frequency.

I then outline an approach to the resolution of lexical ambiguity in statutory interpretation – an approach based on Corpus Linguistics methods. Corpus Linguistics is an empirical methodology that analyzes language function and use by means of large electronic databases called corpora. A corpus is a principled collection of naturally occurring language data, typically tagged with grammatical content and searchable in such a way that the ordinary use of a given term in a given context may be ascertained.

Though Corpus Linguistics is not a panacea, the methodology has the potential to remove the determination of ordinary meaning from the black box of the judge's mental impression and render the discussion of the ordinary meaning of statutory terms one of tangible and quantifiable reality.
Download the article from SSRN at the link.

Foucault's Footsteps

Mariana Valverde, University of Toronto Centre of Criminology, has published Specters of Foucault in Law and Society Scholarship at 6 Annual Review of Law and Social Science 45 (2010). Here is the abstract.

To reflect on how we, in 2010, might make the best use of the analytical tools developed by Michel Foucault, we need first to go back to the 1970s and situate his work in the intellectual history of the European left. We then see that Foucault was extremely careful to avoid developing a new model, a grand social theory that might replace the Marxism that was dominant then. Instead, he cultivated more empirically grounded, historically specific habits of thought, in a series of books that did not follow a consistent plan. In Foucault's work, the basic terms are themselves tactical weapons, and hence do not have fixed meanings. That is, the terms are not concepts. This has gone largely unnoticed in the literature: Most of the scholars who use Foucault adopt the content but use it to prop up old forms. The governmentality literature has been particularly influential in many law and society circles, and it tends to use Foucault to produce an improved sociology of modernity - rather than to question our own desire to call ourselves modern and challenge our yearning for static models. This review examines one attempt to turn Foucault into a legal philosopher, a more novel but equally problematic effort to use Foucault to renovate old disciplines. The key argument of the review is that Foucault's work is most useful when, rather than attempt to “apply” it, we use it as inspiration to ourselves to examine the preconditions and foundations of our own present's intellectual habits.
The full text is not available from SSRN.

June 24, 2011

Law and Humanities, June 2011 Issue

The June issue of Law and Humanities contains:

Paul Raffield and Gary Watt, Editorial

Christian Biet and Lissa Lincoln, Introduction: Law and Literature

Gilles Lhuilier, Law & Literature (as an epistemological break in legal theory)

Allison Tait and Luke Norris, Narrative and the Origins of Law

Leif Dahlbert, Before the Temple of Justice: Reading Roman Law Reading

Klaus Stierstorfer, Klaus, Law and (which?) Literature: New Directions in Post-Theory?

Sebastian McEvoy, Slot-Thinking, or Categorisation, in Law and Literature

Laurent de Sutter, Piracy as Method: Nine Theses on Law and Literature

Marie Bouhaïk-Gironès, Simon Gabay, Jelle Koopmans, and Katell Lavéant, Legal Theory, Legal Practice and Drama

Joël Blanchard, A Logic of Appropriation: Practical Relationships between Law and Literature in the Middle Ages

Bruno Méniel, Law and Literature in the Humanist Period: Encyclopaedic versus Specialised Thought

Romain Descendre, The Experience of Law and Art Literature in the Sixteenth Century: Benvenuto Cellini's La Vita

Romain Jobez, From Obsessive Metaphors to Juridical Myth: Some Proposals for a Metaphorical Reading of Early Modern Law and Literature

Dominique Goy-Blanquet, Schools of Law, School of Drama

Natacha Israël, A Possible Co-Constitution of Theatre, Literature and Law, through the Example of Seventeenth-Century England

Stéphanie Loncle, Freedom of the Theatre: A Matter of Law?

Martial Poirson, For Extending the Domain of Research between Law, Economics and Literature

Christian Delage, Creating an International Court: A Movie Project

Jeanne Gaakeer, The Future of Literary-Legal Jurisprudence: Mere Theory or Just Practice?

Anna Krakus, Crime Stories: The Polish Secret Police File and the Conflation of the Legal and the Literary

Barbara Villez, Law and Literature: A Conjunction Revisited

Daniela Carpi, Equity: Assessing the Results of a Project

Gary Watt, The To Be Of And: Reflections on the Bridge

Paul Raffield, The Oneiric Imagination and the Dream of Law

Sandra Travers de Faultrier, Appearing, or 'Face-to-Face' Dialogue

Guy Spielmann, Judicial Spectacle Events as Reality and as Fiction

Lissa Lincoln, Justice Imagined: Albert Camus' Politics of Subversion

Richard H. Weisberg, A-N-D

The Intellectual Foundations of International Legal Discourse

Ulkf Linderfalk, Lund University Faculty of Law, has published On the Many Functions of International Legal Concepts, Part One. Here is the abstract.

According to the ontological stance adopted in this essay, a concept is a mental representation. It is the generalized idea of an empirical or normative phenomenon or state of affairs or a class of such phenomena or state of affairs. This essay is concerned with a specific category of concepts typically referred to as “concepts of international or international law” or “international legal concepts.” International legal concepts figure prominently in the way international lawyers think and talk about international law. This raises questions about their possible function or functions. Arguably, international legal concepts would not be used on such a large scale if they did not also fill important needs. What exactly are those needs? What does international legal discourse need legal concepts for? The Danish professor Alf Ross wrote on this topic in the beginning of the 1950’s. As he observed, the function of legal concepts is intimately connected with their role as meddling links or connectives in legal inferences. This observation led Ross to the conclusion that legal concepts serve to economize the expression of law in verbal form. As I will argue, by reason of their role as meddling links in legal inferences exactly, legal concepts serve a number of other functions as well. To substantiate my argument, in this essay I will illustrate the “camouflaging,” “normative,” “disclosing,” “systemizing,” and “formative” functions of legal concepts in international legal discourse.
Download the paper from SSRN at the link.

Capturing the "What" of International Criminal Law

Markus D. Dubber, University of Toronto Faculty of Law, has published Common Civility: The Culture of Alegality in International Criminal Law

Least ambitiously, this paper tries to capture the ethos of international criminal law. More ambitiously, it argues that international criminal law is, or can profitably be seen as, an ethos, rather than a body of law. In this telling, international criminal law, despite its name, emerges as an ethical-administrative enterprise rather than a legal one. If placed alongside global administrative law, international criminal law appears as alegal rather than illegal, as ignoring the principle of legality, say, rather than violating it, so that to criticize international criminal law for its illegality would be like faulting apples for not producing orange juice, and oranges for not making apple pie.
Download the paper from SSRN at the link.

June 23, 2011

Ever More Potter

J. K. Rowling has announced her new interactive website, Pottermore. Potter around it (a litter) here.  I'm sure Potter fans are already raven about it, even though it doesn't actually launch until October. The faithful, though, can sign up via email, to get sneak peeks on July 31st. 

More from the Daily Telegraph and the Hollywood Reporter.

Meanwhile, I direct your attention to these tomes:

The Law and Harry Potter (Jeffrey Snyder and Franklin Snyder, Carolina Academic Press, 2010).
The Ultimate Harry Potter and Philosophy: Hogwarts For Muggles (William Irwin and Greg Bassham, eds.; Wiley, 2010).
Want, Robert S., Harry Potter and the Order of the Court: The J. K. Rowling Copyright Case and the Question of Fair Use (NationsCourts.com, 2008).

Call For Papers: Justice In Ottoman Society

Juris Diversitas notes a  call for papers for a Workshop on Justice in Ottoman Society, being held January 7-8, 2012, at the Institut Français d’études Anatoliennes in Istanbul.

Looking For Like-ness

Bernard E. Harcourt, University of Chicago Law School, is publising Radical Thought from Marx, Nietzsche, and Freud, Through Foucault, to the Present: Comments on Steven Lukes’ ‘In Defense of False Consciousness’ in the University of Chicago Legal Forum. Here is the abstract.

In his essay “In Defense of ‘False Consciousness’” and book, Power: A Radical View, Steven Lukes mounts a forceful defense of the idea of false consciousness; however, Lukes presents false consciousness and the notion of truth regimes as mutually exclusive. In this essay, I suggest that there are important family resemblances between the theory of ideology in the Marxian tradition, especially as developed by the Frankfurt School, and the critique of truth regimes rooted in the Nietzschean tradition of genealogy, especially as developed by Foucault – family resemblances that make it counter-productive to argue that one theory would make us reject the other. The task is not to defend one theory at the expense of the other, but to explore the intricate relationship between the two in order to sharpen our own critical interventions. That is the goal of this essay, drawing on the radical thought of Marx, Nietzsche, Freud, and Foucault. In addition, I go further and call for resistance, not simply to this or that way of being governed, but resistance to truth. The task, as I see it, is to unmask and enlighten, but then to shed the tools we have used before those very beliefs become oppressive themselves.
Download the essay from SSRN at the link.


Sirus Kashefi, York University, Osgoode Hall Law School, has published A Look at Anarchism: The Broad, Paradoxical, and Living Ideas and Movements at the Core of Our Hierarchical, Dominative, and Oppressive Societies. Here is the abstract.

As a critical look, this paper analyzes that anarchism is not only a political philosophy (idea), but also a way of life or of protest against State law and existing order (action). Thus, unlike common opinion, anarchism is not a utopia. Indeed, due to the varieties and paradoxes of anarchist thought according to end and means, the anarchist movements have hitherto been heterogeneous and plural. Despite the vagueness, diverse, and paradoxical anarchist concepts, these movements share some common characteristics (freedom, mutuality, anti-imperisliam, and anti-war, for example), and fight against our hierarchical, dominative, and oppressive societies around the world by emphasizing individual and social freedoms, equality, and justice. As a matter of fact, heterogeneity and direct action have constituted two forces that keep alive the anarchist movements. Are they able to present some alternatives to our hierarchical, dominative, and oppressive societies? I will answer this question at the end of my paper through other critical questions.
Download the paper from SSRN at the link.

June 21, 2011

Resistance To Law

Richard A. Brisbin, West Virginia University, has published Resistance to Legality at
6 Annual Review of Law and Social Science 25 (2010). Here is the abstract.

The contingency of legality creates opportunities for individuals and collective associations to oppose its norms and requirements. This article examines the context and dimensions of resistance or opposition to legality, why resistance occurs, the strategies and tactics used to conduct resistance, the outcomes of acts of resistance, and whether resistance is a meaningful social and political activity.
The full text is not available from SSRN.

Federalist 10: Its Interpretation and Construction

Ian C. Bartrum, Drake Law School & Yale Law School, is publishing Constructing the Constitutional Canon: The Metonymic Evolution of Federalist 10 in Constitutional Commentary. Here is the abstract.

This paper is part of [sic] larger symposium convened for the 2010 AALS annual meeting. In it I adapt some of my earlier constitutional theoretical work to engage the topic of that symposium: the so-called “interpretation/construction distinction.” I make two related criticisms of the distinction: (1) it relies on a flawed conception of linguistic meaning, and (2) while these flaws may be harmless in the “easy” cases of interpretation, they are much more problematic in the difficult cases of most concern. Thus, I doubt the ultimate utility of the distinction as part of a “true and correct” model of constitutional theory.

Download the article from SSRN at the link.
First, I disagree that there are such things as “linguistic facts” that we might discover as part of an initial search for a clause’s bare “semantic meaning.” A great many sentences make assertions about the world whose correspondence cannot be verified as an empirical matter. This is most obviously true when we make vague assertions such as “John is bald.” This assertion may or may not correspond with the world; it depends upon the linguistic rules and convention surrounding our particular use of the word “bald” - it depends on what we think counts as “baldness.” One of the ways that we might make arguments for or against John’s baldness is by reference to paradigm cases of baldness and not-baldness; and in this essay I argue that this is analogous to the ways that we use canonical texts in our constitutional argument. But the important point for purposes of the interpretation/construction distinction is that “sentence meaning” depends upon the rules of proper linguistic usage, not the discovery of linguistic facts.

Second, in the easy cases - such as the age requirement for the Presidency - it may make little difference whether the phrase “35 years old” denotes a factual state of affairs or refers us to linguistic rules. In other words, there is such universal agreement about the interpretive rules in these cases that they may serve as something like “facts.” In such cases, it is possible to engage in the two-step kind of analysis that the interpretation/construction distinction suggests: We can agree upon a fairly objective interpretive referent, and then build out applicable legal rules. But in those cases where there is not broad agreement on the proper linguistic rules - such as the proper use of “equal protection” - it becomes quite apparent that there is no “linguistic fact" waiting for us to discover. Instead, our “interpretation” in these cases will depend upon what we can agree on as legitimate or proper uses of the phrase. Thus, in the cases of most concern, I think the underlying conceptual flaws impose a great limitation on the ultimate utility of the interpretation/construction distinction.

As I have said, in constitutional practice part of the argument about meaning will refer to paradigm cases of “equal protection” and “not-equal protection.” In our practice, I contend that canonical texts often serve as some these paradigm cases. But the symbolic meaning of these texts evolves also over time within our argumentative usage. And as the meaning of these texts change, so will the interpretive conventions surrounding constitutional language. Here I present the evolution of Federalist 10 as an illustrative example.

An Introduction To Law and Race Studies

Laura E. Gomez, University of New Mexico, has published Understanding Law and Race as Mutually Constitutive: An Invitation to Explore an Emerging Field in 6 Annual Review of Law and Social Science 487 (2010). Here is the abstract.

This article argues that law and race coconstruct each other. The idea that race is socially constructed has become widely accepted, and studies increasingly have explored law's role in shaping racial categories, racial conflict, racial ideology, and the racial order. Fewer studies have utilized a well-developed concept of race to examine how it has affected legislation, legal processes, legal ideology, and so forth. To explore how law and race are mutually constitutive, I draw on examples from a dozen monographs (all but one published since 1999) that are in-depth case studies of how law and race have interacted in diverse geographical regions over the past 400years. Cumulatively, they present new insights about how law and race are coconstructed to reproduce and transform racial inequality in society. They represent an emerging genre of sociolegal studies that reveals how law and race shape each other in an ongoing, dialectic process.
The full text is not available from SSRN.

June 20, 2011

Speak Up, Memory

From the New Yorker this week: "Lit Lawyers"--a discussion of the implications when accusations are hurled. Greg Mortenson is only the latest author accused of fabricating parts of a popular book (Three Cups of Tea). Now two lawsuits are pending. Do buyers and readers of what publishers and authors claim is nonfiction have a real cause of action when works turn out to be fictionalized, in whole or in part? Or should caveat emptor rule? And in the matter of those lawsuits--cui bono?

More commentary here from Thomson Reuters News & Insight Blog.

U.S. Judges and Islam, 1800-1960

Marie A. Failinger, Hamline University School of Law, is publishing Islam in the Mind of American Courts: 1800-1960, in the Boston College Third World Law Journal. Here is the abstract.

This article surveys references to Islam and Muslims in American court opinions from 1800 to 1960. It argues that American judges as a group portray an ambivalent attitude toward Muslims, some treating Islam disparagingly or as an exotic and fanciful religion, and others emphasizing the religious equality that Muslims deserve.
Download the article from SSRN at the link.

The American Temperance Movement and the Rise of Crime

Emily Greene Owens, Cornell University, has published The Birth of the Organized Crime? The American Temperance Movement and Market-Based Violence. Here is the abstract.
Economic theory and anecdotal evidence suggest that the absence of formal contract enforcement increases systemic, or market-based, violence in illegal markets. Lack of substantial variation in market legality has prevented empirical evaluation of the strength of this association. Using a state-level panel of age-specific homicide rates between 1900 and 1940, I demonstrate that criminalization of alcohol markets led to a compression of the age distribution of homicide victims. Specifically, homicide rates for individuals between the ages of 20 and 30 increased relative to homicide rates for individuals under 20 and over 30. The compression of the age distribution of homicide victims was most evident in northern states and in states with large immigrant and urban populations. Using modern homicide data, I show that this age specific change in homicide rates is consistent with an increase in systemic violence, supporting the argument that the temperance movement contributed to the rise of organized crime in the United States. Banning the commercial sale of alcohol appears to have had a protective effect for children and mature adults, but this came at the expense of increasing the rate of violence among young adults.
Download the paper from SSRN at the link.

June 19, 2011

Environmental Politics and Indigenous Peoples

Eve Darian-Smith, University of California, Santa Barbara, has published Environmental Law and Native American Law, at 6 Annual Review of Law and Social Science 359 (2010). Here is the abstract.

This review seeks to engage two bodies of scholarship that have typically been analyzed as discrete areas of inquiry - environmental law and American Indian law. In the twenty-first century, native peoples' involvement in environmental politics is becoming more assertive. In this context it is necessary to think about the impact indigenous involvement may have in shaping future U.S. environmental agendas and regulations. After briefly discussing the rise of environmental movements and environmental law in the United States, I turn to the historical treatment of native peoples and in particular the treatment of their natural resources. This historical backdrop is essential to understanding tribal status today under the Environmental Protection Agency, and the challenges some tribal governments now present to environmental exploitation and degradation by states and corporations. The review concludes by reflecting on the future of U.S. environmental law in the context of increasing pressure being exerted by international environmental law and global indigenous politics.
The full text is not available from SSRN.

June 18, 2011

The South African Constitutional Court Fifteen Years On

D. M. Davis, University of Cape Town, has published South African Constitutional Jurisprudence: The First Fifteen Years at 6 Annual Review of Law and Social Science 285 (2010). Here is the abstract.

South Africa became a constitutional democracy in 1994. This article reviews the first 15 years of constitutional jurisprudence produced by the country's first Constitutional Court. While the court interpreted the Constitution to eradicate racist, sexist, and homophobic legislation and similar common law rules, it did little to promote a comprehensive transformation of the legal system and thus the patterns of distribution that were supported by the law. This is illustrated particularly in the area of social and economic rights. The conclusion is thus reached that the new legal foundations are insufficiently resilient to hold the weight of constitutional expectation.
The full text is not available from SSRN.

Research On Law

Mark C. Suchman, Brown University, and Elizabeth Mertz, University of Wisconsin, Madison, & American Bar Foundation, have published  Toward a New Legal Empiricism: Empirical Legal Studies and New Legal Realism at 6 Annual Review of Law and Social Science 555 (2010). Here is the abstract.

The past decade has seen a return of interest in empirical research within the U.S. legal academy, hearkening back to a similar empirical turn during the ascendancy of Legal Realism in the New Deal era. However, the current revival of legal empiricism has emerged against the backdrop of several well-established traditions of empirical sociolegal research in the interdisciplinary law-and-society movement and in the social science disciplines. This article examines two of the most prominent manifestations of the “new” legal empiricism, empirical legal studies (ELS) and new legal realism (NLR), and it situates them within the preexisting sociolegal terrain. The analysis concludes by considering possible futures for empirical research on law.
The full text is not available from SSRN.

June 17, 2011

The "Gatehouses and Mansions" After Fifty Years

Richard A. Leo, University of San Francisco School of Law, and Alexa Koenig, University of California, Berkeley, School of Law, and University of San Francisco, have published The Gatehouses and Mansions: Fifty Years Later at 6 Annual Review of Law and Social Science 323 (2010). Here is the abstract.

In 1965, Yale Kamisar authored “Equal Justice in the Gatehouses and Mansions of American Criminal Procedure,” an article that came to have an enormous impact on the development of criminal procedure and American norms of criminal justice. Today, that article is a seminal work of scholarship, hailed for “playing a significant part in producing some of the [Warren] Court's most important criminal-procedure decisions” ( White 2003–2004 ), including Miranda v. Arizona. The most influential concept Kamisar promoted may have been his recognition of a gap that loomed between the Constitutional rights actualized in mansions (courts) versus gatehouses (police stations). Kamisar passionately detailed how the Constitution and its jurisprudential progeny failed to protect suspects when those rights mattered most: when facing questioning by police. This article discusses where this thesis stands today in light of nearly 50years of legal developments and social science research.
The full text is not available from SSRN.

Law, Gender, and Crime

Malcolm M. Feeley, University of California, Berkeley, School of Law, and Hadar Aviram, University of California, Hastings College of the Law, have published Social Historical Studies of Women, Crime, and Courts at 6 Annual Review of Law and Social Science 151 (2010). Here is the abstract.

While traditional criminology has ignored the historical dimension of female crime, social historical literature has examined the interplay between gender and the criminal process in a variety of historical settings. This review examines studies focusing on changes in crime, prosecution, conviction, and punishment patterns over time, as well as studies in particular settings. From these studies we conclude that crime has not always been a predominantly male phenomenon and that female crime rates have changed over time. We also conclude that, within the different categories, women defendants in particular were perceived through a gendered perspective, and their criminalization and punishment, as well as its representation in popular culture, reflected this special perspective.
The full text is not available from SSRN.

The Law of the Wild

New Mexico State University President Barbara Couture posted this video encounter between her felines Petey and Ricky and a beautiful (but of course wild and anonymous) bobcat, who visited her back yard recently. I dub him or her Robin. Dr. Couture narrates the visit, but even without the voiceover, I understand the indoor kitties's bemusement at the outdoor kitty's lack of comprehension of the law of trespass. When are their humans going to do something?

[Via the Chronicle of Higher Education's Tweed].

June 16, 2011

Call For Papers: InterTexst Conference On Interdisciplinarity

From Kaja Marczewska
CFP: We are soliciting papers on any aspect of law and humanities/law and literature for the InterTexst conference on interdisciplinarity to be held at Durham University, Durham, UK on 23rd September 2011.

Please send 250-300 word abstracts proposing 20 minute papers by 30th June

2011 to kaja.marczewska@durham.ac.uk

More information about the conference can be found here:


Locke and the Bible

Ross J. Corbett, Northern Illinois University, has published Locke's Biblical Critique. Here is the abstract.

This paper seeks to clarify the relationship between Locke’s political and religious thought. To the extent that Locke’s political thought is an outgrowth of a particular strand of Christianity, its claims to universality would be significantly diminished. This would be the case, however, only if Locke were genuinely religious. Plausible accounts of his religiosity have been offered by Dunn, Waldron, et al, but such accounts become implausible given the presence of a biblical critique within the Two Treatises. The evidence for a critique of the Bible on moral grounds pointed to by Strauss, Pangle, et al is ambiguous, however, and so fails to refute the pious-Locke hypothesis. This paper argues that close attention to Locke’s analysis of the Hebrew text of Gen. 1:28 unambiguously points to a critique of the Bible on textual grounds. This serves to set the moral critique upon firmer foundations, to imply that the moral critique really is present in the text, and to reestablish the universalist claims of Locke’s political thought.
Download the paper from SSRN at the link.

Economic Thought and Justice

Matthias Lennig has published The Concept of Justice in the History of Economic Thought. Here is the abstract.

Economic thought has shifted its focus from an essentially normative approach, dealing with the question of justice, to an emphasis on efficiency and equilibria. This paper traces the changing perception of the issue of justice in the history of economic thought. Today, many heterodox economists maintain this long tradition of thinking about justice. In mainstream theory, i. e. neoclassical theory, however, justice is not regarded as being part of its research agenda. Consequently, economics is widely defined and perceived as the science of efficiency, and contemplation on the concept of justice is outsourced into neighbouring disciplines such as political science, law, sociology and philosophy in particular. Furthermore, it becomes apparent that ideas of justice are never creations ex nihilo, but develop from the entirety of traditional thought on that matter. Thought about justice is always context specific and ideas change due to new circumstances. It follows that contemplation on justice can never become superfluous and as the rich tradition of thought about justice in the history of economic thought shows, economists have much to contribute to this endeavour.
Download the paper from SSRN at the link.

June 15, 2011

"From Hell's Dark Heart, I Stab At Thee!"

The Supreme Court of Texas has stabbed fatally at a tort reform provision intended to insulate a company from liability from its predecessor's action, and in finding that provision unconstitutional, one of the Court's Justices finds inspiration in Star Trek, among other worthy authorities (including Thomas Hobbes). Justice Willett writes in part,

Today's case is not merely about whether chapter 149 singled out Barbara Robinson and unconstitutionally snuffed out her pending action against a lone corporation. Distilled down, it is also a case about how Texans govern themselves. Delimiting the outer edge of police-power constitutionality has bedeviled Texas courts for over a century. The broader issue of a citizen's relationship with the State has confounded for centuries longer.
 From 1651: "For in a way beset with those that contend on one side for too great Liberty, and on the other side for too much Authority, 'tis hard to passe between the points of both unwounded."
From 1851: "It is much easier to perceive and realize the existence and sources of [the police power] than to mark its boundaries, or prescribe limits to its exercise."
From 1907: The question whether a law can stand as a valid exercise of the police power "may be involved in mists as to what police power means, or where its boundaries may terminate. It has been said that police power is limited to enactments having reference to the comfort, safety, or the welfare of society, and usually it applies to the exigencies involving the public health, safety, or morals."
Gauzy definitions such as these -- and laments over such imprecision -- offer scant comfort in this enterprise. The issue is elemental, but not elementary. Fortunately, we are not entirely without guidance.

Appropriately weighty principles guide our course. First, we recognize that police power draws from the credo that "the needs of the many outweigh the needs of the few." Second, while this maxim rings utilitarian and Dickensian (not to mention Vulcan),(fn. 21) it is cabined by something contrarian and Texan: distrust of intrusive government and a belief that police power is justified only by urgency, not expediency.

NB: The text of Footnote 21 is

See STAR TREK II: THE WRATH OF KHAN (Paramount Pictures 1982). The film references several works of classic literature, none more prominently than A Tale of Two Cities. Spock gives Admiral Kirk an antique copy as a birthday present, and the film itself is bookended with the book's opening and closing passages. Most memorable, of course, is Spock's famous line from his moment of sacrifice: "Don't grieve, Admiral. It is logical. The needs of the many outweigh . . ." to which Kirk replies, "the needs of the few."
Other footnotes omitted.

The case is Robinson v. Crown Cork & Seal Co., 335 S.W.3d 126 (2010), 161-163. It has already gotten attention from the SFWA Blog and Techdirt, back in October when the Court decided the case, and from Constitutional Law Prof Blog in April when the Court formally released the opinion. Says Techdirt, "And so, Spock is now a legal authority on the Texas Constitution. Very logical." Well, not exactly. But interesting.

The Role of Legislators

Dan Svantesson, Bond University School of Law, has published What is ‘Law’, If ‘The Law’ is Not Something that ‘Is’? A Modest Contribution to a Major Question. Here is the abstract.

Having proposed an alternative definition of what “law” (as a jurisprudential concept) is, this article seeks to demonstrate the impossibility of identifying “the law” (as in what law-makers announce, relative to a particular jurisdiction) as something that is in a particular way. Rather, the law is always a more or less abstract range of options.

Thus, law-makers, such as legislators and judges, do not express the law, but something less than the law – something limited by biases.

Drawing upon this conclusion, the article calls for a reassessment of how we view the role of law-makers. We need to remove the mystery that surrounds the law. Doing so will make clear that law-makers must be open about their unavoidable biases – we need greater transparency. The article concludes that this transparency can only be gained by requiring law-makers to declare their inescapable biases where they impact on their lawmaking.
Download the paper from SSRN at the link.

Deciphering Logic in Law

Maria Francisca Carneiro, Federal University of Paraná, has published Notes on a Way of Thinking in Paraconsistent Logic in Law. Here is the abstract.

This works deals with the evolution of a way of thinking in paraconsistent logic in Juridical Sciences, as a result of studying. It focuses on different types of paraconsistent logic that can be applied to Juridic questions, aiming especially at solving the contradictions frequently found in law.
Download the paper from SSRN at the link.

The Development of Constitutions

Kaarlo Heikki Tuori, University of Helsinki Faculty of Law, Centre of Excellence in Foundations of European Law and Polity, has published The Economic Constitution Among European Constitutions as Helsinki Legal Studies Research Paper No. 6. Here is the abstract.

The paper starts from the (hypo)thesis, that European constitutionalism should be examined as a diversified process where each stage receives its particular colouring from a particular constitution (or constitutional dimension). Reflecting the temporal and functional primacy of economic integration, the first wave proceeded under the auspices of economic constitution; in the second phase, the emphasis shifted to juridical constitution; during the third wave, the focus was transferred to political constitution; and finally, in our contemporary age, since, say, the Treaty of Amsterdam the pacemaker role appears to have been taken over by security constitution. Such a temporal succession should not be interpreted in the sense of an emerging constitutional aspect replacing or supplanting the previous one; rather, the constitutional dimensions complement each other. Thus, the latent and manifest development of economic constitution has not stopped, and the economic constitution retained its functional primacy. Constructing a common (internal) market has been the motor of the whole integration process and, correspondingly, the non-economic constitutional dimensions have largely developed as a response to demands raised or consequences set off by the economic one. Here we can talk of relations of implication. Finally, relations between aspects of constitution can also be of a conflictual nature. Thus, the normative implications of economic constitution may clash with those of, say, political or social constitution. Before the European Court of Justice, such conflicts often assume the guise of contests between different types of rights: between, on the one hand, rights related to market freedoms and, on the other hand, civil and political or social rights.
Download the paper from SSRN at the link.

The Faculty Workshop As System and Symptom

Pierre Schlag, University of Colorado Law School, has published The Faculty Workshop as University of Colorado Law Legal Studies Research Paper No. 11-12. Here is the abstract.

This essay explores the ubiquitous law school institution, “The Faculty Workshop,” as an entrée into and manifestation of contemporary American legal thought. The Faculty Workshop is examined both as a regulator and expression of legal thought - at once governance system and symptom. We close by discussing “Stage 4.”
Download the paper from SSRN at the link.

June 14, 2011

Our Legislators' Education

The Chronicle of Higher Education reports on the state of higher education among state and federal legislators. It notes that "Depending on how 'most educated' is defined, it could be argued that Virginia tops the nation, on the basis of its high percentage of lawmakers with both bachelor's and advanced degrees. The state ranks second-highest in both categories, right behind California for legislators with four-year degrees and on the heels of New Jersey for advanced degrees, with 89 percent and 58 percent, respectively." A number of members in many state houses swear allegiance to one alma mater, which might matter in terms of funding. Members of Congress are more diverse--nearly all have college degrees, and many go out of state to get their degrees (many to private schools). More than half of our Senators are attorneys. More here. And here's a map with stats. Commentary and analysis here.

Evaluating Legal Dictionaries

Dennis Kim-Prieto, State University of New Jersey (Rutgers), School of Law (Newark), and Conrad Van Laer, University of Maastricht, have published The Possible Dream: Perfecting Bilingual Law Dictionaries by Distinguishing Better Examples from Bad. Here is the abstract.

As the practice of law crosses national (and linguistic) borders with increasing frequency, the need for tools that facilitate the transnational practice of law becomes more acute. Bilingual legal dictionaries (BLDs) are one critical such tool, as they offer access to legal systems as well as the languages of these systems. Unfortunately, librarians have offered scant criticism of BLDs, many of which are not particularly useful. This article summarizes critical problems with BLDs and offers an approach to resolving these problems by focusing upon the quality of the entries, or definitions, that BLDs provide.
Download the paper from SSRN at the link.

How New Legal Terms Are Formed

Isabel A. Walbaum Robinson, University of Rome III, has published The 'Word Factory': A Study of the Processes Engaged in the Formation of Legal Terms in volume 1 of Opinio Juris in Comparatione (2011). Here is the abstract.

This paper explores the language of the law from the point of view of the factors that contribute to the building of its specialized lexicon and the options language offers to create, institutionalize and incorporate new words into the technical legal inventory. Sources of word-formation responsible for specialized lexicon accretion in the corpus are of two kinds: language-based and discipline-based. The former involves structure (syntax), meaning (semantics), and uses (pragmatics) of language and the processes engaged in word formation, such as compounding, trans-categorization, fusion, clipping, the creation of binomials and multi-word lexical units (henceforth, MLUs). The latter involves the creation of words engendered from within the discipline itself, such as landmark cases and professional contributions.

As a language user, the legal professional is faced with two types of cognitive processing. On one hand, ‘decoding’ text meaning when carrying out language-related activities such as reading documents or listening to speech. On the other, ‘encoding’ language for the purpose of writing (e.g. briefs, opinions, articles) or interacting with a colleague, taking part in a debate or discussing a point of law. Awareness of both lexical and syntactic features of a language for specific purposes (henceforth, LSP), as well as its word-forming processes, provides the legal professional a vantage for interpreting, comparing and using the ‘tools of the trade’, legal terms. Word-formation is an important sector of linguistics that reflects back on the nature and characteristics of language itself. It gives an ‘added dimension’ to lawyers, in particular English as a Foreign Language (EFL) comparative lawyers, who fulfil professional obligations that call for the technical, rather than intuitive use of language.

Download the article from SSRN at the link.

June 11, 2011

Feminism, Liberalism, and Radicalism

Robin L. West, Georgetown University Law Center, has published The Difference in Women’s Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory at 15 Wisconsin Women's Law Journal 149 (2000). Here is the abstract.

Part One of this article provides a phenomenological and hedonic critique of the conception of the human – and thus the female – that underlies liberal legal feminism. Part Two presents a phenomenological critique of the conception of the human – and thus the female – which underlies radical feminist legal criticism. Again, I will argue that in both cases the theory does not pay enough attention to feminism: liberal feminist legal theory owes more to liberalism than to feminism and radical feminist legal theory owes more to radicalism than it does to feminism. Both models accept a depiction of human nature which is simply untrue of women. Thus, both accept, uncritically, a claimed correlation between objective condition and subjective reality, which, I will argue, is untrue to women. As a result, both groups fail to address the distinctive quality of women's subjective, hedonic lives, and the theories they have generated therefore have the potential to backfire – badly – against women's true interests. In the concluding section I will suggest an alternative normative model for feminist legal criticism which aims neither for choice nor equality, but directly for women's happiness, and a feminist legal theory which has as its critical focus the felt experience of women's subjective, hedonic lives. My substantive claim is that women's happiness or pleasure – as opposed to women's freedom or equality – should be the ideal toward which feminist legal criticism and reform should be pressed, and that women's misery, suffering and pain – as opposed to women's oppression or subordination – is the evil we should resist. I will argue that feminist legal theorists, in short, have paid too much attention to the ideals of equality and autonomy and not enough attention to the hedonistic ideals of happiness and pleasure, and that correlatively we have paid too much attention to the evils of subordination and oppression, and not enough attention to the hedonistic evils of suffering and pain. My methodological assumption is that the key to moral decision-making lies in our capacity to empathize with the pain of others, and thereby resist the source of it, and not in our capacity for abstraction, generalization, or reason. My strategic claim is directly entailed: the major obstacle to achieving the empathic understanding which is the key to significant moral commitment, including the commitment of the legal system to address the causes of women's suffering, is the striking difference between women's and men's internal lives, and more specifically, the different quality of our joys and sorrows. This obstacle can only be overcome through rich description of our internal hedonic lives.
Download the article from SSRN at the link.

June 9, 2011

James Madison's Legal Writing

Thomas Berg, Julie A. Oseid, and Joseph A. Orrino, all of the University of St. Thomas, St. Paul/Minneapolis School of Law, have published  The Power of Rigor: James Madison as a Persuasive Writer as University of St. Thomas Legal Studies Research Paper No. 11-16.

This article is the third in a planned series of articles about the writing qualities and habits of our most eloquent American Presidents. The focus of all the articles is on the lessons modern legal writers can learn from the Presidents. James Madison’s rigor, in both his approach to problems and in his resulting written work, was famous; it was this rigor that contributed to the persuasiveness of his writing. Even though he was not a lawyer, Madison had all the best writing habits that lawyers should emulate – attention to audience, careful preparation, and attention to consequences.
Download the paper from SSRN at the link.

Madison’s rigor, in both his approach to problems and in his resulting written work, was famous; it was this rigor that contributed to the persuasiveness of his writing. “The great little Madison” may have lacked physical presence and personal charisma, but he overcame those limitations to become one of the most influential public figures in American history by cultivating his particular strengths. He had an analytical mind that he developed to see and clearly express arguments, counterarguments, and distinctions. He had, despite poor health, an appetite for work that he used to out-prepare others. And he had a sensitivity to surrounding circumstances that he cultivated to address his audience’s concerns and to envision the practical consequences of various actions.

The article considers why rigor is an essential writing quality, reviews Madison’s life and writing habits, and analyzes three examples of Madison’s writings (The Memorial and Remonstrance, Federalist No. 10, and a letter from Madison to Thomas Jefferson).

Go Read About West, Young Person

Ross E. Davies, George Mason University School of Law, has published West’s Words, Ho! Law Books by the Million, Plus a Few at 14 The Green Bag 2d 301 (Spring 2011). Here is the abstract.

This essay introduces an interesting but nearly invisible artifact of American law: A promotional pamphlet titled Law Books by the Million: An account of the largest law-book house in the world, the home establishment of The National Reporter System and The American Digest System. It was produced by the West Publishing Company in 1901 and is reprinted in its entirety below at pages 311 to 339 of this issue of the Green Bag. Professor Robert Jarvis has quite rightly bemoaned the meager public information about John West, founder of the West Publishing Company and an important figure in American legal history. A similar, albeit less severe, paucity of information plagues the West Publishing Company itself (now owned by Thomson Reuters). There isn’t much out there about the company’s early years, and what little there is can be strangely difficult to get hold of. For example, the biggest single source of West history – William Marvin’s 1969 book, West Publishing Company: Origin, Growth, Leadership – is out of print, rare, and not available on the Internet. The same goes for The Publications of West Publishing Company and The Romance of Law Reporting: Serving the Bench and Bar, pamphlets published by West in 1901 and 1934 respectively. Law Books by the Million is nearly as hard to find, but at least it is in the library and in the public domain, and therefore susceptible to reproduction here. And it is worth the trouble and expense. Law Books by the Million provides a readable, richly illustrated narrative of the processes West used to create and disseminate its products in the early years (that is, the late 19th and early 20th centuries) of those simultaneously democratizing and costly, mutually reinforcing revolutions in American law: the expansion of the bar and the legal information explosion.
Download the essay from SSRN at the link.

June 8, 2011

Lying in "The Heart of Midlothian"

Julia Ann Simon-Kerr, University of Chicago Law School & Yale University Law School, has published Pious Perjury in Scott's The Heart of Midlothian, in Gender, Law and the British Novel (Alison LaCrois & Martha Nussbaum eds., Oxford University Press, 2011). Here is the abstract.

Lying in court was a practice routinely used in the eighteenth century justice system to mitigate the severity of its criminal laws. Dubbed “pious perjury” by Blackstone, witnesses and juries often violated their oaths in order to avoid imposition of the death penalty. The practice was so common that it formed a central piece of the argument for law reform during the period when Scott was writing The Heart of Midlothian. Reformers argued that the laws were being grossly under-enforced because so many juries were mitigating sentences or freeing defendants through pious perjury. True to this practice, the men surrounding Scott’s heroine, Jeanie Deans urge her to perjure herself to save her sister, who has been wrongly accused of infanticide. Her sister, Effie, will be acquitted if Jeanie swears that Effie told her of her pregnancy. Jeanie’s refusal to lie forms the dramatic core of the novel. By creating a heroine whose major strength is her truthfulness in a public realm, Scott intervenes both in the novelistic tradition of female heroism and in the contemporary discourse on law reform.
Download the abstract from SSRN at the link.

The Killers Among Us

Theodore Dalrymple writes for City Journal about Stephen Griffiths, the self-described "Crossbow Cannibal," whose dissertation at the University of Bradford focused on homicide studies, and who apparently did empirical research for it by killing and eating women. Mr. Griffiths was sentenced to life in prison after pleading guilty to three murders in 2010. More here from the Guardian.

Lord Byron In Court

Leslie Katz has published Lord Byron, Copyright and the Demons of the Law. Here is the abstract.

On six separate occasions between 1816 and 1823, legal proceedings were begun or, at least, contemplated for the purpose of stopping the sale of an unauthorized edition of a published work that had been written by Byron. The paper discusses those six occasions.

On a further five occasions between 1816 and 1824, legal proceedings were begun that involved Byron’s literary output (or claimed literary output) in some other way. The paper discusses those five occasions too.
The paper includes four satirical prints showing respectively Byron, John Cam Hobhouse, Lord Chancellor Eldon and William Benbow, which prints were created by leading printmakers of the day.

Download the paper from SSRN at the link.

The Development of Nineteenth Century Legal Thought

Simon Stern, University of Toronto Faculty of Law, has published The Analytical Turn in Nineteenth-Century Legal Thought. Here is the abstract.

This essay seeks to account for the introduction of the analytical method into Anglo-American legal thinking in the 19th century and to identify some of the doctrinal consequences of this mode of problem-solving. I focus on a particular sense of analysis – the disaggregation into components of seemingly unified entities, not previously seen as composites. On this view, a discussion of U.S. law as involving federal law and state law does not involve analysis, but a discussion of privacy as including decisional and spatial aspects would involve analysis. The term "analysis" long predates the nineteenth century, but had previously been used by lawyers to mean "investigation" or "classification" rather than disaggregation. Drawing on research by John Pickstone, I show that the technique, though not unheard of before the 19th century, was taken up in a wide array of scientific disciplines circa 1780-1840, particularly in chemistry. This helps to explain its diffusion into other intellectual spheres, including law.

The nineteenth-century analytical revolution had a profound effect on the Anglo-American legal system, its doctrines, and its approach to problem-solving, to such an extent that modern lawyers’ views about their professional competences, and their beliefs about what constitutes a persuasive legal argument, would be radically different without this feature. The analytical approach is evident in contemporary thinking about statutory drafting and interpretation, constitutional law, and administrative law, as well as the common law. Because it is beyond the scope of a single essay to delineate these effects fully, I focus here on the changes associated with the introduction of elements into nineteenth-century jurisprudence, in a pattern that reveals some of the most visible results of the analytical approach.

Part I discusses the rise of analysis in science and the law around the beginning of the nineteenth century. Part II shows how issue preclusion (in res judicata) was reconceived in the course of the nineteenth century, morphing from a doctrine focused on the relitigation of particular facts, to a doctrine concerned with legal issues, now understood as involving legal conclusions based on facts. Part III addresses the reconceptualization of criminal offenses as consisting of "elements," a development that led to new ways of thinking about burdens of proof and the role of mens rea in criminal liability. A concluding section reflects briefly on the implications of this approach to legal science. The argument shows that legal science may be profitably studied not only by looking at the statements of lawyers such as David Hoffman, Simon Greenleaf, and George Sharswood, who took pains to insist that they were being scientific, but also by looking to particular instances in which lawyers adopt scientific methods, even if they do not call attention to this practice, and even if they make no claims about legal science.
Download the essay from SSRN at the link.

June 6, 2011

Summer Reading: The Academic Novel

Ms. Mentor (the alter ego of Emily Toth, Professor of English at Louisiana State University), gives sage advice on academic novels for summer reading here in a Chronicle of Higher Education column, and offers the chance to vote early and often on the best title listed. If you want more suggestions on higher reading, check here. Here's another list, compiled by Bill Brewer. Search Google with the phrase "academic novel" and you'll discover that making lists of academic novels is a pasttime all by itself. For more about the academic novel, and in case you want to understand the MEANING of it all, check out  The Academic Novel: New and Classic Essays (Merritt Moseley, ed., 2007), Mark Bosco and Kimberly Conner, Academic Novels as Satire  (2007), Ian Carter's Ancient Cultures of Conceit: British University Fiction in the Post-War Years (Routledge, Chapman & Hall, 1990), Elaine Showalter's Faculty Towers: The Academic Novel and Its Discontents (2005), and Kenneth Womack's Academic Satire: The Campus Novel in Context in A Companion to the British and Irish Novel 1945-2000 (Blackwell Publishing, 2005).

Some of my favorites (I have a bias toward academic mysteries):

Malcolm Bradbury, Eating People Is Wrong (1959).
Amanda Cross, An Imperfect Spy (1995).
Colin Dexter, Death Is Now My Neighbor (1996).  Oxford is the setting for a lot of films and books.
Michael G. Levin, The Socratic Method (1987).
Guillermo Martinez, The Oxford Murders (2005).
Dorothy L. Sayers, Gaudy Night (1935).
Pamela Thomas-Graham, A Darker Shade of Crimson (1998).

Legal Interpretation In the New Century

Yishai Blank, Tel Aviv University Buchmann Faculty of Law, has published The Reenchantment of Law at 96 Cornell Law Review 633 (2011). Here is the abstract.

The religious revival observed throughout the world since the 1980s is making its mark on legal theory, threatening to shift the jurisprudential battleground from debates over law’s indeterminacy and power to conflicts over law’s grounds, meaning, unity, coherence, and metaphysical underpinnings. Following the immense impact of the legal-realist movement on American jurisprudence, the major jurisprudential conflicts in the United States throughout the twentieth century revolved around the themes of the indeterminacy and power inherent in adjudication (and the resulting delegitimization of it), pitting theories that emphasized these critical themes against schools of thought that tried to reconstruct and reconstitute the determinacy and legitimacy of adjudication. Over the past couple of decades, however, a new jurisprudential dividing line has emerged without attracting much notice or attention. This new divide, which I draw in this Essay, is between thinkers who adhere to a disenchanted, instrumentalist, and secularized view of the law and theoreticians who try to reenchant it by reintroducing a degree of magic, sacredness, and mystery into the law; by reconnecting it to a transcendental or even divine sphere; by finding unity and coherence in the entirety of the legal field; and by bringing metaphysics “back” into the study of law.

Thus a new stage in the evolution of modern legal theory is emerging in which formal legal rationality is no longer the high point of legal disenchantment (as Max Weber saw it) but a model for law’s reenchantment as against the almost universally accepted disenchanting legal theories. And although the question of legal interpretation - and the possibility of objective and legitimate adjudication - is still motivating some of these theories, the reenchanting theories aim to shift the jurisprudential debates from questions of the consequences of legal principles and rules to fundamental questions concerning the grounds of law. This ground shifting might invoke new jurisprudential conflicts between secularism and religiosity, between pragmatism and metaphysics, and between critical and magical thinking. In order to evaluate and demonstrate my claim I analyze four exemplary (though not exhaustive) modes of legal reenchantment that have emerged over the last thirty years: the reenchantment of legal formalism, the reenchantment of virtue, the reenchantment of law as art, and the reenchantment of legal authorities.
Download the article from SSRN at the link.

Civilian Uprisings and Foreign Invasions

Emily Crawford, University of Sydney Faculty of Law, has published Levée En Masse – A Nineteenth Century Concept in a Twenty-First Century World, as Sydney Law School Research Paper No. 11/31. Here is the abstract.

Levée en masse – the spontaneous uprising of the civilian population against an invading force – has long been a part of the modern law of armed conflict with regards to determining who may legitimately participate in armed conflict. The concept originated during the French Revolution, and was internationalized with its inclusion in the rules of armed conflict adopted by the Union Army during the American Civil War. Levée en masse continued to be included in the major international law of armed conflict documents from that time on, including The Hague Regulations of 1907 and the Geneva Conventions of 1949. However, since that time, there have been few, if any, instances of levée en masse. This article examines the historical and legal development of the concept of levée en masse, charting its evolution from a general and sustained call to arms to the civilian population to the more strict 19th and 20th century legal categorization of civilians attempting to fend off an invading force. This article also examines the few instances of levee en masse in State practice, and, in doing so, assesses whether the concept retains any utility in 21st century armed conflict.
Download the paper from SSRN at the link.

June 5, 2011

Popular Crimes

Bryan Burroughs offers up a review of Bill James' Popular Crime: Reflections On the Celebration of Violence (Simon and Schuster) in the June 5th New York Times Book Review. Mr. James is better known as a sports writer (Solid Fool's Gold: Detours On the Way To Conventional Wisdom (Acta Publications, 2011)), but has always like true crime books, and notes that he doesn't think there are any books about them. So he has written one. In particular he is interested in why we are interested in true crime, and in reading and writing about it.

Crime stories are very often the basis on which new laws are proposed and old ones modified. We have Megan's Law and Sarah's Law and Jeremy's Law and Amber Alerts. This has been true for many years. In the 18th century several new laws sprung from the story of Elizabeth Canning. In the 1930s we had the Lindbergh Laws and the Little Lindbergh Laws. A great deal of our law and of our criminal procedure has always been shaped and re-shaped by these very famous crimes that the best people refuse to discuss.

Of course there is a national discussion about those types of issues—among the lawyers. When the rest of us try to comment, we are reminded firmly that we are not lawyers and therefore don't know what we're talking about. No one writes about these issues. Name a book by a non-lawyer, published in the last ten years for the general public, which attempts to discuss these issues in a serious way. On truTV, whenever a guest tries to comment on some irrational wrinkle of judicial procedure, some self-important lawyer immediately steps forward to "explain" why the system has to work this way, why the system of justice would collapse if a juror were allowed to read a news report about the case or a cop was allowed to mention his prior run-ins with the defendant.

It is not my intention to bash lawyers. It is my belief that the lay public—non-lawyers—should participate actively in the discussion of crime and justice. It is my notion that popular crime stories could be and should be a passageway that the lay public uses to enter into that discussion.

I said that no one writes about these issues, which is not literally true. I am sure that in some corner of the academic world there hides an intellectual who knows vastly more about these issues than I do and has written 208 published articles about them, which none of us have ever heard of, probably because he writes like a troll, or, not to be sexist, she writes like a troll or trollette. I am not here to bash intellectuals, either; I'm just a sarcastic bastard by nature.

This book is about three things. First, it is about famous crimes, and in particular about famous crimes which have happened in the United States since about 1880. Second, it is about crime, in a general way, about the kinds of issues I have tried to introduce here.

And third, it is about crime books. I am not a lawyer or an academic, nor even a cop or a court groupie. My understanding of these issues is based on what I have read, which includes a thousand or more crime books. There is, to the best of my knowledge, no book about crime books.

Hmmm. Mr. James is probably correct that crimes spur legislation. But how does one write like a troll? Read the rest of Chapter 1 here, courtesy of the publisher.