July 29, 2013

Call for Papers: Law and Humanities Institute Conference, Spring 2014

Revealing the Links Between Law and Magic
A Conference Sponsored by the Law and Humanities Law Institute and
Thomas Jefferson School of Law

June 5-6, 2014
Thomas Jefferson School of Law
1155 Island Avenue, San Diego CA 92101

Call For Papers

On June 5 and 6, 2014, the Law and Humanities Institute, New York, New York (USA) and Thomas Jefferson School of Law, San Diego, CA (USA) will sponsor a Conference on Law and Magic.
Law and magic interact in many ways. Not only can the law influence the practice of magic, such as in the areas of freedom of speech and religion and intellectual property; but also magic can influence the law, such as in trial tactics and evidence. In addition, magic illuminates the crossroads of other law and humanities fields, such as the emerging area of law and neuroscience, rhetoric, and law and popular culture. Papers discussing or developing these or any aspect of the relationship between law and magic are welcome, especially those that further an understanding of the theory, underpinnings, and/or philosophy of the field. 
Materials and presentations will be in English. The organizers of the conference are Christine Corcos, Louisiana State University Law Center (christine.corcos@law.lsu.edu) and Julie Cromer Young, Thomas Jefferson School of Law (jcromer@tjsl.edu).

We invite you to submit an abstract of a 20-minute paper that you would like to deliver at the conference. Abstracts should be between 250 and 500 words and sent to Christine Corcos at the email address above accompanied by the author’s brief biographical statement. Please put “Law and Magic Conference June 2014” in the email subject line and submit the abstract and biographical statement no later than November 1, 2013.  We will send notifications regarding acceptance of presentations by February 1, 2014.

If you would like us to consider your paper for publication,  please indicate that in the body of your email.  Conference papers accepted for publication will appear in the Spring 2015 issue of the Thomas Jefferson Law Review.

Please address questions to Christine Corcos at the email address above.

Call For Papers

From Anne Wagner, Editor in Chief, International Journal for the Semiotics of Law:

- The interdisciplinary nature of the journal between law and semiotics.
- The ONLY journal in the world which focuses on the discipline of legal semiotics.
- The interdisciplinary nature of the journal between language and law, jurilinguistics.
- The interdisciplinary nature of the journal between Legal Philosophy and Philosophy of Language
- The International Journal for the Semiotics of Law is an independent entity and the leading international journal in legal semiotics The Journal was first published in 1987.
The International Journal for the Semiotics of Law welcomes submissions, in English or in French, which include semiotic analyses of the law.
Submissions to The International Journal for the Semiotics of Law should ideally critique, apply or otherwise engage with semiotics or related theory and models of analyses, or with rhetoric, history of political and legal discourses, philosophy of language, pragmatics, sociolinguistics, deconstruction and all types of semiotics analyses including visual semiotics. Submissions which reflect on legal philosophy or legal theory in general, hermeneutics, the relation between psychoanalysis and language, the relation between law and literature, as well as the relation between law and aesthetics, will also be considered.
[Full Disclosure: Your blog editor is on the Editorial Board of the IJSL]. 

July 28, 2013

Criminal, Teacher, Businessman

From the July 28th New York Times, A. O. Scott on the true nature  of "Breaking Bad"'s Walter White, and the intersection of his career path with recent events.

July 27, 2013

And the Winners Are...

The ABA Journal, August issue has the annual pop culture feature: this year is devoted to "the 25 Greatest Law Novels." The panel chose, in order, the following novels as numbers 1 through 25:

Harper Lee, To Kill a Mockingbird
Fyodor Dostoevsky, Crime and Punishment
Charles Dickens, Bleak House
Franz Kafka, The Trial
Victor Hugo, Les Miserables
Herman Melville, Billy Budd
Scott Turow, Presumed Innocent
Nathaniel Hawthorne, The Scarlet Letter
Tom Wolfe, Bonfire of the Vanities
Theodore Dreiser, An American Tragedy
John Jay Osborn, The Paper Chase
Herman Melville, Bartleby, the Scrivener
Richard Wright, Native Son
Albert Camus, The Stranger
Charles Dickens, A Tale of Two Cities
John Grisham, A Time To Kill
Herman Wouk, The Caine Mutiny
Zora Neale Hurston, Their Eyes Were Watching God
Leon Uris, QB VII
John Grisham, The Firm
Alexandre Dumas, The Count of Monte Cristo
Margaret Atwood, The Handmaid's Tale
Robert Traver, Anatomy of a Murder
Ayn Rand, The Fountainhead
Walter Van Tilburg Clark, The Oxbow Incident
Jane Gardam, Old Filth

The August issue isn't available online yet, but should be posted soon here.

This list does seem to be heavily U.S.-centric. Which legal novels would be on your "Best 25" list? Some or all of the above? What novels by non-U.S. authors would you choose?

Update: Check out the list here online.

July 23, 2013

Separation of Powers in Eastern European Democracies

Cristina E. Parau, University of Oxford, Department of Politics and International Relations, and J. Wittmeier Bains are publishing Constitutional Designs: Lessons We Can Learn from the Early American Republic in the Romanian Journal of Comparative Law. Here is the abstract.

This article addresses the vexed question of who should have the “last word” in saying what a democratic constitution means in controversies between the Judiciary and the other Branches of government. The aim is to contribute to debates in post-Communist Central and Eastern Europe (CEE), which to date have been dominated by the paradigm of a Constitutional Court (CC) with monopoly power to expound the constitution. This institutional configuration sits uneasily with the separation of powers and checks and balances – shibboleths which are nonetheless poorly understood in CEE. It is believed that the American Founders, who invented these practical mechanisms in their modern and now universally accepted forms, may offer particularly fruitful insights which constitutional designers everywhere could learn from.
Download the full text of the article from SSRN at the link. 

July 22, 2013

Prisoner Games

F. E. Guerra-Pujol, Barry University School of Law & Pontifical Catholic University of Puerto Rico, has published The Parable of the Prisoners. Here is the abstract.

Of the 78 possible strategic games in two-person game theory, one has acquired the most attention, and the most notoriety, from scholars and laymen alike. The so-called “Prisoner’s Dilemma,” or what we prefer to call the “Parable of the Prisoners,” is not only the most famous formal model of conflict and cooperation in the mathematical theory of games; it has also has generated extensive commentary in a wide variety of social sciences and other fields, including psychology, biology, politics, economics, law, and philosophy. In this paper, we shall revisit the origins of this popular parable and review a small but representative sample of this diverse literature, identifying common themes and ideas. We shall also present an opposing parable to show that the dilemma in the Prisoner’s Dilemma is unavoidable and inescapable in the one-shot version of the game, and we shall explain why this parable is more than just a story; it is an exemplar or mathematical “paradigm.”
In summary, this paper is organized as follows: following this brief introduction, Part 2 reconstructs the origins of the Parable of the Prisoners. Part 3 then reviews various versions of the parable and the uses to which this parable has been put. By way of contrast, Part 4 presents a diametrically different model of behavior — the Altruist’s Dilemma — based on a suggestion by Schelling (1968), and Part 5 explains why the original Prisoner’s Dilemma is not just an instructive parable but also a scientific “paradigm.” Part 6 concludes.
Download the paper from SSRN at the link. 

Moses Medelssohn as Theorist of Contract

Helge Dedek, McGill University Faculty of Law, Institute of Comparative Law, has published Duties of Love and Self-Perfection: Moses Mendelssohn's Theory of Contract at 32 Oxford Journal of Legal Studies 713 (2012). Here is the abstract.

In his Doctrine of Right, Immanuel Kant calls Moses Mendelssohn, the towering figure of the German and the Jewish Enlightenment, a ‘Rechtsforscher’ – a legal scholar. Yet not only Kant, but numerous scholars of natural law in the eighteenth and nineteenth centuries, refer to and reflect on the juridical aspects of Mendelssohn’s work, in particular his thoughts on the law of contract. In this paper, I hope to shed some light on this hitherto rather unexplored facet of Mendelssohn’s oeuvre. Mendelssohn develops his theory of contract from the starting point of the officium amoris: the unenforceable ‘duty of love’ to exercise beneficence. Mendelssohn’s theory knows nothing yet of the modern contrast between altruism, distributive justice, and ‘freedom of contract'. By exploring Mendelssohn’s theory, we will, thus, be able to catch a glimpse of the birth pangs of the modern Western discourse on the ‘freedom of contract', which formed the backdrop, as well as the jumping-off point, of the development of a ‘liberal’ will theory of contract. Since this ‘liberal’ model is still the paradigm of how contract is mostly perceived today, Mendelssohn’s theory also exemplifies the possibility of an alternative to our own conceptualizations of contract that inescapably shape the way we think.
Download the article from SSRN at the link. 

Legal Argumentation

Eveline T. Feteris, University of Amsterdam, and Harm Kloosterhuis, Erasmus School of Law, have published Law and Argumentation Theory: Theoretical Approaches to
Legal Justification. Here is the abstract.
In the past thirty years study law and argumentation has become an important interdisciplinary discipline. It draws its data, assumptions and methods from legal theory, legal philosophy, logic, argumentation theory, rhetoric, linguistics, literary theory, philosophy, sociology, and artificial intelligence. Scholars from various traditions have attempted to explain structural features of legal decision-making and justification from different points of view.

One of the main incentives for the growing interest in legal argumentation has to do with changing views on judicial tasks. In modern legal systems a judge not only applies legal rules but also resolves interpretation problems and justifies his doing so in a reasoned decision. Although it is a part of the Rule of Law that legal decisions must be justified, explicit legal norms for this justification can hardly be found. One of the important problems in the study of legal argumentation is the question which standards of soundness the argumentation should meet. Is it enough that the judge mentions the facts of the case and the legal rules, or does he also have to explain why the legal rules are applicable to the concrete case? How can the interpretation of a legal rule be acceptably justified? What, in the context of legal justification, is the relation between legal rules, legal principles and general moral norms and values?
A second important problem is the question how to reconstruct real life argumentation in legal decisions in order to evaluate the justification. For instance when a judge resolves an interpretation problem in deciding a case, he can choose different types of interpretative arguments to justify his decision. Ideally, these arguments are recognizable in the justification of the legal decision. But in practice these arguments are not always presented explicit, clear and well ordered. The critical reader who wants to evaluate the argumentation must therefore solve a number of reconstruction problems in order to evaluate the argumentation.
Legal argumentation-theory has a descriptive and a normative dimension. It is descriptive in the sense that it gives a reconstruction that starts from arguments expressed in legal discourse and it is normative because the reconstruction is related to a model of acceptable justification. Given these two dimensions, five research components can be distinguished. The philosophical component attends to the normative foundation of a theory of legal argumentation. A central question is which criteria of rationality should be used in evaluating legal argumentation. In the theoretical component, models for legal argumentation are developed, in which the structure of legal argument and norms and rules for argument-acceptability are formulated. The reconstruction component shows how to reconstruct real life argumentation within the framework of a theoretical model. This reconstruction forms a basis for the evaluation of arguments. The empirical component investigates the construction and evaluation of arguments in actual legal practice. It establishes in which respects legal practice fits in or conflicts with theoretical models and examines how possible discrepancies might be explained. Finally the practical component considers how various results forwarded by the philosophical, theoretical, reconstruction, and the empirical components might be used in legal practice. Practical applications are methods for improving skills in analyzing, evaluating and writing legal argumentation.
This chapter describes how researchers deal with these questions depending on their different points of view. Ideas about standards of soundness for legal argumentation and methods for reconstruction, developed by influential authors in the field, will be examined. In the sections 2, 3 and 4 we will discuss the three dominant traditions in legal argumentation-theory: the logical, the rhetorical and the dialogical approach. In section 5 we conclude with some questions for the agenda.
Download the full text of the paper from SSRN at the link. 

July 19, 2013

History of Some Principles of the German Criminal Law

Markus D. Dubber, University of Toronto, Faculty of Law, has published Ultima Ratio as Caveat Dominus: Legal Principles, Police Maxims, and the Critical Analysis of Law. Here is the abstract.

A comparative and historical analysis of the so-called ultima ratio principle reveals that, despite its Latinate veneer, it is neither ancient nor universal, but a recent addition to the German criminal law canon. Upon further inquiry, ultima ratio also turns out to be ill-defined, undermotivated, and toothless, a fundamental legal principle and distinctive feature of criminal law honored in its ubiquitous breach. In the end, the iron legal principle of ultima ratio may appear more like the flexible police maxim of caveat dominus. Its frequent invocation suggests the need to reconceive legal science as a critical analysis of law in general, and of law's supposed principles in particular. 
Download the full text of the paper from SSRN at the link. 

Regulating Sex Workers In Reconstruction New Orleans

Simon Stern of the University of Toronto notes that Elizabeth Parish Smith has published "In a Bar Room Called the 'Fifteen Amendment'": Reconstruction and the Women of New Orleans's Demimonde," 112 South Atlantic Quarterly 473 (2013). 

Here is the abstract.

This essay examines the experiences of three women—one Creole, one black, one white—in New Orleans’s Reconstruction-era demimonde. Enacted just months after the end of the Civil War and surviving in various forms for fifty-two years, a regulatory system governed the sex trade in this, the largest and most cosmopolitan city of the former Confederacy. Postwar regulation made no racial distinctions among women in the trade, and prostitutes’ lives were thus often remarkably similar. Women worked and resided in the same parts of town, even on the same notorious block; faced similarly explosive, dangerous bursts of violence; and exploited the physical intimacy of their work to steal from clients.
In large measure due to their similar legal treatment under regulation, many prostitutes shared W. E. B. Du Bois’s common “economic condition and destiny” across racial lines. Nevertheless, Du Bois uses prostitution in Black Reconstruction as a rhetorical device representing capitalism’s moral corruption, not as a practice affecting real women’s lives. Reading the experiences of three New Orleans prostitutes against the larger racial and economic politics of the period allows us to see how some of the most radical and far-reaching changes of Reconstruction occurred among women living at the law’s edges.

    July 15, 2013

    Life Is Plastic, It's Fantastic

    Rebecca Tushnet, Georgetown University Law Center, has published Make Me Walk, Make Me Talk, Do Whatever You Please: Barbie and Exceptions, in Intellectual Property at the Edge (Rochelle Dreyfuss & Jane Ginsburg eds., 2013). Here is the abstract.

    Barbie represents an aspiration to an ideal and also a never-ending mutability. Barbie is the perfect woman, and she is also grotesque, plasticized hyperreality, presenting a femininity exaggerated to the point of caricature. Barbie’s marketplace success, combined with (and likely related to) her overlapping and contradictory meanings, also allow her to embody some key exceptions to copyright and trademark law. Though Mattel’s lawsuits were not responsible for the initial recognition of those exceptions, they illuminate key principles and contrasts in American law. Mattel attempted to use both copyright and trademark to control the meaning of Barbie, reflecting a trend towards such overlapping claims. In order to ensure that their combined scope is no greater than the sum of their parts, both trademark and copyright defenses ought to be considered together. The Barbie cases highlight the problem that overlaps between the two regimes can challenge the very idea of IP boundaries, unless robust defenses exist against overclaiming. 
    Download the full text of the essay from SSRN at the link. 

    Law and Society Association: Early Information About the 2014 Annual Meeting

    From the Law and Society Association:

    We are excited to announce early information about the Law and Society Association 2014 Annual Meeting in Minneapolis, May 29 – June 1.  We have many changes and new features this year, including:
     ·       Earlier deadlines
    ·       New submission software
    ·       New “Salon” sessions
    ·       New process for Author Meets Reader sessions
    ·       CRN session protocols
     2014 is also the 50th Anniversary of the Law and Society Association!  Many special events are planned, and we believe this will be an exceptional conference.
     All current and future information about the Annual Meeting will be located at http://www.lawandsociety.org/minneapolis2014/Minneapolis2014.html, so bookmark and visit often!  We will update the information as it becomes available.
     Now is the time to start thinking about your paper or session submission so you will be ready by the new deadline. Details about all the new features will appear in the Call for Papers in August.

    Assessing Lynn White's Arguments Forty Years On

    John Copeland Nagle, Notre Dame Law School, has published What Hath Lynn White Wrought? at 2 Fare Forward 44 (2012). Here is the abstract.

    Lynn White’s 1967 article on “The Historical Roots of Our Ecologic Crisis” famously blamed Christianity for modern environmental problems. White’s historical analysis viewed Christianity for cultivating a dismissive view toward nature and for embracing technology in a way that resulted in unchecked pollution and extinctions. Since White wrote his article, Christian scholars have accepted the challenge that White’s diagnosis presented. Other nations, perhaps most notably China, have experienced crippling environmental destruction even in the absence of a legacy of Christian thought. More positively, White’s thesis has encouraged a generation of scholars to explore the positive aspects of Christian thought for environmental policy. 
    Download the article from SSRN at the link. 

    A New Book On Comparative Law

    Vivian Grosswald Curran, University of Pittsburgh School of Law, has published Book Review: Gilles Cuniberti, Grands Systèmes De Droit Contemporains (2d ed., L.G.D.J., 2011) at 61 American Journal of Comparative Law (2013). Here is the abstract.

    Professor Cuniberti’s book instructs and engages. He has successfully rendered the pluralism of law through a wealth of information about governments, cultures, religions and judicial systems.
    Download the full text of the review from SSRN at the link. 

    Starring Fnu Lnu

    When the criminal justice system uses an acronym to refer to a defendant, sometimes not everyone gets the memo. The New York Times' Benjamin Weiser explains further, noting that at least one playwright used one acronym (Fnu Lnu for "first name unknown, last name unknown) as the inspiration for a work).

    July 10, 2013

    Interpreting Guantanamo

    The New England Journal on Criminal and Civil Confinement has published the proceedings of a fall play and panel discussion and spring symposium, all discussing the US government's policies at Guantanamo since 9/11. Michael Meltsner, one of the nation’s leading authorities on capital punishment, wrote the play, In Our Name, and Victoria Marsh, Company One Boston, directed it. The symposium proceedings include contributions by Victor Hansen, Joseph Hutson, Bradley Wendel and Elizabeth Wilson.  Here is a link to more information about the proceedings.

    The Sweet Sounds of Justice

    From NPR: news that a composer/lawyer has put the philosophical iconic battle between Justices Scalia and Ginsburg to music. Derrick Wang, who holds a Masters in Music from Yale, and won a BMI Student Composer Award in 2010, finds the court opinions of the two Justices are, well, lyrical. Mr. Wang's opera, called Scalia/Ginsburg, casts Justice Ginsburg, appropriately enough, as a soprano, and Justice Scalia as a tenor. Somehow I was "ear" picturing him as a baritone. Or a bass. Maybe I've been listening to Don Carlo too much. More about Mr. Wang here.

    July 8, 2013

    Conference on Law and Religion, University of Virginia Law School and College of William and Mary, August 21-23

    From Elizabeth Clark, Associate Professor of Law, Brigham Young School of Law:

    The International Consortium for Law and Religion Studies is pleased to announce its Third Biannual Conference, "Religion, Democracy,and Equality," to be held August 21-23 at the University of Virginia Law School and the College of William and Mary.
     The conference will feature a keynote address by U.N. Special Rapporteur on Freedom of Religion or Belief, Heiner Bielefeldt, who is also the Chair of Human Rights and Human Rights Policy at the University of Erlangen, Germany.  Speakers will include over 70 experts from  25 countries.
     Plenary topics and speakers include:
    Religious Pluralism and Treatment of Religious Minorities
    • Asher Maoz (Peres Academic Center Law School)
    • Ayelet Shachar (University of Toronto) (invited)
    • John Witte Jr. (Center for the Study of Law and Religion, Emory)
    • Angela Banks (William & Mary)
    Hate Speech, Hate Crimes, and Religious Minorities
    • Agnes Callamard (Article 19)
    • Toby Mendel (Centre for Law and Democracy, Canada)
    • Mohammed Saeed Eltayeb (Qatari Ministry of Foreign Affairs)
    • Michael O'Flaherty (Irish Centre for Human Rights, National University of Ireland)
    • Robert C. Post (Yale)
    • Jeroen Temperman (Erasmus University Rotterdam, the Netherlands)
    Religion and Gender: Same-Sex Marriage
    • Rex Ahdar (University of Otago, New Zealand)
    • Ursula Basset (Catholic Pontifical University, Argentina)
    • Douglas Laycock (University of Virginia)
    • Renata Uitz (Central European University, Hungary)
    • Kent Greenawalt (Columbia) 
    Religion and Anti-Discrimination Norms
    • Katayoun Alidadi (Catholic University of Leuven, Belgium)
    • Carmen Dominguez Hidalgo (Pontifical University of Chile)
    • Andrew Koppleman (Northwestern)
    • Lawrence Sager (University of Texas)
    • Eiichiro Takahata (Nihon University, Japan)
    A $50 discount for early registration for the conference is available through July 10.  A registration fee of $250 covers all conference meals and transportation.  A discount of $100 is available for ICLARS members.  Click here to join ICLARS.  Registration closes August 1. Click here to register for the conference.  A group rate has been negotiated at the Hilton Garden Inn in downtown Richmond.  Click here to book a room at the conference rate.

    July 3, 2013

    Happy Birthday, Franz Kafka

    The July 3, 2013 Google doodle is a tribute to Franz Kafka's "Metamorphosis": see here. Kafka's work is shot through with legal themes. Below, a quick and dirty bibliography.

    Glen, Patrick J., The Deconstruction and Reification of Law in Franz Kafka's "Before the Law" and The Trial
    Glen, Patrick J., Franz Kafka, Lawrence Joseph, and the Possibilities of Jurisprudential Literature
    Kafka, Franz, The New Attorney
    Kirchberger, Lida, Franz Kafka's Use of Law In Fiction (Peter Lang Publishing, 1986).
    Teubner, Gunther, The Literature Before It Is Law

    The Kafka Project

    July 2, 2013

    Throwing the Game?

    Ronald J. Rychlak, University of Mississippi School of Law, has published Gambling with the Bronx Bombers: Betting on, Against, and with the Yankees.
    Here is the abstract.

    The New York Yankees, arguably the most hallowed name in all of professional sports, has probably had more money wagered on the outcome of its games than any other team in any sport. Although few people today may be aware of it, the team itself has a long history of association with gamblers and gambling. The first owners of the Yankees were notorious gamblers; the team’s first captain was indicted in the 1919 "Black Sox" scandal; one Yankees’ pitcher was suspected of having thrown another Series game; one owner had ties to underworld figures in Las Vegas; another owner was suspended for his dealings with a known gambler; and one of the most beloved Yankees of all time was barred from baseball due to his association with a casino. Additionally, it has been suggested that the Yankees’ threat of moving to New Jersey in the mid-1990s was linked to New York State authorizing gambling.
    Download the full text of the paper from SSRN at the link.