This essay discusses Aleksandr Solzhenitsyn’s Gulag Archipelago from the aspect of “law and literature.” As a starting point, it argues that its “legal” reading is of a high relevance, since it helps us to better understand both the reality of Soviet law and the achievements of our legal systems. In order to illustrate this, it examines various legal layers embedded in the work: legal history, sociology of the punishment, criminal investigation, organizational sociology and psychology, and legal theory. In addition, the essay also focuses on the role of Western Law as a contrast in Solzhenitsyn’s work, and analyzes its metaphorical language about law. To conclude, it argues that this book could caution lawyers of the consequences of a politically-oriented approach to law that disregards the fundamental values of Western law.Download the article from SSRN at the link.
June 30, 2012
June 29, 2012
Virtue jurisprudence is an approach to legal theory that develops the implications of virtue ethics and virtue politics for the law. Recent work on virtue jurisprudence has emphasized a NeoAristotelian approach. This essay develops a virtue jurisprudence in the Confucian tradition. The title of this essay, “Confucian Virtue Jurisprudence,” reflects the central aim of our work, to build a contemporary theory of law that is both virtue-centered and that provides a contemporary reconstruction of the central ideas of the early Confucian intellectual tradition.Download the essay from SSRN at the link.
This essay provides a sketch of our contemporary version of Confucian virtue jurisprudence, including a view of (1) the ends of law, (2) legislation and the judiciary, (3) the nature of law. We shall argue that the highest value of Confucian ethical, political theory is the virtue of citizens and the harmony of society and individuals. From the perspective of the use of evaluative language, the Confucian doctrine of Correcting Names gives us an explanation of the mechanism of internalization of legal rules in terms of the relationship among social norms, law and thick evaluative concepts. This might throw light on our normative understanding of legislation and the judiciary,and it also provides a functional account of the nature of law.
Focusing on the writings of Jean-Jacques Rousseau, this article offers an account of an important episode in the historical development of international legal theory: the emergence of a conception of the state as a singular agent, a fictional person that behaves differently from the people who constitute it. In the process, this article challenges prevailing interpretations of Rousseau's place in the Western tradition of international thought and also situates him in the positivist tradition of international law.Download the article from SSRN at the link.
This Article examines the lives of two female convicts who rebelled against the law and the Australian penal system in the early nineteenth century. It follows Ellen Murphy and Jane New from their first arrests through their experiences with and exits from the penal system. As thieves, convicts, domestics, and wives, Ellen and Jane interacted repeatedly with the law. Both the notorious Jane (who was the subject of a habeas corpus action in In re Jane New), and the more representative Ellen, began thieving as young teenagers in the teeming cities of England. The law arrested, tried, and convicted them. Next it transported them to Van Diemen’s Land (now, Tasmania). It then unsuccessfully attempted to manage their lives.Download the article from SSRN at the link.
The law influenced convict women’s choices in more overt ways than it did free women although, as this Article discusses, many similarities existed between the legal disabilities imposed on both groups and, on occasion, as with Jane New, the law doubly disabled convict women because they were assigned to their husbands. Nevertheless, Ellen and Jane’s interactions with the law illustrate how convict women were able to make meaningful choices even in the heavily regulated penal systems of Governors Arthur of Van Diemen’s Land and Darling of New South Wales.
June 26, 2012
The deadline for submissions for the Paul Murphy Prize to support completion of a book on the history of civil liberties is coming up.
Deadline June 30 for Nominations for Paul Murphy Prize
The American Society for Legal History announces the Paul Murphy Prize to support the completion of a book on the history of civil liberties that addresses any topic or any time in American history. The award will be given out two times only, in 2012 and 2013. Recipients will receive $5000 to support their work. Nominees at all levels of seniority will be considered, however the award is not for the completion of a dissertation.
The award honors Paul L. Murphy (1923-1997), who spent much of his career at the University of Minnesota where he rose to the rank of Regent’s Professor of History and American Studies. At the time of his death, he was in the second year of his term as president of the ASLH. During his tenure at Minnesota he became one of the nation’s leading constitutional historians and a mentor to generations of undergraduate and graduate students.
Among his most important books were: The Meaning of Freedom of Speech: First Amendment Freedoms from Wilson to FDR (1972); World War I and the Origin of Civil Liberties in the United States (1979); and Historic Background of the Bill of Rights, Vol. 1 (1990). In addition, civil liberties played a fundamental role in the argument he developed in what was likely his most influential book, The Constitution in Crisis Times 1918-1969 (The New American Nation Series, 1972). Murphy’s commitment to civil liberties and his passion for the subject was evident in his deeds as well as his words. He was an ardent and committed member of the American Civil Liberties Union throughout his life. For additional information on Murphy please see the tribute to him in the Law and History Review, 16 (Spring 1998), ix-xi.
To be considered for this award, authors or nominators should send a book proposal with chapter descriptions, a discussion of the book’s contributions, and a time-line for completion; a sample chapter; and a c.v. to committee chair Mary L. Dudziak (firstname.lastname@example.org). Submissions via e-mail are preferred, and attachments can be in Word or PDF. Please put “Murphy Prize” in the subject line. If you must submit by hardcopy, please send four copies of these materials to arrive by the deadline to this address: Professor Mary L. Dudziak, USC Gould School of Law, 699 Exposition Blvd., Los Angeles, CA 90089.
The deadline for receipt of proposals for this year’s award is June 30, 2012.
Members of the Murphy Prize Committee are:
Mary L. Dudziak, Chair, University of Southern California
Robert Kaczorowski, Fordham University
Serena Mayeri, University of Pennsylvania
David M. Rabban, University of Texas
June 25, 2012
At first glance, many jurists often perceive their own (Private) law to be somewhat hermetic in nature. Their law exists in its own self-contained cosmos, independent from others in the legal universe, yet its atmosphere is sometimes breached by the ‘meteorites’ of international and European law. The reasons for this perception are clear: it is often difficult to ascertain in ones own legal system the influences from foreign (or supranational) law and from foreign legal cultures. This is impeded further by most universities failing to approach this topic, except briefly in the context of international and European law. The following therefore shall attempt to at least attenuate this deficit by providing a ‘birds-eye view’ of German law. In doing so, not only shall the clear marks left in each legal area by foreign and supranational law be shown, but also how they continue to considerably impact upon the German legal landscape and legal culture.Download the article from SSRN at the link.
June 21, 2012
There is just one small, long-out-of-print book devoted to the exploits of “Mr. District Attorney”: Mr. District Attorney on the Job (1941), the first chapter of which is printed below at pages 307-338. Nevertheless, to many Americans he is a familiar figure – the first great “ripped from the headlines” crime drama lawyer. If you were born before 1950, there is a good chance that as an impressionable youth you heard or saw Mr. District Attorney. His runs on radio (1939-53) and in comic books (1939-42, 1948-59) were long and successful; in the movies (1941-42, 1947) and on television (1951-52, 1954-55) less so. As a Founding Figure of lawyering in popular culture, Mr. District Attorney has been the subject of some study by modern scholars of law in society, and he will probably enjoy more attention in the future. One aspect of Mr. District Attorney that merits study is his provenance, because the source (or sources) of his character might shed light on the development of the fictional lawyer as action figure.Download the article from SSRN at the link.
June 20, 2012
Guilherme Vasconcelos Vilaça, European University Institute, Department of Political and Social Sciences; University of Queensland, School of Political Science and International Studies, has published Interdisciplinarity and Tax Law: The Case of Legal Autopoiesis in Critical Perspectives on Accounting (2012). Here is the abstract.
This paper critically evaluates interdisciplinary research in tax law. The strategy I follow runs at two levels of abstraction.
First, I examine a concrete example of interdisciplinary research in taxation. More precisely, I examine Hikaka and Prebble's (2010) recent paper where, applying Luhmannian autopoietic theory to tax law, they make a series of claims about the productivity of their research strategy as well as the consistency and coherence of Luhmann's interdisciplinary framework. Whereas my analytical and conceptual critique of Hikaka and Prebble's paper stands on its own, it should also be read as revealing the obstacles that lurk behind interdisciplinary research in using such a complex and idiosyncratic theory as Luhmann's autopoietic account of law and society. Accordingly, my analysis shows how autopoietic theory can indeed prove useful for tax and accounting reform as well as to connect tax theory and notions of public interest.
Second, I extrapolate from the analysis of Hikaka and Prebble's paper some general problems that current interdisciplinary tax research needs to give further consideration: (i) how to identify productive research questions and uses of interdisciplinary resources; (ii) the dubious added value of interdisciplinary research, given its tendency to adopt complex theoretical apparatuses in a cursory way with little comparison being made to existing research achievements; and (iii) the risk of using interdisciplinary research as an exercise of confirmatory investigation and/or an exercise of mere translation of one discipline's problems into another discipline's language.The full text is not available from SSRN.
Britta Van Beers, VU University Amsterdam Faculty of Law, has published TV Cannibalism, Body Worlds and Trade in Human Body Parts: Legal-Philosophical Reflections on the Rise of Late Modern Cannibalism, at 4 Amsterdam Law Forum 65 (2012). Here is the abstract.
In December, 2011 two Dutch TV presenters ate pieces of each other’s flesh in front of a live television audience. Despite the obscurity of this cannibalistic episode in television history, the matter touches on a series of complex legal and philosophical questions that are discussed in this article, such as the boundaries of criminal law, the legal limits of personal autonomy and law’s changing relation to the biological aspects of life. Moreover, through its analysis of the arguments involved, this article offers legal-philosophical reflection on the role of taboos in legal approaches to the human body and derived materials.Download the article from SSRN at the link.
In this paper, I defend three claims.Download the paper from SSRN at the link.
First, contra some classicists and legal historians, classical Athens during the democratic period substantially satisfied the demands of the rule of law (excepting its treatment of women, noncitizens, and slaves). I show that arguments to the contrary mostly represent an unduly narrow conception of what might count as law in Athens, one that inappropriately excludes common-knowledge social customs.
Second, Athenians saw the rule of law as serving the equality of mass and elite, oligarchs and democrats: there was no contradiction (again contra some classicists) between the democratic power of the masses and the rule of law. This equality consisted in two topoi frequently deployed in the Athenian legal and social discourse. First is the respect topos, according to which the laws represent respect for the democratic polis. To disregard them is to reveal one's lack of respect for the polis and one’s oligarchic character. Second is the strength topos, according to which the laws are the way that the democratic polis exercises its power: weak members of the masses cannot stand up to strong members of the elite alone, they need the backing of the whole community, and that backing is coordinated through the law; to undermine the law is thereby to undermine the political power of the masses.
Third, this connection between equality and the rule of law explains the most striking fact about Athenian legality, to wit, the otherwise puzzling effectiveness of the amnesty enacted for crimes committed under the Thirty Tyrants. The strength topos explains why the democrats in Athens refrained from avenging themselves against the Thirty despite their opportunity to do so: by doing so, they would have undermined the law, and thereby their own equality. The strength topos led the Athenians to take the internal point of view on the law.
The account of the rule of law deployed in this paper is that developed in my Equality Under the (Rule of) Law, also available on SSRN at http://ssrn.com/abstract=1918742. This paper serves the function, in part, of demonstrating the cross-cultural applicability of the conception of the rule of law developed in that paper.
June 19, 2012
"Blowing the whistle" in organizational and public life is akin to speaking out and denouncing wrongdoings. Parrhesia, free speech, is a strongly-held value in western societies, but when manifested in organizations as whistle-blowing it is often seen as troublemaking. Most research on whistle-blowers is based on instrumental knowledge. But time has come to develop new perspectives on whistle-blowing (Wolfe Morrison, 2009). We answer the call to re-energize this research arena by developing a critical knowledge, which fosters reflection (Habermas, 2005: 316). Our discussion is based on exploring the analogy between Antigone, the Sophoclean heroine and whistle-blowers. Specifically, we address the readings of the tragedy by authors such as Hegel, Lacan and Heidegger considering what these offer to our understanding of whistle-blowing. These help us explain why whistle-blowers are often seen as ambiguous figures with ambivalent motives. And why whistle-blowing can be recast as an ethico-political act.Download the paper from SSRN at the link.
François-Xavier Licari, University of Metz, Faculty of Law, has published François Gény En Louisiane. Here is the abstract.
Download the paper from SSRN at the link.
L'oeuvre de François Gény a fait l'objet d'une véritable réception tant par la doctrine que par la jurisprudence louisianaises. Cette contribution narre cette sucess story doctrinale, véritable réalisation de la prophétie de Jaro Mayda ("François Gény and Modern Jurisprudence" (LSU Press, 1978, p.69), traducteur et fin connaisseur de "Méthode d'interprétation et sources".
In his book "François Gény and Modern Jurisprudence" (LSU Press, 1978), Jaro Mayda wrote (p.69): "The important point…is that, despite the art represented by the current literature, the pragmatic temper of America and of its mixed jurisdictions, such as Louisiana, may well be the environment that will send Gény’s themes toward their integration into a rational, modern jurisprudence".
This paper tells the story of the realization of this scholarly prophesy.
June 18, 2012
Brian Soucek, United States District Court, District of Connecticut, has published Not Representing Justice: Ellsworth Kelly's Abstraction in the Boston Courthouse at 24 Yale Journal of Law and the Humanities 287 (2012). Here is the abstract.
The $10 billion worth of federal courts constructed over the past two decades are filled with major works of abstract art that the government touts as “inherently democratic,” since they are said to mean anything viewers think they mean. This claim is as mistaken about abstract art as it is about democracy; it fails to recognize that courts are democratic not in the relativistic manner of the voting booth, but because of their commitment to fair and public proceedings followed by reasoned deliberation.
Ellsworth Kelly’s monochromes in Boston’s federal courthouse present a stark test of the potential politics of abstract public art. Kelly’s aim — to teach viewers “the rapture of seeing” — is puzzling within a courthouse, where the “blindness” of justice is more often emphasized. I claim that Kelly’s emphasis on sight makes sense only when we shift our focus from judges and judging—the predominant focus of courthouse art—to an often overlooked party in adjudication: the public, whose role as spectator is fundamental to truly democratic courts.Download the article from SSRN at the link.
June 14, 2012
Medieval will-making has often been associated with efforts right before death. But estate planning activity at an earlier time was also possible and was pursued by the upper reaches of English society. Sir John Fastolf (1380-1459), a wealthy East Anglian knight, made substantial efforts to plan his estate. He made several wills and charters enfeoffing land to his use. But his efforts faced many obstacles and ultimately failed, resulting in a contest regarding the validity of his death-bed will.
This essay documents those estate planning activities. It does so by recounting a story of longstanding interest to medieval historians and other scholars. Using extensive primary sources, the essay, for the first time, explores completely and orderly all the relevant wills, charters, and other documents as well as the voluminous testimony in the will contest.
The full story shows that Fastolf’s estate planning efforts were ultimately frustrated by deathbed changes, other claims on the property, the need for royal approval, political factors, conflicts among executors, and papal intervention. Nor is it clear whether they ever could have been successful or whether medieval estate planning could ever be secure.
Download the paper from SSRN at the link.
Mr. Hill sold "Goodfellas" items on his website. As of today, one can still purchase mugs (the kind that hold liquid), aprons, mousepads, and books, and get updates about him on the site.
June 13, 2012
This article is an introduction to a Symposium on Bob Dylan and the Law which was co-sponsored by the Louis Stein Center for Law and Ethics, Touro Law Center, and the Fordham Urban Law Journal in 2011.Download the foreword from SSRN at the link.
June 12, 2012
As an alternative, write your own "Ackie." A journey can begin with a single step, and a novel can begin with a single sentence.
June 7, 2012
Simon Stern, Faculty of Law, University of Toronto, has published 'Room for One More': The Metaphorics of Physical Space in the Eighteenth-Century Copyright Debate in volume 24 of Law and Literature (Summer 2012).
This article focuses on literary texts and writings by copyright polemicists – those arguing for and against stronger copyright protection during the eighteenth century. The metaphor of the text as a tract of land has been cited by other commentators on copyright history, but has not been examined closely. Working through a series of writings on imitation and derivative use, the article shows how the metaphor seemed initially to provide an ideal basis for demanding stronger copyright protection and for policing piracy and derivative uses more aggressively, but turned out, in some writers’ hands, to offer yet another means of portraying the literary marketplace as endlessly expansive. Henry Fielding, in his literary journalism, insisted that there was always “room for one more” even in a crowded marketplace, and he invoked a series of legal doctrines to defend the practice of intercommoning and even poaching on a “neighbour” writer’s land. Far from dictating a particular view of the law, the metaphors of copyright are always capable of being revised and reinterpreted to support the writer’s own perspective.Download the abstract from SSRN at the link.
June 6, 2012
Amy Ronner, St. Thomas University School of Law, has published Does Golyadkin Really Have a Double? Dostoevsky Debunks the Mental Capacity and Insane Delusion Doctrines at 40 Capital University Law Review 195 (2012). Here is the abstract.
In Dostoevsky's "The Double," one of the great, but lesser known Russian novels, protagonist Golyadkin suddenly meets his identical twin, who ostensibly wreaks havoc on his life.Download the article from SSRN at the link.
While "The Double" appears to have nothing to do with the law of wills and trusts and has not been redacted into any law school case book, I now suggest what might irritate some staunch traditionalists -- namely that Dostoyevsky should claim an entire chapter on the mental capacity doctrine. It is this article's narrow thesis that "The Double" debunks, or, at least sheds doubt, on some basic mental capacity and insane delusion concepts. On a broader level, this article, diveded into four parts, explores Dostoevsky's proposition that in many cases, we (as lawyers or mere mortals) are incapable of determining unsound mind and insane delusions.
Part II focuses on wills and trusts because it boasts of having a sacrosanct policy in favor of testamentary freedom. Despite that policy's stronghold, courts have in some cases limited or eradicated a decedent's ability to direct the disposition of property upon death. One instance is where contestants argue lack of mental capacity or use a doctrine called "insane delusion" or "monomania" to invalidate estate plans that either omit them entirely or slight them as beneficiaries. Although in wills' law, sound mind and insane delusion are legal constructs, this article, borrowing from the psychiatric definitions of "bizarre" and "non-bizarre" delusions, cordons them to Dostoevsky's message in "The Double."
Part III, shifting from law to literature, summarizes the story in "The Double" and the raging debate over not just the novel's meaning, but also Golyadkin's mental condition. This part suggests that the controversy surrounding this novel belies the fact that in "The Double" we cannot ascertain what is real and what is hallucination. This part, linking Dostoevsky's thesis to the current mental capacity doctrines, suggests that Golyadkin, like many testators, would baffle our courts if his psyche were under the will-contest microscope. In fact, the uncertainty in "The Double" resembles the disquieting dubiousness of such contests, particularly in litigation in which individuals are alleged to have "non-bizarre" delusions. This part goes further than just complaining, however, but, taking a stab at a solution, proposes the sort of doctrinal revamping, which would heed Dostoevsky's wise admonition.
Part IV concludes by revisiting the one (or two Golyadkins) who disclose(s) the most deleterious effect of our current capacity law and demonstrates why it is so crucial to make change.
June 5, 2012
Law and poetry make a potent, if surprising, pair. Poetry thrives on simultaneity and open-endedness, while legal writing aspires to resolve issues decisively, whether it advocates or adjudges. The law and literature movement has traditionally focused either on law as literature, applying literary theory and techniques to legal texts such as judicial opinions and legislation, or law in literature, i.e., law as portrayed in literary and artistic works. Poetry and poetics have garnered relatively little attention under either approach. While some scholars blame that omission on a supposed dearth of law-related poetry, the poems collected in Kader and Stanford's "Poetry of the law: From Chaucer to the Present" (2010) belie that claim. This essay considers the place of poetry in legal studies and advocates incorporating it into both the dialogue and the curriculum of the law and literature movement. It identifies themes that emerge from the juxtaposition of the poems in the anthology, examines the relationship of fixed-verse forms to law in the poems, and draws attention to those voices that are underrepresented in the collection and the movement. It relies primarily on the process of close reading several of the hundred poems included in "Poetry of the Law" and, in so doing, it practices law in literature while it models precisely the type of critical approach that would serve those participating in the study of law as literature. It prescribes a canon of law-related poetry and illustrates how the inclusion of poems and techniques of poetic interpretation stand to benefit students, lawyers, and theorists alike.Download the book review from SSRN at the link.
This article argues that infanticide, and the legal and social responses thereto, exhibited a compromise between conflicting sentiments, realities, and paradigms. As a result, the actions of defendants, prosecutors, judges and jurors, and the public at large were characterized by competing motives and countervailing sympathies. The infant victims were nominally the focus of the law, but in reality these acts were viewed as crimes against social conventions. The issue of infanticide during this period therefore presents a fascinating study in this heavily gendered area of nineteenth-century criminal law, reflecting stark differences between law and custom. This article will provide a brief discussion of the historiography and underlying methodology, followed by the political and historical context for the Montreal experience, before moving on to the issue of infant abandonment, coroner's inquests, and the legal mechanics of infanticide prosecutions.Download the article from SSRN at the link.
From Law and History Review's introduction: "Our final article, by Ian Pilarczyk, examines the phenomenon of infanticide and the legal responses to [it] in Montreal from 1825 to 1850, a period marked by significant economic, social, political, and legal flux. Working with thirty-one unpublished case files of infanticide, he illustrates that the legal and social ramifications of this heavily gendered crime were characterized by complexity, compromise, and conflict. He finds that the Canadian response largely mirrored that of other nineteenth-century Western jurisdictions. This finding suggests that local context matters, but should also remind scholars to consider the significance of transnational patterns in policing."
June 1, 2012
Editorial by Paul Raffield and Gary Watt
free to view – please click on the link below:
Between the Nihilism of the Young and the Positivism of the Old: Justice and the Novel in DH Lawrence
Screening the Law in China: Law, Image and Evidence in Three Documentaries on HIV/AIDS Cases by Ai Xiaoming
Carry On Up the Aisle!
Edmund Spenser and Chancery in 1597
Andrew Hadfield and Simon Healy
Wittgenstein’s Tractatus and the Law
Comics, Law, and Aesthetics: Towards the Use of Graphic Fiction in Legal Studies
Continuing Professional Education in Legal Ethics through Literature: An Example Using Dickens’s Bleak House
Christine L Krueger, Reading for the Law: British Literary History and Gender Advocacy
Austin Sarat, Cathrine Frank and Matthew Anderson (eds), Teaching Law and Literature
Audun Kjus, Stories at Trial
To access this issue online, read the abstracts and purchase individual papers please click here:
Information furnished by Jo Ledger, Hart Publishing