March 28, 2013

Final Call For Panelists, AALS Section on Law and Humanities, 2014 AALS Annual Meeting

From Bennett Capers, Chair, AALS & Humanities Section

Call for Panelists
AALS Section on Law and Humanities
“Law and Music”
2014 AALS Annual Meeting
January 3-6, 2014, New York, NY
Submission Deadline: Friday, March 29

There is a rich tradition of legal scholars exploring uncommon connections between music and the law.  Richard Posner, for example, has argued that understanding the authentic music movement (the insistence that period music be played with period instruments) can help us better understand, and critique, constitutional originalism.  Other scholars have noted the connection between jazz and the law, argued that music can be used to reduce crime, and explored the jurisprudence of Bob Dylan.  And of course, Paul Butler has argued that punishment theorists can learn much from hip-hop.

What are we to make of these and other uncommon connections between the law and music?  What role does the digitalization of music play in how we think about law and music?  Are there connections to be made between law and music in our legal scholarship and in our law teaching as well?  If being attentive to law and literature can make us better lawyers and scholars, what does being attentive to law and music do? And, last but certainly not least, what’s on your playlist?  This program will explore these issues with several invited panelists and panelists who are accepted through this call.

To be considered as a panelist, please submit a statement of interest by Friday, March 29, 2013, including a description (2-3 paragraphs are sufficient) of your presentation that will address one or more of the themes highlighted in the above description, and the methodology through which you will advance such themes. Please also submit an updated curriculum vitae.

Submit all materials to Professor Tamara Lawson, St. Thomas University School of Law, via electronic mail at

Panelists will be selected by April 15, 2013. The Section hopes to have these papers published as part of an online mini-symposium sponsored by a law review, either in print or online.  All panelists will be responsible for paying their annual meeting registration fee and travel expenses.

Full-time faculty members of AALS member law schools are eligible to submit papers. Foreign, visiting (and not full-time on a different faculty) and adjunct faculty members, graduate students, and fellows are not eligible to submit.

Prof. Bennett Capers
Chair, AALS Law & Humanities Section
Brooklyn Law School
250 Joralemon Street
Brooklyn, NY 11201

March 27, 2013

As the Court Considers Prop 8 and DOMA

Law and Trauma, Seen Through Graphic Novels

Karen Crawley, Griffith Law School, and Honni Van Rijswijk, University of Technology, Sydney, have published Justice in the Gutter: Representing Everyday Trauma in the Graphic Novels of Art Spiegelman. Here is the abstract.
Scholars working at the intersection of law and trauma have often turned to literature to supplement the law’s version of justice. In this article, we consider what the unique formal properties of comics – which we refer to here as graphic novels – might bring to this pursuit, by reference to Art Spiegelman’s Maus (1996) and In the Shadow of No Towers (2004). We suggest that these two works offer a critique of the underlying model of trauma upon which law relies, suggesting alternative understandings of trauma in a mode which is particularly instructive for law. Although Spiegelman organizes his treatment of trauma through specific events that have defined the twentieth and twenty-first centuries – the Holocaust and 9/11 – he represents the impact, as well as the ethical and aesthetic questions of these experiences, in ways that radically challenge the supremacy of the event by showing the ways in which the event fails to be contained.
Download the paper from SSRN at the link. 

March 25, 2013

The Portrayal of Crime in Hindu Films

Karthik Suresh, National Academy of Legal Studies and Research (NALSAR) University, has published 'Apaharan' and the Making of a Criminal - Portrayal of Crime by Popular Hindi Cinema. Here is the abstract.

Apaharan, released in 2005, is a movie based on the kidnapping ‘industry’ that operates in Bihar even today. In this movie, the well-known actor Ajay Devgn plays a young, out-of-work salesman, who applies for a post in the State Police. He clears the merit list, but is asked to pay a bribe of 5 lakh rupees. Just before his selection, major differences crop up between Home Minister Dinkar Pandey and Ajay’s father, with the latter threatening to expose the corruption within the State Ministry. Dinkar ensures that Ajay's name is dropped from the shortlist, and the money-lender sends his goons after him, giving him 3 days to come up with the money. A desperate Ajay decides to be part of the lucrative kidnapping scheme in Bihar, abducts a Government official and demands a ransom so that he can re-pay his loan. The story then goes on to show Ajay’s rise in the kidnapping industry, reaching his zenith as the kingpin of the industry. His eventual downfall is shown, as differences crop up later in the story with his mentor Tabrez Alam (played by Nana Patekar).
What I am to focus on, in this paper, is the construction of crime which leads to Ajay Devgan becoming wanted for cases of kidnapping, extortion and murder. What is described as ‘making of a criminal’, and the criminology-related aspect of the commission of the crime, is to be discussed in this paper. This, shall be spoken about in the light of popular Hindi cinema which have represented crime and criminals in various shades. The researcher is to use various models of criminology, including Engels' model of construction of crime, as also other criminological discourses about how a 'criminal mind' takes shape. This is to be connected to Apaharan in particular, but research would also be done into other Hindi movies, Vaastav, Deewar (Amitabh Bacchan's role in that movie) etc.
A society's perception of crime and the making of a criminal could be well-understood by the cinema it produces. Hindi cinema, being the lingua franca of this country, could well give an opportunity to look into Indian society's perception of how a criminal is made. Through Apaharan, the researcher aims to gauge the idea of crime and the 'making of a criminal' in the Hindi film industry.
Download the paper from SSRN at the link. 

The Spanish Legal Influence In West Florida

Sean Patrick Donlan, University of Limerick, is publishing Entangled Up in Red, White, and Blue: Spanish West Florida and the American Territory of Orleans, 1803-1810, in Entanglements in Legal History: Conceptual Approches To Legal History, I Global Perspective on Legal History -- (Thomas Duve ed.; Max Planck Institute for European Legal History 2013). Forthcoming.

This article is a preliminary case study of legal and normative entanglement in Spanish West Florida — which stretched across the Gulf Coast of present-day Louisiana, Mississippi, Alabama, and Florida — between 1803-1810. Between the time of the Louisiana Purchase (1803) and the annexation of Westernmost part of West Florida by the United States (1810), the laws and norms of the Territory criss-crossed in various ways those of Spain and the United States. Indeed, the territory was, in turn, French, British, and Spanish before being annexed, in part, by the Americans. For the period under study here, and decades before, its settlers were largely Anglophone, while its laws were a variant of the Spanish colonial ius commune. West Florida had an especially close relationship with the area that would become the new American Territory of Orleans (1805), especially the city of New Orleans. Carved out of the vast Louisiana Territory purchased from France, the Territory of Orleans had its own complex history. Its population was still largely Francophone. In its first decade, its laws were already a gumbo of continental and Anglo-American ingredients. Together, the two territories sat at the precipice of the modern nation-state, of nationalism and popular sovereignty, of legal positivism and legal formalism. In both territories, the diffusion — direct and indirect, formal and informal, ongoing and sporadic — of the various laws and norms of natives and newcomers created intricate legal and normative hybrids.

Download the essay from SSRN at the link.

Mr. Mom

Beth Burkstrand-Reid, University of Nebraska, Lincoln, College of Law, has published Dirty Harry Meets Dirty Diapers: Masculinities, At-Home Fathers, and Making the Law Work for Families, in volume 22 of the Texas Journal of Women and the Law (2012). Here is the abstract.

Who is the 'man'? Implicit in this question is whether the man at issue demonstrates traits traditionally associated with masculinity: traits such as power, rejecting all things associated with being female, aggression, and being the family breadwinner. If a man, then, abandons paid work and stays at home full time with his children, is he still a 'man' as typically defined? The answer to this question bears both on whether families are truly evolving away from the traditional, gendered construct that places men as family breadwinners and women as caregivers and whether work-family balance law meets the needs of these - and all - families.
This article analyzes 425 media stories about at-home fathers written over an eight-year period. Specifically, it looks at whether these fathers accept or reject socially constructed notions of masculinity. The results suggest that some at-home fathers adapt their behavior in ways that allow them to function as primary caregivers while keeping their masculinity intact. As masculinity appears to be salient even to gender-subversive fathers, understanding these adaptive strategies is important to making work-family balance law more responsive to all fathers.
Download the article from SSRN at the link. 

March 22, 2013

Female Judges On TV

Greta Olson, Justus-Liebig-Univeristy Giessen, is publishing Intersections of Gender and Legal Culture in Two Women Judge Shows: Judge Judy and Richterin Barbara Salesch, in Contemporary Gender Relations and Changes in Legal Cultures (Hanne Petersen, Jose Maria Lorenzo Villaverde, and Ingrid Lund-Andersen, eds., Copenhagen: DJOF, forthcoming).

This essay departs from the thesis that the connections between legal culture and gender have not yet been adequately addressed or theorized. Whereas a lively debate has ensued about the meaning and applications of Lawrence M. Friedman’s introduction of the concept of legal culture as a prism for scrutinizing a given socio-legal cohort, relatively little attention has been given to the question of how legal cultures are affected by categories of difference, including those of gender, ethnicity, class, disability, and age. By attending to the gender work performed by two ‘reality’ women judge shows, one US American and one German, this essay aims to further the conversation about how gender interacts with other categories of identity in legal settings.
The full text is not available from SSRN. 

March 21, 2013

Communicating Scientific and Technical Information In Court Effectively

Jonathan J. Koehler, Northwestern University School of Law, is publishing Linguistic Confusion in Court: Evidence from the Forensic Sciences, in the Journal of Law and Policy for 2013. Here is the abstract.

This paper, which was presented at the Authorship Attribution Workshop at Brooklyn Law School, addresses issues related to how scientific and technical information should and should not be communicated in court. This issue has special relevance for authorship attribution testimony and forensic linguistics more generally. Because confusion in the DNA and fingerprint areas has been documented and is relatively common, the paper focus largely on linguistic problems in DNA and fingerprint expert testimony in hopes that forensic linguists can avoid the testimonial traps and errors that plague these forensic scientists. Section I examines DNA match statistics and describes the confusion that legal actors experience when dealing with conditional probabilities. Section II examines statistical inverse errors in the 2010 U.S. Supreme Court case McDaniel v. Brown. Section III examines a seductive, but faulty, statistical assumption that commonly arises in paternity cases. Section IV examines the role of error rates in forensic sciences and concludes that identifying those error rates is particularly important in fields that rely on highly discriminating statistical techniques. Section V offers an illustration of the crucial role ill-defined language can play in a legal proceeding. Standard and precise terms are recommended. The paper concludes with a section identifying implications for the forensic linguistics and authorship attribution communities. This paper is forthcoming in the Journal of Law and Policy.
Download the article from SSRN at the link. 

March 20, 2013

Legal Education and the Value of Comparative Law

Christopher L. Blakesley, University of Nevada, Las Vegas, School of Law, is publishing Law, Language, Crime, and Culture: The Value and Risks of Comparative Law, forthcoming in volume 49 of the Criminal Law Bulletin. Here is the abstract.

Words, language, culture, and literature are so important to us human beings that it should come as little surprise that they are part of our law. This article considers language and law in general with a focus on issues of criminal justice, both domestic and international. I examine how and why comparative law is valuable in a criminal procedure course, and generally for domestic and international criminal justice. My examination begins by looking back to our common roots in crime, punishment, and expiation, with a special focus on the role of torture and its impact on current criminal justice systems.
Comparative law also serves as a springboard from which to ponder law and philosophy in the context of a basic or advanced criminal procedure course. International criminal courts provide a useful example of the value and challenges of comparative law because they are actually experiments in mixing legal systems and procedures as they function in the arena of international law. Although wholesale or simplistic borrowing is wrong and often harmful, carefully comparing how disparate systems resolve similar problems is most helpful. To elucidate this, I use the examples of “verdict” and “to represent.” They look the same on paper, but manifest quite differently in practice in America and in Europe — prime examples of why comparative analysis can be so illuminating.
 It should not be surprising that comparative analysis is crucial to courses or parts of courses in international or transnational criminal law, as functionally, those are mixed systems — requiring a mixture of international law and domestic law or of international law and that of two or more domestic legal systems. This is especially so in international law, which functions as a mixed jurisdiction essentially comprised of Romano-Germanic and Common Law elements and approaches. Those who understand and can work with both the Romano-Germanic and the Common Law systems will be more able to understand the nuances of international law, its methods, analytical style, and sources. This will help them succeed in practice, scholarship and teaching.
This article and the benefits of comparative analysis apply to the study of most subjects in any legal system. My points apply to practitioners, students, policy makers, judges, human rights activists, and many more professions, especially as the world shrinks. Comparative analysis of the sort I suggest herein provides a deeper understanding of the subject, in addition to some understanding of foreign systems. Law is at least partially a form of language; it arises from the culture and language of the various nations and peoples of the world. Comparative study is more than a leisure activity. It provides insight into law (even one’s own, in its deepest cultural sense) and a more transparent prism through which to understand law, culture, and language, including one’s own law, culture, and language, acting like a perfect prism through which we perceive not merely a white light (a country’s legal system), but all the colors that are essential parts (culture and language) of that white light. Revealing those colors — those essential parts — allows us to analyze and compare them and gain a far deeper understanding of a country’s legal system.
To be sure, law is more than just language, but its essence has many of the characteristics and fullness, including the cultural imprint, that a language has. Perhaps, too, there is a spiritual or cosmological element to law, language, and scholarship. I use the term "language" not only its usual sense of the words we use to speak and write, but also as a metaphor for law as language which includes all the cultural depth that imbues language with its soul or spirit.
Download the article from SSRN at the link. 

Thinking About Law

Hanoch Dagan, Tel Aviv University Buchmann Faculty of Law, has published Law as an Academic Discipline. Here is the abstract.

Is law an autonomous academic discipline, distinct and isolated from neighboring fields? Or is it merely an object of academic research that borrows its conceptual framework from the humanities or the social sciences? The choice between these two alternatives — and a possible third, middle position — is important both in itself and as the foundation of a critical analysis of specific institutional arrangements concerning such issues as professional associations, specialized journals, and, most notably, advanced legal education. This essay investigates the two extreme alternatives of autonomy and assimilation, and offers a preliminary account of a midway position, claiming that relevant lessons from the social sciences and the humanities are always potentially relevant to law but never exhaust the theoretical inquiry of it.
Past as well as current theories of law’s autonomy do not fully account for the necessary extra-doctrinal underpinnings of legal materials, nor do they sufficiently appreciate the justificatory burden entailed by the prospective effects of every significant legal pronouncement. These shortcomings, however, do not imply the collapse of law as an academic enterprise robust enough to justify a separate category. Using the theories and methods of other disciplines definitely enriches our understanding of law, but these helpful exercises never suffice because they do not pay appropriate attention to the nature of law as a set of coercive normative institutions and, furthermore, tend to fragment rather than synthesize the interdisciplinary lessons of law. Legal theory compensates for both these limitations by focusing on the work of society’s coercive normative institutions and through its synthetic character.
Legal theory studies the traditions of these institutions and the craft typical of their members, while continuously challenging their outputs by demonstrating their contingency and testing their desirability. When performing these tasks, legal theory necessarily resorts to law’s neighboring disciplines. At its best, however, legal theory is more than a sophisticated synthesis of relevant insights from these friendly neighbors, because legal theory is consciously reflective on persistent jurisprudential questions regarding the nature of law, notably the relationship between law’s normativity and its coerciveness, given law’s institutional and structural characteristics.
Download the paper from SSRN at the link. 

Mayor To Judges: Watch Movies and Learn Your Craft

Huang Qifan, mayor of the Chinese city of Chongquig, says judges should look to Hollywood films for assistance in making judicial determinations. During a panel discussion at the National People's Conference in Beijing on March 18, the mayor noted that the heroes of action movies represent good, which wins out over evil. A visceral example of the reach of popular culture into the bastions of power. More here from the Hollywood Reporter.

March 16, 2013

The Creative Judiciary

Google's Scholar Blog offers up some links to some entertainingly written court cases, including Rimes v. Curb Records, "written as a series of songs to be sung by Rimes," and Pennsylvania v. Dunlap, delivered in the style of Raymond Chandler. Hooray for judges with a sense of humor.

March 14, 2013

The Pope On the Screen

A day after the Catholic Church welcomed Cardinal Jorge Bergoglio as Pope Francis, the Hollywood Reporter offers us this look at famous fictional popes. One commenter points out that it omits two legendary actors as two legendary Pontiffs: Rex Harrison as Julius II in The Agony and the Ecstacy and Sir John Gielgud as Pius XII in The Scarlet and the Black. I note that it also omits the wonderful Sir Alec Guinness as Innocent III in Brother Sun, Sister Moon, and the iconic Peter O"Toole as Paul III in the Showtime series The Tudors. Which pop culture representations of the Bishop of Rome are your  favorites?

March 12, 2013

Shakespeare's Lessons On Law

Harold Anthony Lloyd, Wake Forest Univesrity School of Law, has published Let's Skill All the Lawyers: Shakespearean Lessons on the Nature of Law, at 11 Vera Lex 33 (2010). Here is the abstract.
Shakespeare's works present intriguing explorations of law and legal theory. They help demonstrate the flaws in command-theory positivism, natural law theory and prediction theory accounts of the law. This is a simultaneously-published abbreviated version of a longer article published in Acta Iuridica Olomucensia in 2010.
Download the article from SSRN at the link. 

Dostoyevsky's Legacy

Brian Christopher Jones sends me this post from the blog Misleading Law of the Week. It discusses the Crime and Punishment (Scotland) Act, 1997. Dr. Jones points out that the name of the Act recalls the title of Fyodor Dostoyevsky's classic work Crime and Punishment. Notes Dr. Jones:

When Fyodor Dostoyevsky penned his classic text Crime and Punishment in 1866, he probably never thought that its title would be attached to pieces of legislation or be so culturally prevalent. Over a century later, however, the Westminster Parliament enacted the Crime and Punishment (Scotland) Act 1997, thus inscribing the provocative name of the author's novel into the UK statute book. While the phrase "crime and punishment" has become ubiquitous in popular culture throughout the years, placing it as the title of an official piece of legislation is much different than putting the label on a video game or as the title to a Dawson's Creek episode...or, so it would seem. 

March 7, 2013

Thomas Nast's Cartoons

Renee Lettow Lerner, George Washington University Law School, has published Thomas Nast's Crusading Legal Cartoons, at 2011 Green Bag Almanac 59-78 (2011). Here is the abstract.
The cartoonist Thomas Nast (1840-1902) was in his heyday a political institution, with each of his pictures helping to form public opinion. His influence reached its height in the late 1860s and early 1870s with his relentless caricatures of Boss Tweed and the Tammany Hall Ring in New York City. One part of Nast’s work not often highlighted but as brilliant as the rest is his legal cartoons. Nast’s best work was done with high moral zeal, and his satire of lawyers and the legal system was no exception. His attacks grew out of frustration with the ineffectiveness of legal remedies against the Ring. He was especially incensed that prominent lawyers such as David Dudley Field not only were willing to represent members of the Ring, but could cleverly exploit legal technicalities of their own making to win advantage. Nast excoriated the corruption and bribery of the bench by the Ring, and also, more generally, the adversarial system as it was developing in America.
Download the article from SSRN at the link. 

March 6, 2013

Fun With Tax Laws?

From the Yale Law Library: an exhibit of the work of  Joseph Hémard (1880-1961), who managed to turn out a lot of interesting stuff, including, yes, illustrations for a tax code, now in Yale's Law Library collection. Mull over that on April 15th.

"The Wire" As a Critique of the U.S. Political System

John Denvir, University of San Francisco School of Law, has published Watching Television Can Change the World: "The Wire" as Critique, Part I.  Here is the abstract.

Popular culture can have political impact. "The Wire" is not only engrossing melodrama; it also tells a compelling story of how and why the American political system fails us. Because a television series like "The Wire" not only appeals to a much broader audience than traditional political arguments, but also transforms abstractions into concrete images aimed at both our hearts and our minds, it can play a major role in efforts to change the world for the better.
Download the paper from SSRN at the link.