October 31, 2011

Bram Stoker's Journal To Be Published

A "bloody good" (or a "bloody" good) story for Hallowe'en: the discovery of author Bram Stoker's journal on his descendant's Isle of Wight bookshelf. Noel Dobbs didn't know what he had until someone doing research contacted him to ask if he might have some information about Stoker's journal. Mr. Dobbs checked, and found the slim volume. Another relative, great-grand nephew Dacre Stoker, who resurrected a Bram Stoker novel called Dracula: The Un-Dead (due out next year) will also help publish the journal. The Lost Journal will also appear next year, the 100th anniversary of the death of Dracula's author.

October 28, 2011

Indigenous Peoples and the Protection of Intellectual Property: The Case of the Zia

Stephanie B. Turner, Yale Law School, is publishing The Case of the Zia: Moving Beyond Intellectual Property Laws To Protect Cultural Rights, in the Chicago-Kent Journal of Intellectual Property. Here is the abstract.
This Article focuses on an ongoing dispute in trademark law: the case of the Zia. Located near Albuquerque, New Mexico, this Native American pueblo has been using its sacred sun symbol in religious ceremonies since 1200 C.E. The symbol now appears on the New Mexico State flag, letterhead, and license plate, and on commercial products ranging from chemical fertilizers to portable toilets. The tribe claims that the State appropriated the symbol without permission in 1925, and that the continued use of the symbol by various parties dilutes its sacred meaning and disparages the tribe in violation of Section 2(a) of the Trademark Act. This Article tells the Zia story, focusing on the harms the tribe faces when others appropriate its symbol and the possible solutions. It concludes by suggesting that indigenous groups like the Zia should move beyond intellectual property laws in the fight to protect their cultural rights.

Download the article from SSRN at the link.

Law, Narrative, and Health Care

Kenneth D. Chestek, Indiana University School of Law (Indianapolis) has published Competing Stories: A Case Study of the Role of Narrative Reasoning in Judicial Decisions. Here is the abstract.

Within minutes after President Obama signed into law the Patient Protection and Affordable Care Act (derisively referred to by some as the “Obamacare” law), the lawsuits started flying. Literally dozens of suits were filed all across the country. Some were frivolous, but many others raised serious issues of federalism and the reach of Congress’ power under the Commerce Clause.

Of the initial spate of lawsuits, ultimately five were decided by various trial courts on the merits of the Commerce Clause issue. Three judges found the law constitutional, and two others found it unconstitutional. But since the issue is almost purely a question of law (it is the same Commerce Clause and the same body of Supreme Court precedent interpreting it in all five cases), the question arises: why did these cases come out differently?

The mainstream media has seized upon a political explanation: the three judges who found the law constitutional were appointed by Democratic Presidents, while the two judges who found the law unconstitutional were appointed by Republican Presidents. This article challenges that assumption, and suggests a more nuanced explanation: each of the plaintiffs in these cases had different stories to tell. The article explores narrative reasoning (defined as norm-based thinking instead of pure rule-based reasoning) as a possible explanation for the divergent results in these cases.

Download the paper from SSRN at the link.

October 27, 2011

Legal Theory and Judge-Made Law In England

Michael Lobban has published Legal Theory and Judge-Made Law in England, 1850-1920 as Queen Mary School of Law Legal Studies Research Paper No. 91/2011. Here is the abstract.

Many nineteenth century jurists agreed that John Austin’s separation of the spheres of law and morality lay the foundations for a scientific analysis of law. However, they remained uneasy with his definition of law as the command of a sovereign, preferring to speak of rules enforced by the state. The jurists who succeeded Austin strove to analyze law in terms of rules enforced by the state, and used Austin’s tools to put order to the mass of common law materials. However, when it came to discussing how judges should develop the law, they continued to defend the interpretive approach distinctive of the common law tradition. Rather than identifying rules, this entailed applying principles found in older case law to new situations and thereby adapting the law to the changing needs of the community. Consequently, jurists who found Austin’s strict separation of law and morality a useful tool for analysis continued to feel that the interpretative work done by the judges needed to take into account the moral needs of the community, and numerous jurists argued explicitly for a connection between law and morality.

In the debates over codification of the 1860s, many judges and jurists who admired the analytical method which allowed them to make sense of a mass of legal materials resisted the aspiration to put all common law into rules. They explicitly defended the common law as a system of principles. In their view, the problems caused by the proliferation of case law resulted from judges looking to find a rule from every reported case, rather than looking to principles. They therefore argued that efforts should be made to digest the principles of the common law, which would allow the law to continue to develop flexibly by reasoning at case level. In response, a number of analytical jurists argued that if the common law could be seen to generate series of authoritative propositions, they could be codified into rules. For them, a digest was a mere preparatory to a code, where judges would apply and not make law. They specifically linked the analytical project, premised on the separation of law and morality, with the codification project. However, by the 1870s, jurists like J.F. Stephen began to separate the codification project from the analytical one. Instead of needing to find an ideal analytical model, Stephen argued, different areas of law could be codified for convenience. By the end of the century, those who argued for codification no longer felt that it would curtail the role of the judge in developing the law in an interpretive way. 

The article ends by briefly looking at three jurists who accepted Austin’s analytical models, while rejecting (in various degrees) his arguments on the separation of law and morals. William Markby, John Salmond and W. Jethro Brown all argued that legal and moral norms were related, if distinct, and that judges were to look to moral sources, including the moral needs of the community, on developing the law.

Looking Back at "Buck v. Bell"

Edward Larson, Pepperdine University School of Law, has published Putting Buck v. Bell in Scientific and Historical Context in volume 39 of the Pepperdine Law Review (2011). Here is the abstract.

In this article written for a law-review symposium in response to a presentation on the infamous 1927 U.S. Supreme Court opinion in Buck v. Bell, Edward J. Larson argues that, at the time that the case was decided, eugenics was on the incline, not the decline. In the 1920s, the American scientific and medical community broadly backed eugenic remedies for various forms of mental illness and retardation. Legislatures, lawyers, and jurists took their cue from this scientific and medical consensus. Absent any question that the statute at issue in Buck v. Bell was validly passed by the Virginia legislature or that due process was provided for the persons subject to its reach, the law should have withstood constitutional challenge. The tragedy of Buck v. Bell, Larson argues, was that Carrie Buck never received the due process guaranteed under Virginia’s eugenic sterilization statute and that neither her lawyers nor the courts protected her from a flagrant violation of her basic constitutional and statutory rights. Under the fact that should have been brought out at trial, Carrie Buck would not have been sterilized. More fundamentally, had due process been provided in this and other instances, while eugenics would still have been a scientific and medical mistake, it would not be a legal one.

Download the article from SSRN at the link.

Shakespeare and War Crimes Trials

Will Fitzgibbon, Australian National University College of Law, has published Visions of Justice: Shakespeare and Duch’s Proposed ‘Return to Humanity’. Here is the abstract.

Completed in the first half of 2010, this thesis received a First Class and was supervised by Professor Margaret Thornton. This article provides an analysis of the story and the trial of the Khmer Rouge official, Kaing Geuk Eav, alias Duch, in the Extraordinary Chambers in the Courts of Cambodia (ECCC) through a Shakespearean lens – particularly drawing upon three plays; The Winter’s Tale, Coriolanus, and Richard III. Duch’s Defence Counsel Mr Francois Roux contended that the real question of Duch’s trial was whether ‘the hearings would allow one who has exited from humanity to return to humanity’. Using Shakespearean exempla, the essay examines the persuasiveness of Duch and his Defence team in its effort to have Duch ‘return to humanity’. This article first details Duch’s life and crimes. In what follows, this article analyses through a Shakespearean lens strengths and weaknesses of the Defence’s appeal for Duch’s ‘return to humanity’ in light of his alleged recognition of guilty and expression of remorse.
Download the thesis from SSRN at the link. 

October 25, 2011

William Shakespeare: Genius or Stand-In

Do filmgoers care about a movie's historical accuracy? Does an audience take the plot of a docudrama "based on historical events" literally? The Guardian has asked its readers just this question in the case of the new film Anonymous, which takes the position that someone other than William Shakespeare wrote Shakespeare.

Candidates and alternative theories abound. Did Francis Bacon actually write the plays and poems? Christopher Marlowe? The Earl of Essex? Sir Walter Raleigh? The Earl of Derby? Steven Dutch surveys some of the candidates and theories hereJames Shapiro in his recent book Contested Will discusses the issue at length.  Schools and institutions have sponsored symposia on the subject. Frontline presented a program on the authorship of the plays. Even Justice Stevens offers an opinion.  His pick is the Earl of Oxford.

If you can't decide, you can take a fallback position on the question of who wrote Shakespeare's works. William Shakespeare.


James Shapiro, Contested Will: Who Wrote Shakespeare (Simon and Shuster, 2010).

Symposium: Who Wrote Shakespeare: An Evidentiary Puzzle  72 Tenn. L. Rev 1 (Fall 2004).

October 24, 2011

VARA and Moral Rights

Nathan M. Davis has published As Good As New: Conserving Artwork and the Destruction of Moral Rights  in volume 29 of the Cardozo Arts & Entertainment Law Journal (2011). Here is the abstract.

American legal protections afforded to artists with respect to their own works are so narrowly focused, and the statutory language so loosely defined, that it is not clear whether certain measures to conserve artworks may have the counterintuitive, adverse effects of depriving artists of the protections contemplated in the Visual Artists Rights Act of 1990 (VARA). This Note explores problem areas in the nexus of conserving works of art and VARA jurisprudence, arguing that the statute’s narrow scope confers inconsistent and unpredictable protections over artworks such that the ever-evolving best practices of arts professionals — those who work to conserve artworks or otherwise play a stewardship role for artists’ creations — may indiscriminately jeopardize artists’ rights in their works.
Part I presents an overview of VARA from a practical perspective, contrasting the expansive scope of visual artistic media over the last one hundred years with the restrictive designations of moral rights protections, demonstrating a philosophical gap between the statute and the artworks it was designed to protect. Part II addresses the statute’s case law, which casts a divide between VARA’s application and the practical scenarios that arts professionals encounter in preserving artworks, examining two cases: Flack v. Friends of Queen Catherine and Board of Managers of SoHo International Arts Condominium v. City of New York (Board IV). Lastly, Part III suggests an amendment to VARA in order to effectuate its purpose when applied to common conservation practices and puts forward a set of guidelines for arts professionals to reduce the likelihood that conserving an artwork could jeopardize artist rights in it or otherwise run afoul of VARA’s protections.

Download the article from SSRN at the link.

October 20, 2011

The Writer and the Law

John James Berry, Barry University School of Law, has published The Law, The Writer and The Work: How an Author's Interaction with the Legal System Impacts His Writing. Here is the abstract.

By tracing the lives led by four famous authors and exploring the societies which produced them, this article will show how law affects literature in ways that many readers may not notice. Rather than explore what was expressed by the author, this work will examine the affect the background of the author has on the tone of the works of literature which they produce, the affect the law and their culture's legal system had on their background, and how the characteristics of the cultures and authors reflect the characteristics of the governing legal system. Ultimately, this piece shows that, rather than a society's legal system reflecting its' underlying culture, the power of the law has the ability to shape the culture which it is supposed to serve.

Download the paper from SSRN at the link.

October 17, 2011

Amazing Guys In "Suits"

Copyright In Shakespeare's Works

Jeffrey M. Gaba, Southern Methodist School of Law, has published Copyrighting Shakespeare: Jacob Tonson, Eighteenth Century English Copyright, and the Birth of Shakespeare Scholarship. Here is the abstract.

In 1709, Jacob Tonson, the premier publisher of his age, purchased the “copyright” to Shakespeare. Tonson and his family over the next fifty years went on to publish some of the most significant editions of the collected works of Shakespeare, edited by the likes of Nicholas Rowe, Alexander Pope and Samuel Johnson. In many ways, the Tonsons were responsible for the growth of Shakespeare’s popularity and the critical study of his work. 

This article discusses the significance of copyright to the Tonsons’ publication decisions. It suggests that the Tonson copyright did not significantly “encourage” their contributions to Shakespeare scholarship. First, Jacob Tonson could not have relied on statutory copyright for protection of his seminal 1709 Rowe edition. Tonson, quite simply, did hold the copyrights at that point, and the Statute of Anne had not yet been introduced, let alone passed, by Parliament. Second, the Tonsons’ publication of later editions would not, as some have asserted, have perpetuated any common law or statutory copyright claim Tonson might have to the works of Shakespeare. Third, although the textual notes and comments contributed by his editors may have been copyrighted, most of the significant editorial contributions to Shakespeare scholarship would not themselves have been subject to copyright protection. Selection of plays in the legitimate Shakespeare canon, for example, and selection of the appropriate text from earlier quarto and Folio editions would not have been subject to copyright protection. Fourth, the expansion of public access to cheaper, more widely available editions of the Shakespeare plays arose in spite of, rather than because of, copyright protections. It was a challenge by a book “pirate” that caused the Tonsons, not to seek legal protection through their claimed copyright, but to flood the market with their own cheap editions of the plays. 

Finally, the article suggests a reason why the Tonsons, whose name appears as plaintiff in many of the early copyright cases, never sought to litigate their claim to a copyright in Shakespeare. Simply put, litigating a claim to copyright in Shakespeare would have been a poor “test case” to secure what the Bookseller’s sought at that time – a perpetual common law copyright based on the natural rights of authors. 

This article suggests that copyright issues, although certainly important, were ancillary to the Tonsons’ publication decisions. Market forces, the protections from competition afforded by a Bookseller cartel, and a respect for Shakespeare’s works, more than copyright protections, appeared to drive the Tonsons’ actions and therefore the growth of Shakespeare scholarship.
Download the paper from SSRN at the link. 

October 14, 2011

Fielding a Story: Tracking Down an Anecdote About David Dudley Field

Ross E. Davies, George Mason School of Law, has published The Judiciary Funded: The Generosity of David Dudley Field at 14 The Green Bag 2d 433 (Summer 2011). Here is the abstract.

In mid-1894, shortly after the death of David Dudley Field (one of the most powerful and famous, and least-loved, American lawyers of the 19th century), lawyer-journalist Irving Browne published an implausibly laudatory anecdote about Field, based on a letter in which Field claimed to have engaged in a longstanding act of secret philanthropy that was wholly out of character. An experienced observer of public affairs in 1894, or in 2011, surely could be forgiven for doubting the veracity of such a self-serving, out-of-character story, told only posthumously by a friendly journalist, and with no evidence to back it up. The Gilded Age was, after all, a time when politicians and power-mongers like Field could rely on select reporters and editors to serve as virtual publicists – mixing innuendo with truths, half-truths, and non-truths (often supplied by unidentified sources) in news stories that boosted their favorites. Neither Browne nor anyone else seems to have made any effort to verify Field’s story, even though there were seemingly easy ways to do so. It is perhaps for those reasons that Browne’s parable of the secretly saintly David Dudley Field, revealed only post-mortem in all the glory of his selfless kindness and generosity, was largely ignored at the time and has been ever since. But the story is true, or true at least as to Field’s initial generosity. And there is evidence to back it up.
Download the article from SSRN at the link.

October 13, 2011

A Bibliography of Derrick Bell's Works

As promised, a bibliography of Derrick Bell's books and articles, prepared by Kevin Baggett, Circulation Librarian at the LSU Law Center Library. Posted with permission.

Derrick A. Bell Bibliography


1. Faces at the Bottom of the Well: The Permanence of Racism. New York, NY: Basic Books, 1992

2. Silent Covenants: Brown v. Board of Education and the Unfulfilled Hopes for Racial Reform. Oxford; New York: Oxford University Press, 2004.

3. And We Are Not Saved: The Elusive Quest for Racial Justice. New York: Basic Books, 1987.

4. Confronting Authority: Reflections of an Ardent Protester. Boston: Beacon Press, 1994.

5. Shades of Brown: New Perspectives on School Desegregation. New York: Teachers College Press, Columbia University, 1980.

6. The Age of Segregation: Race Relations in the South, 1890-1945: Essays (Co-author Robert J. Haws). Jackson: University Press of Mississippi, 1978.

7. Ethical Ambition: Living a Life of Meaning and Worth. New York: Bloomsbury: Distributed by Holtzbrinck Publishers, 2002.

8. Gospel Choirs: Psalms of Survival for an Alien Land Called Home. New York. NY: Basic Books, 1996.

9. Afrolantica Legacies. Chicago: Third World Press, 1998.

10. Race, Racism, and American Law. Boston, Little, Brown, 1973.

11. The Derrick Bell Reader (Co-authors Richard Delgado, Jean Stefancic). New York: New York University Press, 2005.

12. Civil Rights – Leading Cases. Boston: Little, Brown, 1980.

13. And We Are Not Saved: The Elusive Quest for Racial Justice. New York, Basic Books, 1989.

14. Constitutional Conflicts: Cincinnati: Anderson Pub. Co., 1997.

15. Faces at the Bottom of the Well: The Permanence of Racism. New York, NY: Basic Books, 1992.

16. Silent Covenants: Brown v. Board of Education and the Unfulfilled Hopes for Racial Reform. Oxford; New York: Oxford University Press, 2004.

17. And we are Not Saved: The Elusive Quest for Racial Justice. New York, Basic Books, 1987.

18. Confronting Authority: Reflections of an Ardent Protester. Boston: Beacon Press, 1994.

19. Shades of Brown: New Perspectives on School Desegregation. New York: Teachers College Press, Columbia University, 1980.

20. The Age of Segregation: Race Relations in the South, 1890-1945: Essays (Co-author Robert J. Haws). Jackson: University Press of Mississippi, 1978.

21. Ethical Ambition: Living a Life of Meaning and Worth. New York: Bloomsbury: Distributed by Holtzbrinck Publishers, 2002.

22. Gospel Choirs: Psalms of Survival for an Alien Land Called Home. New York. NY: Basic Books, 1996.

23. Afrolantica Legacies. Chicago: Third World Press, 1998.

24. Race, Racism, and American Law. Boston, Little, Brown, 1973.

25. Civil Rights – Leading Cases. Boston: Little, Brown, 1980.

26. Constitutional Conflicts: Cincinnati: Anderson Pub. Co., 1997.

27. When Race Becomes Real: Black and White Writers Confront Their Personal Histories (Co-Author Bernestine Singley). Chicago, Ill.: Lawrence Hill; Lancaster: Gazelle, 2004.

28. Civil Rights in 2004: Where Will We Be? College Park, Md.: Center for Philosophy and Public Policy, 1985.

29. The African American Law School Survival Guide: Information, Advice, and Strategies to Prepare You for the Challenges of the Law School Experience (Co-author Evangeline M. Mitchell). Houston, Tex.: Hope’s Promise Pub., 2006.

30. Ask Your Mama; 12 Moods for Jazz (Co authors Langston Hughes, Arnold Rampersad, and others). New York: Alfred A. Knopf, Art Farm West, 2009, 1961.

31. In Defense of Minority Admissions Programs: A Response to Professor Graglia (co-author Lino A. Graglia). Philadelphia, 1970.


Bell, Derrick A., Jr.. 2007. "A Prophesy for Effective Schooling in an Uncaring World." Boston College Third World Law Journal 27, no. 1: 1-12.

Bell, Derrick A.. 2004. "The Unintended Lessons in Brown v. Board of Education." New York Law School Law Review 49, no. 4: 1053-67.

Bell, Derrick A.. 2000. "Wanted: a white leader able to free whites of racism.." U.C. Davis Law Review 33, no. 3: 527-44.

Bell, Derrick A.. 2000. "Brown v. Board of Education {74 S. Ct. 686 (1954)}: forty-five years after the fact." Ohio Northern University Law Review 26, no. 2: 171-81.

Bell, Derrick A.. 1999. "“Here come de judge”: the role of faith in progressive decision-making." The Hastings Law Journal 51, no. 1: 1-16.

Bell, Derrick A.. 1999. "A colony at risk." Touro Law Review 15, no. 2: 347-9.

Bell, Derrick A.. 1999. "The power of narrative." Legal Studies Forum 23, no. 3: 315-48.

Bell, Derrick A.. 1999. "Getting beyond a property right in race." Washington University Journal of Law and Policy 1: 27-36.

Bell, Derrick A.. 1998. "Constitutional conflicts: the perils and rewards of pioneering in the law school classroom." Seattle University Law Review 21, no. 4: 1039-51.

Bell, Derrick A.. 1997. "California's Proposition 209: a temporary diversion on the road to racial disaster." Loyola of Los Angeles Law Review 30: 1447-64.

Bell, Derrick A.. 1997. "A gift of unrequited justice." Howard Law Journal 40, no. 2: 305-13.

Bell, Derrick A.. 1996. "Racial libel as American ritual." Washburn Law Journal 36: 1-17.

Bell, Derrick A.. 1996. "A pre-memorial message on law school teaching." New York University Review of Law and Social Change 23, no. 2: 205-15.

Bell, Derrick A.. 1995. "Black history and America's future." Valparaiso University Law Review 29: 1179-91.

Bell, Derrick A.. 1995. "1995 commencement address—Howard University School of Law." Howard Law Journal 38: 463-71.

Bell, Derrick A.. 1995. "The triumph in challenge." Maryland Law Review 54: 1691-9.

Bell, Derrick A.. 1995. "Who's afraid of critical race theory?." University of Illinois Law Review 1995: 893-910.

Bell, Derrick A. and Linda Singer. 1993. "Making a record." Connecticut Law Review 26: 265-84.

Bell, Derrick A.. 1993. "Diversity and academic freedom." Journal of Legal Education 43: 371-9.

Bell, Derrick A. and Erin Edmonds. 1993. "Students as teachers, teachers as learners." Michigan Law Review 91: 2025-52.

Bell, Derrick A.. 1993. "The racism is permanent thesis: courageous revelation or unconscious denial of racial genocide." Capital University Law Review 22: 571-87.

Bell, Derrick A.. 1993. "An epistolary exploration for a Thurgood Marshall biography." Southern University Law Review 20: 83-105.

Bell, Derrick A.. 1993. "Political reality testing: 1993." Fordham Law Review 61: 1033-43.

Bell, Derrick A.. 1993. "Learning the three “I's” of America's slave heritage." Chicago-Kent Law Review 68: 1037-49.

Bell, Derrick A.. 1993. "The permanence of racism." Southwestern University Law Review 22: 1103-13.

Bell, Derrick A.. 1992. "The Racial Preference Licensing Act. A fable about the politics of hate." American Bar Association Journal 78: 50-5.

Bell, Derrick A.. 1992. "Racial realism." Connecticut Law Review 24: 363-79.

Bell, Derrick A.. 1992. "Reconstruction's racial realities." Rutgers Law Journal 23: 261-70

Bell, Derrick A.. 1991. "Racism is here to stay: now what?." Howard Law Journal 35: 79-93.

Bell, Derrick A.. 1991. "Foreword: the final Civil Rights Act." California Law Review 79: 597-611.

Bell, Derrick A., Tracy Higgins and Sung-Hee Suh. 1990. "Racial reflections: dialogues in the direction of liberation." UCLA Law Review 37: 1037-100.

Bell, Derrick A.. 1990. "After we're gone: prudent speculations on America in a post-racial epoch." Saint Louis University Law Journal 34: 393-405.

Bell, Derrick A.. 1989. "Racism: a prophecy for the year 2000." Rutgers Law Review 42: 93-108.

Bell, Derrick A.. 1989. "Xerces and the affirmative action mystique." The George Washington Law Review 57: 1595-613.

Bell, Derrick A.. 1989. "The final report: Harvard's affirmative action allegory." Michigan Law Review 87: 2382-410.

Bell, Derrick A.. 1988. "White superiority in America: its legal legacy, its economic costs." Villanova Law Review 33: 767-79.

Bell, Derrick A.. 1988. "The republican revival and racial politics." The Yale Law Journal 97: 1609-21.

Bell, Derrick A.. 1988. "The constitution at 200: reflections on the past—implications for the future." New York Law School Journal of Human Rights 5: 331-44.

Bell, Derrick A.. 1986. "The dilemma of the responsible law reform lawyer in the post-free enterprise era." Law & Inequality 4: 231-43.

Bell, Derrick A.. 1986. "Strangers in academic paradise: law teachers of color in still white schools." University of San Francisco Law Review 20: 385-95.

Bell, Derrick A.. 1986. "Application of the “tipping point” principle to law faculty hiring policies." Nova Law Journal 10: 319-27.

Bell, Derrick A.. 1985. "The Supreme Court, 1984 term—foreword: the civil rights chronicles." Harvard Law Review 99: 4-83.

Bell, Derrick A.. 1984. "An American fairy tale: the income-related neutralization of race law precedent." Suffolk University Law Review 18: 331-45.

Bell, Derrick A.. 1984. "A tragedy of timing." Harvard Civil Rights-Civil Liberties Law Review 19: 277-9.

Bell, Derrick A.. 1984. "A holiday for Dr. King: the significance of symbols in the black freedom struggle." U.C. Davis Law Review 17: 433-44.

Bell, Derrick A., Alan Freeman, Monroe Fordham and Sidney Willhelm. 1984. "A hurdle too high: class-based roadblocks to racial remediation: a panel." Buffalo Law Review 33: 1-34.

Bell, Derrick A.. 1983. "A school desegregation post-mortem." Texas Law Review 62: 175-90.

Bell, Derrick A.. 1981. "Private clubs and public judges: a nonsubstantive debate about symbols." Texas Law Review 59: 733-54.

Freeman, Alan, Derrick A. Bell and Henry McGee. 1981. "Race, class, and the contradictions of affirmative action." The Black Law Journal 7: 270-89.

Bell, Derrick A.. 1981. "Law school exams and minority-group students." The Black Law Journal 7: 304-13.

The History of the Full Faith and Credit Clause

Charles M. Yablon, Cardozo School of Law, has published Madison's Full Faith and Credit Clause: A Historical Analysis at 33 Cardozo Law Review 125 (2011). Here is the abstract.

The Defense of Marriage Act (DOMA) has created a new wave of interest in the Full Faith and Credit Clause and its apparent contradictions. Important recent scholarship has shown that American lawyers in the eighteenth century often viewed the term “full faith and credit” as referring to an evidentiary rule. This interpretation ameliorates, but does not actually resolve, the apparent conflict between the first sentence of the Clause, which seems to create a mandatory rule of sister state deference, and the second sentence of the Clause, which seems to give Congress plenary power to abrogate that rule. Rather than seek a chimerical general understanding of the Clause, this Article focuses on James Madison to provide a new and strikingly different historical account of the creation of the Full Faith and Credit Clause. It shows how the Full Faith and Credit Clause was part of a broader plan by Madison and others to curb the ability of states to take acts that were harmful to one another and to the nation, particularly those which, by interfering with vested contract and property rights, jeopardized the country’s economic well-being. Madison purposely sought a Clause that would embody a vague but dynamic deference obligation that could be increased by Congress over time.

Madison’s actions and writings regarding the Full Faith and Credit Clause strongly suggest that he would have considered congressional actions to weaken or abrogate existing deference obligations not just unwise and unjust, but unconstitutional. Unlike powers which appropriately belonged to the federal legislature irrespective of how they were exercised, Madison’s justification for the powers granted under the second sentence of the Clause was based on how Madison expected those powers to be used, namely, to “provide for the harmony and proper intercourse among the states.” What emerges from this analysis is a picture of the Full Faith and Credit Clause that has significant similarities to the “one way ratchet” interpretation which has been used to argue that the DOMA is unconstitutional, but one in which the presumed constraints on congressional action are the product of national interest, political virtue, and natural law as well as the language of the Full Faith and Credit Clause.
Download the article from SSRN at the link.

Are We In Kansas? Free Love and the Right of Privacy In State v. Walker

Charles J. Reid, Jr., University of St. Thomas School of Law (Minnesota) has published The Devil Comes to Kansas: A Story of Free Love and the Law as University of St. Thomas Legal Studies Research Paper No. 11-26.

State v. Walker (1887) is an important but hitherto neglected landmark case in the development of the right of privacy. The case involved the "autonomistic" or "free-love" marriage of Edwin C. Walker and Lillian Harman, daughter of Moses Harman, the radical newspaperman.

Edwin and Lillian, who rejected state control over marriage, proclaimed themselves married in the fall of 1887, although they declared that their union was neither permanent or exclusive. Prosecuted for illegal cohabitation because of their refusal to obtain a marriage license, they and their defenders developed a vocabulary that would profoundly influence the future path of American law.

Their supporters in the radical press began to speak of the right of women to control their own bodies, woman's right to reproductive autonomy, and a right of sexual privacy. Indeed, it was in the midst of this controversy that the expression "freedom of choice" was used, probably for the first time, in its modern meaning by Lillian Harman writing from prison.

The Kansas Supreme Court, which ruled on the appeal of their convictions, was, in contrast, a deeply conservative and Christian group of men who were publicly known for their religious fidelity and who brought their religious feelings to bear in the case.

Thanks to the survival of both a substantial body of newspapers and the personal papers of the three justices who ruled on the appeal, it is possible to reconstruct a vivid account of this first skirmish in the American culture wars.

Download the paper from SSRN at the link.

October 11, 2011

Faulkner On Voting Rights

Joel Heller has published Faulkner’s Voting Rights Act: The Sound and Fury of Section Five. Here is the abstract.

In its most recent examination of the Voting Rights Act, the Supreme Court told a story about the South. Although the Court ultimately did not rule on the continued constitutionality of § 5, the VRA provision that singles out certain jurisdictions with a history of racially discriminatory voting practices for additional regulation, its opinion expressed significant doubt that the measure was still justified. In this tale of progress and redemption, the Court concluded that “things have changed in the South.”
One body of commentary that was not considered in this story was the region’s literature. Yet many of these works, in particular the novels of William Faulkner, address some of the same thematic and sociological concerns that animate § 5. Specifically, Faulkner’s novels explore the power of memory in the South and the ongoing influence of the past on present actions and attitudes. In his depiction of the burden of memory, Faulkner suggests a distinct role for § 5 that policymakers and commentators should consider in the debate over its continued necessity. Rather than punishing the sons for the sins of the fathers, the provision can be seen as targeting the independent concern of a past-haunted society and the uncertain results which the unchecked power of memory can produce in the present.
This Article explores how Faulkner’s novels can contribute to a better understanding of the role § 5 serves in the modern South and thus inform the debate over whether the law remains constitutional. In doing so, it also considers the role literature can play in legal analysis beyond the uses typically identified by the law and literature movement.

Download the paper from SSRN at the link. 

Enter, Pursued By Student Loans

William A. Chamberlain, assistant dean, Law Career Strategy and Advancement, Northwestern University School of Law, discusses how acting skills can rev up that job search for young attorneys.

Life upon the wicked stage  
Ain't ever what a girl supposes/
Stage door Johnnies aren't raging
Over you with gems and roses/
When you let a feller hold your hand 
(Which means an extra beer or sandwich)
Eve'rybody whispers:  'Ain't her life a whirl?'/
Though you're warned against a roue'  
Ruining your reputation/
I have  played around the  one-night  trade 
Around a great big nation/
Wild old  men who give jewels and sables 
Only live in Aesop's Fables/
Life upon the wicked stage
Ain't nothing for a girl.

"Life Upon the Wicked Stage", Showboat
Jerome Kern/Oscar Hammerstein II (1927)

Nineteenth-Century Contract Law

Anat Rosenberg, Radzyner School of Law, Interdisciplinary Center Herzliya, has published Classical Contract Law, Past and Present. Here is the abstract.

This paper synthesizes and refocuses a wide range of histories of nineteenth-century contract law. It shows how despite significant controversies among historians, a widely shared consensus has it that nineteenth-century contract law embodied an elaborate version of individualism; that the alternatives to its individualism were status and collectivism - but they functioned as external critiques until well into the twentieth century if not ever since, and so left contract's conceptual link with individualism intact; and that the individualism grounded in contract law was in keeping with the individualism of its age. 

The consensus effectively entrenches a questionable historical artifact: the idea of a single meaning of contract at the decisive era for modern contract law's development. This idea's persistence bears implications for present thought as it negotiates visions of contract, and as it explores law's constitutive effects on social consciousness.

Latin in the Law

Teodor Sambrian has published Interpreting Law from the Roman Concept Interpretation to Modern Interpreting, Through the Adages of Juridical Latin in volume 5 of the Romanian Review of Private Law (2011). Here is the abstract.

The work is divided into six sections. In the preliminaries, we precise the sense of certain terms and we enumerate the most frequently used Latin adages that Romanian authors do mention while interpreting law. In the second and third sections, we do discuss the main causes which brought as necessary the development of interpreting law as an institution. The interpreting forms employed in Roman law are evoked. We do approach the methods used for interpreting law (in the fourth section) and we propose the substitution of the designation as "grammatical interpreting" by the designation: "linguistical interpreting", understood as an aggregate of procedures used for analysis – in etymology, semantics and grammar – in order to elucidate the sense of a normative or juridical act. The fifth section, the most extended one, is dedicated to the Roman principles and rules applied in order to interpret law, and to the way through which they were transferred, through juridical Latin, into Romanian law. This process involves as well legislation by itself and the great juridical tomes of doctrine. In the sixth section, where conclusions are drawn, we do launch the proposal of elaborating a dictionary of juridical Latin, which ought to be more panoramic than the dictionaries of this kind published in Romania until now, and which should contain, inter alia, all the Latin words, phrases, adages and quoted passages which should be relevant, as they are actually used by Romanian works in private and public law.
The full text is not available from SSRN.

October 7, 2011

Trials In the News

Commenting on the popularity of high profile trials, including those of Casey Anthony, Amanda Knox, and Conrad Murray, CNN offers a list of its top five courtroom dramas.

October 6, 2011

The Future of Law Librarianship

Robert C. Berring, University of California, Berkeley, School of Law, has published The End of Scholarly Bibliography: Reconceptualizing Law Librarianship. Here is the abstract.

The dawning of the age of digital information shifts the paradigm of the traditional scholar librarian. As three dimensional representations of information wither away, [t]he scholarly legal bibliographer, a fixture in legal academia is devolving into an antiquarian. This brings into question the future of academic law librarianship and how it can be saved.

Download the paper from SSRN at the link.

A Giant Passes From the Scene

Derrick Bell, the first tenured African-American professor at Harvard Law School, died Wedneday at the age of 80. According to this article, published today in the New York Times, Professor Bell suffered from carcenoid cancer. Professor Bell also taught at New York University Law School and was Dean of the University of Oregon Law School. Early on, Professor Bell espoused the use of narrative and allegory to explain the workings of law and he became one of the founders of the critical race studies movement. His contributions are many, and he will be missed.

More here from The Root, here from National Visionary Leadership Project.

I will post a bibliography of Professor Bell's works sometime in the next few days.

October 3, 2011

Musical Rhetoric in Legal Language

Ian Gallacher, Syracuse University College of Law, has published The Count's Dilemma, or, Harmony and Dissonance in Legal Language in Legal Communication & Rhetoric, no. 9 (2012). Here is the abstract.

Lawyers have had a long, but ambivalent, relationship with metaphor. Viewed by some as a mere literary device, a trick of language that "adds little of substance to an argument," metaphor is seen by others as an essential component of legal language, a rhetorical device inseparable from thought. On one thing, though, all can agree: lawyers only have words to express their thoughts, so they have an obligation to use words, whether used metaphorically or not, as exactly as possible. 

This article offers a critique of the way lawyers meet this obligation when they use metaphors based in musical language. In particular, the article examines the ways in which the musical term "harmony" is used as a metaphor to explain the nature of the relationship between disparate elements of the law and concludes that the metaphor fails to convey its intended meaning. In order to reach this conclusion, the article explores the meaning of "harmony" in music and then shows how the musical and assumed legal usages diverge, making "harmony" an inexact metaphor for lawyers to use. Although recognizing that "harmony" will likely continue to be used, the article proposes "tonality" as a better, more precise, alternative musical term for lawyers to use.

Download the article from SSRN at the link.

The Impeachment of Samuel Chase

Adam A. Perlin has published The Impeachment of Samuel Chase: Redefining Judicial Independence at 62 Rutgers Law Review 725 (2010). Here is the abstract.

This article hopes to make the following contributions to the existing academic scholarship:

First, some legal scholars have ignored how the impeachment contributed to the modern apolitical judiciary or have construed its contribution too narrowly. This article provides a fuller explanation of the impeachment’s contributions to our modern understanding of judicial independence and what properly constitutes an impeachable offense. 

Second, the article touches upon the contribution the debates over Chase’s impeachment made to more peripheral subjects, such as the debates over jury nullification and judicial review. 

Third, this article fills a void in the academic literature, as there are almost no articles fully addressing the “story” of Chase’s impeachment and even fewer which analyze the importance of the debates in the House of Representatives and the examination of the trial witnesses. 

Given the increasing attention devoted to judicial activism and persistent calls for the impeachment of federal judges, the lessons of the Chase impeachment are perhaps more relevant today than ever before. By addressing the issues mentioned above, this article endeavors to draw greater attention to a major event in American legal history and to give a turning point in the history of impeachment and the judicial branch the attention it deserves.

The Lindbergh Law and the Press

Barry Cushman, University of Virginia School of Law, has published Headline Kidnappings and the Origins of the Lindbergh Law, in volume 55 of the St. Louis Law Journal. Here is the abstract.

The federal kidnapping statute of 1932 -- which prohibits the transportation of a kidnapped person across state lines -- is commonly known as the Lindbergh Law due to its enactment in the immediate wake of the abduction of Charles and Anne Lindbergh’s child in March of that year. Indeed, but for the commission of that crime the statute probably would not have been enacted. But the Lindbergh affair alone cannot explain the form that the congressional reaction took. For the Lindbergh baby was found murdered fewer than four miles from his home, and there was no evidence that he had been transported across a state line. Had the Lindbergh Law been in effect when young Charles Lindbergh was kidnapped, it would not have applied to the offense. In fact, the bill that ultimately became the Lindbergh law was not introduced in the wake of that sensational crime, nor was it introduced by members of the New Jersey delegation that represented the Lindbergh family and the state in which the crime had been committed. Instead it had been introduced three months before the Lindbergh abduction by Senator Roscoe Conkling Patterson of Missouri and Representative John Joseph Cochrane of St. Louis. 

The congressional hearing on the bill, which took place a week before the Lindbergh kidnapping, was dominated by testimony of officials from St. Louis. Owing to its strategic location on the state border with Illinois, that city had become a center of profitable activity for the organized criminals running the midwestern "snatch racket." This essay, prepared as a comment on Professor Lawrence Friedman’s Childress Lecture on "headline trials" at St. Louis University School of Law, explores the high-profile abductions of the early 1930s that spurred St. Louis leaders to seek federal legislation to address the scourge. These included kidnappings of scions of the Anheuser-Busch and International Shoe fortunes; but the story that dominated headlines and riveted the attention of the community for much of the decade involved the 1931 interstate abduction of the city’s leading otolaryngologist by a group of mobsters and ex-convicts led by a prominent St. Louis socialite named Nellie Muench. Nellie, whose underworld nickname was "Goldie" due to her exceptional interest in lucre, was married to a local physician, was the daughter of a well-known Baptist minister, and was the sister of a judge on the Missouri Supreme Court. The saga of Nellie and her partners in crime involved a parade of colorful figures participating in multiple criminal trials; the drive-by machine-gunning of a key witness; a near-fatal attack on the chief prosecutor; a faked pregnancy and two illegal adoptions (one of which resulted in an infant’s death) in order to curry favor with her criminal jury; an unsuccessful attempt to retain custody of the surviving child in a hearing before Special Commissioner Rush Limbaugh, Sr.; and ultimately a mail fraud conviction for seeking to extort $250,000 from the bachelor with whom she had initiated an affair and had told that he was the father of her child.
Download the article from SSRN at the link.