October 31, 2014

And Next Comes Verona: An International Conference On Fables of the Law

The Department of Foreign Languages and Literatures, the School of Law, and AIDEL (Associazione Italiana Diritto e Letteratura) are sponsoring an International Conference, Fables of the Law, November 12-14, in Verona. There are so many fascinating papers listed to be presented: I'll pick just three to mention here: Fable, Fiction, Truth? What Does Literature Know About Law? (Julia Chrystossalis), Witches and Kings: James I and His Jurisdiction Over Magic at the Root of the Modern "Demonology of Sovereignty," (Pier Giuseppe Monateri), and Earth Jurisprudence and the Myth of Gaia (Valentina Adami).

Call For Papers, Law's Pluralities, May 6-8, 2015

From Daniela Carpi, University of Verona, an announcement of a call for papers for the conference, Law's Pluralities, to be held May 6-8, 2015.

Here's more about the conference from the website.

In May 2015 the conference “Law’s Pluralities” will take place at Justus Liebig University Giessen/Germany. In a series of keynote presentations by experts and in panel sessions and discussions, as well as in an exhibition it will explore cultural constructions of law. We invite academic contributions in the conference languages English and German.
The conference and exhibition is organized at Justus Liebig University Giessen by the International Graduate Centre for the Study of Culture (GCSC) in cooperation with the  Department of English, the Rudolf-von-Jhering Institute, and in cooperation with the Neue Giessener Kunstverein. Contact: lawspluralities@gcsc.uni-giessen.de.

Brains Eating Themselves

The Chronicle of Higher Education has a good article today at its website on the links among zombie studies, navel gazing, and well, the inevitable. Link here.

A New Blog and a New Book of Interest

John Denvir, Research Professor of Law at University of San Francisco Law School, has launched a new blog, Guile Is Good, in conjunction with his new book, Guile Is Good (available through Amazon in both paperback and Kindle versions). Here's an excerpt from the book's introduction:

I want to tell the story of how lawyer creativity and craft shape the world we live in. Since humor often reveals truths that more serious talk misses, let me start with a lawyer joke that encapsulates my thesis.
A university search committee is interviewing candidates for the presidency of the university. One candidate is a mathematician, another a sociologist, and the third a lawyer. At the end of each interview, one member of the committee throws in a final question: “Excuse me, but can you tell us how much is two plus two?”
The mathematician responds, “That is a really complex question, but for present purposes we can say that if you take an abstract two and add another abstract two, you get an abstract four.” The questioner thanks him for his answer.
The sociologist is asked the same question at the end of her interview. She replies that “this is an empirical question that requires very careful collection and analysis of data, but roughly the range is from three to five with a mean of about four.” The questioner thanks her for her answer.
As he is about to leave the interview room the lawyer is also asked, “How much is two and two?” The lawyer slowly turns around, approaches the committee, and inquires in a soft voice, “How much do you want it to be?”
The lawyer gets the job.
The punch line anticipates the thesis of this small book—the public respect and fear lawyers because they sense we use our creativity and craft (and craftiness) to shape the world. As lawyers, we should take great pride in the power our skills provide us and think carefully about how we choose to employ them.
Professor Denvir is also the author of Legal Reelism: Movies as Legal Texts (University of Illinois Press, 1996) and Freeing Speech: The Constitutional War Over National Security (New York University Press, 2012).

October 29, 2014

Full U.S. Breakfast

Ross E. Davies, George Mason University School of Law, and The Green Bag, has published Breakfast with the Justices: Networking in the Nineteenth Century at The Green Bag Almanac & Reader 109 (2014). Here is the abstract.

On Thursday, September 15, 1887, the Philadelphia bar hosted a lavish “Breakfast to the Justices of the Supreme Court of the United States” in that city’s American Academy of Music building. It was the first of a series of events — parades, ceremonies, speeches, and so on — celebrating the centennial of the Constitution of the United States. Some, like the “Breakfast to the Justices,” were by invitation only. Others were open to the public and attracted large crowds — the biggest were probably the “Civic and Industrial Procession” on September 15 and the “Memorial Day Ceremonies in Independence Square” on September 17. All those big events, both the private and the public, surely were exciting at the time and merit further study today. But the focus of this little essay is elsewhere — on a pair of small but instructive (and perhaps also amusing) aspects of the inner workings of the “Breakfast to the Justices.”
Download the text from SSRN at the link. 

October 28, 2014

Controversy Over Metropolitan Opera Presentation of "The Death of Klinghoffer"

The Metropolitan Opera has moved ahead with a presentation of John Adams' opera The Death of Klinghoffer despite many protests that the work glorifies anti-Semitism. Here's an account from the New York Times. The New Yorker first covered such objections back in June. Here's a link to the Met website for the piece. Here's a review from the New Yorker.

Leon Klinghoffer was murdered by Palestinian terrorists during a hijacking in 1985 aboard the cruise ship the Achille Lauro. The terrorists forced two crew members to throw his body overboard in the waters off Syria. The Syrians eventually recovered his body and returned it to the United States.

A DVD of The Death of Klinghoffer is available from Decca. Singers include Sanford Sylvan, Christopher Maltman, and Yvonne Howard. The composer conducts the London Symphony Orchestra.

The story has also been filmed as Voyage of Terror: The Achille Lauro Affair, starring Burt Lancaster and Eva Marie Saint (1990).

On the events during and after the hijacking see

Michael K. Bohn, The Achille Lauro Hijacking: Lessons in the Politics and Prejudice of Terrorism (Potomac Books, 2004).

Antonio Cassese, Terrorism, Politics, and Law: The Achille Lauro Affairs (Princeton University Press, 1989).

Literature and Comparative Law

Eric Heinze, Queen Mary University of London, School of Law, is publishing The Literary Model in Comparative Law in the American Journal of Comparative Law. Here is the abstract.

Legal theory, if it is to attain any level of generality, makes difficult, sometimes unacknowledged assumptions about geography and history. Comparative law enters as a corrective. It tempers unwarranted notions about such basic concepts as ‘norm’, ‘practice’, ‘power’, ‘process’, or ‘procedure’. This essay does not propose any systematic method for scrutinising such concepts. It instead examines possible insights offered by a comparative literary model, which can shed some light on the methods of comparative law. Brief examples from Shakespeare, Racine, and Corneille are introduced to identify obstacles of universality and relativism — or rather, of ‘comparative continuity’ and ‘comparative discontinuity’ — as they arise relative to the emergence of the nation state in late 16th and 17th century Western Europe.
Download the full text of the essay from SSRN at the link. 

October 24, 2014

Walter White, Negotiator

Jennifer W. Reynolds, University of Oregon School of Law, is publishing Breaking BATNAs: Negotiation Lessons from Walter White in the New Mexico Law Review. Here is the abstract. 

Walter White could teach us many things: how to read the periodic table; how to destroy a tub with hydrofluoric acid; how to build a battery; how to make poison out of castor beans; how to build a bomb under a wheelchair; how to use the remote control of the car to operate a machine gun; and how to coordinate multiple assassinations of prison informants within thirty seconds of one another. But these are niche skills at best. Is there anything useful we can learn from Walter White?

As it turns out, Walter White can also teach us how to negotiate — or, to put it more precisely, watching Walter White negotiate in Breaking Bad helps us think more clearly about what we are doing when we negotiate. For the student of negotiation, Breaking Bad is an absolute treasure trove, producing an incredibly complex and varied array of bargaining parties and negotiated transactions, week after week. What’s so fascinating about these transactions is that they draw on familiar, foundational negotiation concepts in the service of less familiar, usually illicit ends. Put another way, when we watch Walter White negotiate, we watch a mega-criminal anti-hero implement the same “value-neutral” strategies that we teach lawyers and businesspeople. Learning to negotiate from Walter White, therefore, allows us to engage in an analytical exercise that explores the conventional wisdom around negotiation in a fresh, modern context, while implicating more critical conversations around value neutrality and other normative concerns in negotiation theory and practice.
Breaking Bad ran for five seasons. In this article, I have chosen five negotiations, one from each season, each featuring Walter White. For these five negotiations, I provide close readings that show how the negotiations demonstrate and/or disrupt foundational negotiation concepts or skills. I then suggest some possible takeaways for negotiators and analysts. The article concludes with a brief thought about ethical implications in negotiation theory and practice.
Download the article from SSRN at the link. 

October 23, 2014

The Condemned Woman In Sir Walter Scott's Writings

Erin L. Sheley, George Washington University School of Law, has published Doubled Jeopardy: The Condemned Woman as Historical Relic at 24 Law and Literature 211 (2014). Here is the abstract. 

This article explores how Sir Walter Scott's fictional condemned women serve as relics through which a history of evolving British legal authority becomes present and legible. It argues that Scott's treatment of gender aestheticizes a particular concept of and reaction to the condemned woman in the context of the common law tradition generally. Using the backdrop of eighteenth century penal practice, it also shows how Scott establishes the female condemned body as an object necessarily fixed in time in order to contemplate legal change through a historically controlled process. The first part of the article considers the late eighteenth century movement to abolish the punishment of burning at the stake for women convicted of treason, and the extent to which competing understandings of chivalry reified an entire history of penal practice into the body of the burned woman. The second part argues that the interrelations between archaic practice and evolved norm which characterize the precedent-based common law system are dramatized in the fixed, idealized bodies of Constance de Beverly and Rebecca of York through which Scott acknowledges the implicit need for legal change over time, while simultaneously legitimizing adherence to a chivalric tradition.

Download the article from SSRN at the link. 

George IV's "Great Matter"

Erin L. Sheley, George Washington University School of Law, is publishing Adultery, Criminality, and the Myth of English Sovereignty in volume 11 of Law, Culture, and the Humanities. Here is the abstract.

This article argues that in Britain over the course of the eighteenth and nineteenth centuries, the understanding of adultery as a tort was complicated by an accompanying discourse of what I will call “quasi-criminality.” Specifically — while formally trivialized — adultery remained linked to a threat to British kingship. The tension between the weight of relevant monarchical history and the absence of contemporary criminal enforcement created a new cultural narrative about adultery which attempted, itself, to serve a penal function. Examining the development of this discourse alongside the relevant law illuminates the complex social process through which public and private wrongs become distinguished — or conflated.
Download the article from SSRN at the link. 

October 22, 2014

Testamentary Manumission In New Jersey in the Early Republic

Stuart Gold, Rutgers, the State University of New Jersey, has published The 'Gift' of Liberty: Testamentary Manumission in New Jersey - 1791-1805 in volume 15 of Rutgers Race and the Law Review (2014). Here is the abstract.

This paper explores the process of manumission by will in Early Republic New Jersey between 1791 and 1805. The paper reviews the legal mechanisms available for manumission in New Jersey during this period, and places New Jersey's manumission process in context with its sister states of New York and Pennsylvania. The primary focus of the paper is a detailed analysis of the various schemes of manumission employed by testators, as well as geographical and gender differences in detecting patterns for manumission.
Download the article from SSRN at the link.

Stories and Rules

Stephen Paskey, State University of New York, Buffalo, Law School, has published Law Is Made of Stories: Erasing the False Dichotomy between Stories and Legal Rules in volume 11 of Legal Communication & Rhetoric (2014). Here is the abstract.

When lawyers think of legal analysis, they think chiefly of logic and reason. Stories are secondary. As Michael Smith explains, our legal system “is not founded on narrative reasoning” but on “a commitment to the rule of law.” The article suggests that this dichotomy between “rule-based reasoning” and “narrative reasoning” is false, and that narrative and stories are central to legal reasoning, including rule-based reasoning. In doing so, the article uses literary narrative theory to show that every governing legal rule has the structure of a “stock story”: the elements of the rule correspond to elements of a story. It follows that lawyers do not rely on stories simply because they are persuasive. They do so because a story is literally embedded in the structure of governing rules, and those rules can be satisfied only by telling a story. Thus, many analytical moves we label “rule-based reasoning” can be understood as a type of narrative reasoning, in which a client’s story is compared to and contrasted with the stock story embedded in the rule.

Download the article from SSRN at the link. 

October 21, 2014

At Cardozo: An Important Discussion on the Holocaust, Genocide, and Human Rights, October 30, 2014

From the Cardozo School of Law:

"On the Implications for Contemporary Law and Legal Scholarship on Vichy and Third Reich Judicial Discourse"

Thursday, October 30, 2014, 6 - 8pm
Benjamin N. Cardozo School of Law
55 Fifth Avenue, Room 102
New York, NY 10003
Please RSVP to cardozophhr@gmail.com
On October 30th, the Holocaust, Genocide and Human Rights (HGHR) Program at Benjamin N. Cardozo School of Law presents a discussion "On the Implications for Contemporary Law and Legal Scholarship of Vichy and Third Reich Judicial Discourse." The event will begin at 6 pm at 55 Fifth Avenue, Room 102. There will be a reception in the lobby following the event.

The discussion will involve close readings of what passed for legal discourse in Vichy France and Nazi Germany, appraising its significance for today's legal scholarship, judges, and interpretive theory. Among specific developments to be discussed are a German court's recent description of circumcision in Jewish ritual as causing "severe physical injury," the relationship of law and morals generally, and the implications of Vichy's legal and academic discourse for the incipient renewal of anti-semitism in France.

The speakers are Prof. Otto Pfersmann, Prof. of Law, Paris-1, Pantheon, Sorbonne, and Prof. Richard Weisberg, Floersheimer Prof. of Constitutional Law and Founding Director, Cardozo Holocaust, Genocide and Human Rights Program. 

Please RSVP to cardozophhr@gmail.com

The Association of American Law Schools Annual Meeting, 2015

From AALS:

Humanities, History and Social Science Programs
at the AALS Annual Meeting,
January 2-5, 2015
Washington, D.C.

The AALS Annual Meeting in Washington, D.C. will include sessions on intersection of law with the humanities, history and social sciences. Renowned legal scholars will lead discussions on the latest scholarship in these areas.  

The 2015 AALS Annual Meeting will be held in Washington, D.C, from Friday, January 2 through Monday, January 5, 2015. Here is a sampling of programs being presented: 
  • Law and the Heroic
  • After the Monuments Men:  Nazi-Era Art, Modern Legal Problems
  • Legislating Belonging
  • Socio-Economics: Doing Good Research That Does Good
  • Extreme Empirical Methods
  • Qualitative and Mixed Methods Research Workshop
  • The Role of History in the Federal Courts Canon
  • How (Not to) Provide Statutory Accommodations for Religion
  • The Role Morality of the Legal Scholar
  • Transgender Equality: Prisons, Workplace, and Academic Institutions
  • The Future of Marriage
  • Working But Poor: Understanding and Confronting the Working Poor Phenomenon
  • Dead Upon Birth: The Inter-Generational Cycle of Thwarted Lives in America's Poorest Neighborhoods
The meeting will also feature screenings of films chosen for their cinematic and legal value. This year's selections are Judgment at Nuremberg (1961), Hot Coffee (2011) and Anita (2013). Professor Anita Hill (Brandeis University Heller School for Social Policy and Management) will participate in a discussion of Anita and there will be commentary and discussion of all three films.

This year's Annual Meeting will feature a space for quiet contemplation.  The AALS Section on Balance in Legal Education plans on scheduling designated times for mindful movement. There will also be materials available on incorporating mindfulness into the classroom and other professional settings.

For more information on these new programs or to register for the Annual Meeting, please click here


October 16, 2014

Call For Papers: Law & Humanities Junior Scholars Workshop, June 8-9, 2015

CALL FOR PAPERS - Law & Humanities Junior Scholar Workshop

Columbia Law School, the University of Southern California Center for Law, History & Culture, UCLA School of Law, and Georgetown University Law School invite submissions for the eleventh meeting of the Law & Humanities Junior Scholar Workshop to be held at Columbia Law School Law in New York City on June 8 & 9, 2015.


The paper competition is open to untenured professors, advanced graduate students, and post-doctoral scholars in law and the humanities; in addition to drawing from numerous humanistic fields, we welcome critical, qualitative work in the social sciences. Based on anonymous evaluation by an interdisciplinary selection committee, between five and ten papers will be chosen for presentation at the June Workshop. At the Workshop, two senior scholars will comment on each paper. Commentators and other Workshop participants will be asked to focus specifically on the strengths and weaknesses of the selected scholarly projects, with respect to subject and methodology. The selected papers will then serve as the basis for a larger conversation among all the participants about the evolving standards by which we judge excellence and creativity in interdisciplinary scholarship, as well as about the nature of interdisciplinarity itself.

Papers should be works-in-progress between 10,000 and 15,000 words in length (including footnotes/endnotes), and must include an abstract of no more than 200 words. A dissertation chapter may be submitted, but we strongly suggest that it be edited so that it stands alone as a piece of work with its own integrity. A paper that has been submitted for publication is eligible so long as it will not be in galley proofs or in print at the time of the Workshop. The selected papers will appear in a special issue of the Legal Scholarship Network; there is no other publication commitment. The Workshop will pay the travel and hotel expenses of authors whose papers are selected for presentation.
Submissions (in Word, no pdf files) will be accepted until January 5, 2015, and should be sent by e-mail to: Center for the Study of Law and
Culture, culture@law.columbia.edu

Please be sure to include your name, institutional affiliation (if any), telephone and e-mail contact information.

For more information contact Cindy Gao, 212.854.0167
or culture@law.columbia.edu, and to see past winners go
to: http://www.law.columbia.edu/center_program/law_culture/lh_workshop.

Katherine Franke
Sarah Barringer Gordon

Ariela Gross
Naomi Mezey

Hilary Schor

Norman Spaulding
Clyde Spillenger
Nomi Stolzenberg


Melville Fuller and the Record of History

Ross E. Davies, George Mason University School of Law; The Green Bag, has published Fixing Fuller's Record: The Green Bag and the U.S. Reports, at 17 Green Bag 2d 451 (Summer 2014). Here is the abstract.

Melville Fuller, Chief Justice of the United States from 1888 to 1910, had a notably "self-effacing nature." Perhaps that is why he did not always push hard to correct errors about himself that appeared in published reports. In retrospect, this seems admirably modest in some contexts and disturbingly irresponsible in others. This article deals first with an example Fuller’s admirable modesty, which it overcomes for the benefit of modern readers. Second, this article examines an instance of Fuller’s converse irresponsibility, and suggests that the Supreme Court can and should officially correct Fuller’s error.
Download the article from SSRN at the link.

October 15, 2014

David Greenglass, Prosecution Witness In Rosenberg Trial, Dies

The New York Times has published an obituary of David Greenglass, the brother of Ethel Rosenberg. Mr. Greenglass provided crucial testimony during the trial of Julius and Ethel Rosenberg that ended in their convictions for conspiracy and espionage. They were executed in 1953. Fifty years later, Mr. Greenglass, who served nearly ten years in prison for his role in the conspiracy, admitted to reporter Sam Roberts that he lied on the witness stand.

Mr. Roberts published a book about Mr. Greenglass and the trial, The Brother: The Untold Story of Atomic Spy David Greenglass and How He Sent His Sister, Ethel Rosenberg, to the Electric Chair  (2001). Other books on the topic include Michael and Robert Meeropol, We Are Your Sons: The Legacy of Ethel and Julius Rosenberg (1975),

The Rosenbergs figure in E. L. Doctorow's novel The Book of Daniel (1971), a fictionalized version of the trial which is based on the Rosenberg trial (filmed as Daniel (1983)), which stars Timothy Hutton, and in Robert Coover's The Public Burning (1977). Ethel Rosenberg appears as a character in Tony Kushner's play Angels in America: Millennium Approaches (1993) (revised 2014).

More about the trial here at Professor Douglas Linder's Famous Trial website.

October 13, 2014

Sing Out, Lucia!

Michela Giorcilli, Stanford University, Department of Economics, and Petra Moser, Stanford University Department of Economics, National Bureau of Economic Research (NBER), have published Copyright and Creativity: Evidence from Italian Opera. Here is the abstract.

This paper exploits variation in the adoption of copyright laws within Italy – as a result of Napoleon’s military campaign – to examine the effects of copyrights on creativity. To measure variation in the quantity and quality of creative output, we have collected detailed data on 2,598 operas that premiered across eight states within Italy between 1770 and 1900. These data indicate that the adoption of copyrights led to a significant increase in the number of new operas premiered per state and year. Moreover, we find that the number of high-quality operas also increased – measured both by their contemporary popularity and by the longevity of operas. By comparison, evidence for a significant effect of copyright extensions is substantially more limited. Data on composers’ places of birth indicate that the adoption of copyrights triggered a shift in patterns of composers’ migration, and helped attract a large number of new composers to states that offered copyrights.
Download the paper from SSRN at the link. 

Shakespeare As a Political, Legal, and Religious Thinker

Robert J. Delahunty, University of St. Thomas School of Law, is publishing The Conscience of a King: Law, Religion, and War in Shakespeare's King Henry V in the Journal of Catholic Legal Studies (2014). Here is the abstract. 

Shakespeare must be considered seriously, not only as a dramatist, but as a major thinker on law, religion and government. His play King Henry V is a sustained and powerful meditation on the interrelationships of all three. In dramatizing Henry's invasion and conquest of France, Shakespeare raises the question of the ends of the polity and the nature of right rulership.

Understanding Shakespeare’s intentions depends on our view of the play's central, charismatic but elusive character, King Henry. Many audiences and critics have fallen under Henry’s spell, conceiving of him as a ‘mirror for Christian kings,’ exemplary for both piety and valor. And it seems that Shakespeare was aware of the depictions of an idealized Christian ruler found in an extensive body of literature, including the influential writings of Erasmus. Other viewers and critics, however, have seen Shakespeare's Henry as a Machiavellian Prince, who instrumentalizes religion, manipulates law, and practices cruelty and deception when the necessities of war and statecraft require them. Both visions of Henry are incomplete: Henry is too Christian to be a Machiavellian but too Machiavellian to be a model Christian king.
A third approach to understanding Shakespeare's Henry is to view him through the prism of Augustine's City of God. But although that approach yields some insights, it too is finally unpersuasive. Augustine simply does not treat of a monarch like Henry: a Christian, not a pagan, but not Christian as a ruler.
Shakespeare's Henry is enigmatic: neither an Erasmian model, nor a Machiavellian one, nor an Augustinian one, fits him well. Shakespeare seems to see more deeply into the nature of rulership than any of his three great predecessors. Like Erasmus but unlike Machiavelli, he fully realizes the horror and uselessness of war, and appreciates the damage that war inflicts even on a victorious State. Like Erasmus but unlike Augustine, he doubts that war is ordinarily just, and he believes that the ruler who sends soldiers into battle is responsible for the damnation of those who die in the sins they commit while fighting. But unlike Erasmus and like Machiavelli, Shakespeare seems to think that the decision for war does not depend solely on the personal qualities of the ruler, but is dictated by the existence of the State. The question Shakespeare does not resolve, however, is whether Machiavelli is right in thinking that after Christianity, a return to the pagan conception of princely virtue is necessary and possible.

Download the article from SSRN at the link. 

Multilingualism and Statutory Interpretation

Lawrence M. Solan, Brooklyn Law School, has published Multilingualism and Morality in Statutory Interpretation, at Language & Law/Linguagem e Direito, Vol. 1, Issue 1 (2014). Here is the abstract. 

This article discusses some of the costs and benefits of multilingual legislation, focusing largely on Canada and the European Union. Courts interpreting these laws must take into account the different language versions, since each version is equally authoritative. Fidelity to the legislature’s will comes with very high stakes in this context, because multilingual legislative systems are most typically a means for recognizing the autonomy of minority groups, which, in exchange, cede some of that autonomy to a higher legal order. Thus, there is a special moral duty to ensure that the laws are construed faithfully at the same time that language barriers make it appear, at least on the surface, that it is more difficult to do so. Moreover, the risk of judges substituting their own values for those of the legislature when there is no single, definitive legal text, appears to become magnified in multilingual settings, creating the risk of decision making that would not stand up to moral scrutiny even in monolingual systems.

This article argues that despite the apparent difficulties inherent in multilingual legislation, it actually reduces uncertainty in meaning by creating additional data points for statutory interpreters to consider. Multilingualism does, however, lead to certain additional problems of ambiguity. These, for the most part, however, are generally resolved fairly easily. It is further argued that the European approach to interpretation, which I call Augustinian Interpretation, is likely to lead to results more faithful to the legislature’s intent than is the standard Canadian approach, called the Shared Meaning Rule. Arguments from the case law, from linguistics and from the philosophy of language are adduced to support these conclusions.
Download the article from SSRN at the link. 

October 8, 2014

Narrative In the Law School Curriculum

Susan Ayres, Texas A&;M University School of Law, has published Using Dramatic Narratives to Teach Domestic Violence. Here is the abstract.

The 2003 call of the ABA for teachers to incorporate domestic violence into the law school curricula remains gravely important today. Domestic violence intersects many areas — from family law, to torts, to criminal law. Along with sexual assault, it is one of the most difficult subjects to teach. Students, like the general public, find it hard to comprehend why a person batters, or why a victim stays with the batterer. While students may learn about domestic violence from case law and scholarly excerpts, the best lessons may be learned through narratives, which provide a window into the reasons for battering and the multi-faceted reasons a victim stays with a batterer. In this article, I describe a teaching approach that incorporates narratives by the award-winning, multi-racial writer, Ai (1947-2010). This valuable approach offers a picture of domestic violence that is more compelling than that of casebooks or statistics, and provides students — as future lawyers — with the ability to respond to clients experiencing domestic violence with greater empathy and understanding.
Download the text from SSRN at the link. 

Originalism Grounded

Harold Anthony Lloyd, Wake Forest University School of Law, has published Plane Meaning and Thought: Real-World Semantics and Fictions of Originalism. Here is the abstract.

This article explores how meaning and thought work in the real-world of human experience. In doing so, it explores five basic planes or levels of such meaning and thought: references, issues, rules, applications of rules, and conclusions. It also explores framing, metaphor, and narrative in constructing such planes or levels of meaning and thought as well as some basic resulting forms of thought. Additionally, it examines original meaning as a cautionary negative example of how real-world meaning and thought do not and cannot work. Given the flexibility of framing involved in the multiple levels of real-world meaning and thought, originalism cannot sustain its claims of greater objectivity when compared to other interpretive approaches.
Download the paper from SSRN at the link. 

October 6, 2014

Engaging With the Work of James Boyd White

Announcement of a new publication from the imprint Maize Books, a division of University of Michigan Press:

Living in a Law Transformed: Encounters with the Works of James Boyd White
Edited by Julen Etxabe and Gary Watt.

From the Editors' Introduction:

In March 2013, the Association for the Study of Law, Culture and the Humanities (ASLCH) convened its annual conference in London. It was the first time that the conference had been held outside the United States, and, with a happy correspondence, it fell in an important anniversary year for a U.S. scholar who has profoundly influenced legal thought and practice far beyond his home horizons. 2013 marks the fortieth anniversary of the publication of James Boyd White’s The Legal Imagination, of which we will shortly say more. 2013 is also, incidentally, the seventy-fifth anniversary of the “publication” of the man himself. The present collection of essays draws together a group of scholars who have gathered in gratitude to the works, wisdom, and personal warmth of Professor James Boyd White. Contributors come from many countries—from The United States, Canada, the Netherlands, Belgium, the United Kingdom, the Basque Country, and New Zealand.

We are delighted that the first contribution to the collection is from Jeanne Gaakeer, who at the 2013 conference joined the roll of distinguished winners of the ASLCH’s annual James Boyd White Award. Many of the contributors to this volume had the pleasure of meeting at the London conference, and for some of us, including one of the editors of this collection, that was the first occasion of their meeting face-to-face with the man himself after several years of correspondence. For other contributors it was a welcome chance to meet again the tutor, colleague, and friend whom they know simply as Jim. Indeed, a very good thing about Jim White is that, thanks to his lack of pretension and the clarity of his communication, students and scholars can know him “simply.” Having said that, it is only through serious attention that we come to appreciate the deep challenges that lie beneath the simple things he has to say about living in the law. It is with that effort of attention, and not only to celebrate amity and anniversaries, that we present this publication of twelve essays.

The main title of our book, Living in a Law Transformed, is intended to remove the artificial barrier that we all too often erect between our life and our work. If we see work in purely metric terms of so-called human resources, as being those hours that we do not devote to love and leisure and all the rest of life, what damage do we do to true human resources? The answer is that we make a wasteland of the world of work, and thereby deaden a huge portion of our lives. Even more dangerous than that, we deaden the lives of the students, clients, and colleagues who meet us in the law. What a difference would it make for those of us who work as jurists, if we were to acknowledge that we (and our clients, colleagues, and students) are bound to live in law? What a difference might it make if we were to bring our life to work and bring our work to life? James Boyd White challenges us to ask such questions as these.

One of the threads that weaves its way through this collection is that an integration of life and law has transformed the contributors’ experience as scholars, students, and teachers, as well as our vision of law. This collection of essays therefore constitutes an invitation to encounter White’s work—and the contributors’ collective experience of their own encounters—as an experience of living in a law transformed. For just as Odysseus had to learn to recognize Ithaca at his return, White invites us to look at the law anew and to learn to recognize it as something like our own true home.

James Boyd White’s The Legal Imagination is widely regarded as the founding document of the modern “law and literature” movement. It is therefore appropriate that this collection should start and move from there. The movement takes us through narrative critique, with special attention to critical readings of law as literature. From there, the collection moves to consider the potential for meaningful experience that is to be found in the spaces and silences that exist within and around text and speech. The next group of chapters engages with extratextual sources; the authors travel with White toward an appreciation of paintings, places, movies, and even a simple stone in a stream. This leads us, finally, to the place of practice, not only in the classroom, the court, or the lawyer’s office, but wherever we live and work. Thus the journey of the book leads to hope of real transformation.

More here. 

The text is free online.

Saul Goodman's Ads

A commercial for Saul Goodman's law firm. The spinoff from Breaking Bad, Better Call Saul, premieres next February.

More serious fun from the creators of the show here.

The Constitutional Era in the Western Hemisphere

Matthew C. Mirow, Florida International University College of Law, has published The Age of Constitutions in the Americas at 32 Law & History Review 229 (2014). Here is the abstract. 

This essay discusses essential elements of the Age of Constitutions in the Americas. These elements are the United States Constitution and state constitutions, English constitutional practices, the French Revolution and the republic constitutions, the Cortes of Cadiz and the Spanish Constitution of 1812, and Haitian independence and the constitutions of the early republic.
Note: This is an Author’s Original version of a full article that appears in Law and History Review published by Cambridge University Press.

Download the text from SSRN at the link. 

October 2, 2014

A New Book From Marianne Constable

Marianne Constable, University of California, Berkeley, has published Our Word Is Our Bond: How Legal Speech Acts (Stanford University Press, 2014). Here's a description of the contents from the publisher's website.

Words can be misspoken, misheard, misunderstood, or misappropriated; they can be inappropriate, inaccurate, dangerous, or wrong. When speech goes wrong, law often steps in as itself a speech act or series of speech acts. Our Word Is Our Bond offers a nuanced approach to language and its interaction and relations with modern law. Marianne Constable argues that, as language, modern law makes claims and hears claims of justice and injustice, which can admittedly go wrong. Constable proposes an alternative to understanding law as a system of rules, or as fundamentally a policy-making and problem-solving tool. Constable introduces and develops insights from Austin, Cavell, Reinach, Nietzsche, Derrida and Heidegger to show how claims of law are performative and passionate utterances or social acts that appeal implicitly to justice.
Our Word Is Our Bond explains that neither law nor justice are what lawyers and judges say, nor what officials and scholars claim they are. However inadequate our law and language may be to the world, Constable argues that we know our world and name our ways of living and being in it through law and language. Justice today, however impossible to define and difficult to determine, depends on relations we have with one another through language and on the ways in which legal speech—the claims and responses that we make to one another in the name of the law—acts.