April 30, 2014

The Posse Comitatus Act and Today's Navy

Mark Nevitt, U. S. Navy Judge Advocate General's Corps, is publishing Unintended Consequences: The Posse Comitatus Act in the Modern Era in the Cardozo Law Review. Here is the abstract.
America was born in revolution. Outraged at numerous abuses by the British crown — to include the conduct of British soldiers in the colonists’ daily lives — Americans declared their independence, creating a new republic with deep suspicions of a standing Army. These suspicions were intensely debated at the time of the nation’s formation and enshrined in the Constitution. But congressional limitations on the role of the military in day-to-day affairs would have to wait. They were not put in place until after the Civil War when southern congressmen successfully co-opted the framers’ earlier concerns of a standing Army and passed a criminal statute — the 1878 Posse Comitatus Act (“PCA”) — that restricted the ability of the Army to be used as a “posse comitatus” to “execute the laws.” Today, the PCA’s history and scope are often misunderstood with continual unintended consequences for today’s modern military that is far removed from the law’s earlier constitutional and statutory origins.

This article addresses a significant unintended consequence in the modern era: the PCA’s peculiar modern application to the Navy. The text of the PCA is silent on the Navy, yet the Department of Defense has determined that the PCA applies to the Navy worldwide. The early civil libertarian concerns that originated with the birth of the republic and at the time of the PCA’s passage are based on concerns over a standing Army. These are fundamentally distinguishable from the Navy, the maritime-based armed force that largely operates on the high seas, far away from America’s geographic borders and removed from its citizenry. The Navy’s mission includes the maintenance of freedom of the seas to include the suppression of piracy. But the DoD’s application of the PCA to the Navy limits its ability to participate in the full array of maritime missions — of continual concern with the rise of maritime terrorism that continually blurs the line between law enforcement and military activities. Building on the Navy example, this article concludes by offering recommendations to remedy this historical incongruity while touching upon other areas — such as the rise of the National Security Agency and the complex modern military organization — where the PCA and associated civil-military relationship need further re-examination.

Download the article from SSRN at the link. 

The History of Riparian Rights In Anglo American Law

David Schorr, Tel Aviv University, Buchmann Faculty of Law, has published Riparian Rights in Lower Canada and Canada East: Inter-Imperial Legal Influences. Here is the abstract. 

The development of the law of riparian rights in the Anglo-American world in the nineteenth century has been analyzed from several points of view, including economic property theory and Marxian legal history. Transnational aspects of the subject have not been neglected, as some have highlighted the transatlantic framework in which this body of doctrine developed, and others have examined the use of Continental, civil law sources by some of the American jurists responsible for that development. Yet the inter-imperial aspect of this story, in particular the meeting of the laws of the British and French Empires, has gone unremarked.
This paper examines the crossed histories of English common law, French civil law, and American law in the jurisprudence of water rights in Lower Canada/Canada East/Quebec in the mid-nineteenth century, and the influence of this jurisprudence on the developing water law of the British Empire.

Download the paper from SSRN at the link. 

April 25, 2014

Call For Papers: AALS Section on Law and the Humanities, January 2015 AALS Annual Meeting

From Charlton Copeland, University of Miami:

Call for Panelists
AALS Section on Law and Humanities
“Law and the Hero”
2015 AALS Annual Meeting
January 2-5, 2015, Washington, D.C.

Law and the Hero.  No, this is not an apt example of an “oxymoron” in the dictionary.  The law has had, and still has, many heroes.  For example, the federal judges in the South who implemented the desegregation mandate of Brown v. Board of Education were, as Jack Bass has written, unlikely heroes who maintained a steadfast commitment to the rule of law despite facing constant political opposition and personal attacks.  Ronald Dworkin argued that judges should aim to be heroes – specifically, like Hercules, acting with superhuman wisdom and patience to, in the words of Eric Posner, “bring order to the Augean stables of our law.”  (Posner did not agree with this view of the judge, arguing that judges should avoid making controversial constitutional decisions in order to allow such decisions to be worked out in the political process.)  Atticus Finch has long been hailed as heroic lawyer, albeit a fictional one, although Malcolm Gladwell has asked whether we should rethink Finch’s heroism.

What qualities define a hero in the law?  What role do heroes play in the law?  How is our thinking about heroism and the law influenced by other disciplines, such as history, literature, and philosophy?  And who are your heroes in the law?  This program will explore these issues with both invited panelists and panelists accepted through this call. 

The AALS Section on Law and Humanities invites your submissions on these questions and any others that touch upon the subject of “Law and the Hero.”  The Section will then select a number of submissions to be presented at the annual meeting in Washington, D.C., in January 2015.

To be considered as a panelist, please submit a statement of interest by Friday, May 9, 2014.  The statement should include a description – two to three 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 a current curriculum vitae. Submit all materials to Professor Rodger Citron, Touro Law Center, via electronic mail at rcitron@tourolaw.edu.

Panelists will be selected by Friday, May 16, 2014. 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.

April 23, 2014

Freedom of Expression and the French Legal System

Robert A Kahn, University of  St. Thomas School of Law (Minnesota), has published Does it Matter How One Opposes Hate Speech Bans? A Critical Commentary on Liberté Pour L’Histoire's Opposition to French Memory Laws as U. of St. Thomas (Minnesota) Legal Studies Research Paper No. 14-16. Here is the abstract.

This paper examines Liberté pour l'Histoire, a group of French historians who led the charge against that nation’s memory laws, in the process raising unique arguments not found elsewhere in the debate over hate speech law. Some of these arguments – such as a focus on how the constitutional structure of the Fifth Republic encouraged memory laws – advance our understanding of the connection between hate speech bans and political institutions. Other arguments, however, are more problematic. In particular, Liberté historians struggle to distinguish the Holocaust (which is illegal to deny) from the Armenian Genocide (which is not). The Liberté historians also quite hostile toward multiculturalism. While this reflects the French culture in which the historians operate, it is normatively quite unappealing. This is especially true given the existence of other, more inclusive European arguments against hate speech regulation, such as those of Danish cartoon publisher Flemming Rose and Maltese Judge Giovanni Bonello. There has to be a better, more inclusive way to oppose French memory laws.
Download the paper from SSRN at the link. 

Law and Literature and Constitutions and Zombies: Where Does the "Oh, My" Come In?

William Baude, University of Chicago Law School, has published Zombie Federalism. Here is the abstract.
The most natural question to ask about zombies and constitutional law is whether zombies are persons within the meaning of the Constitution. But that question turns out to be remarkably difficult. The word "person" appears repeatedly throughout the Constitution, but without any clues about whether it extends to zombies.

What’s the best constitutional solution to this problem? Zombie Federalism. The Constitution does not resolve the question of zombie personhood, so we should understand it to leave that question to state law.
Download the paper at the link.

Have you now developed a taste for zombies? Indulge it by feasting on these articles.

Adam Chodorow, Arizona State University College of Law, Death and Taxes and Zombies, 98 Iowa Law Review 1207 (2013).

The U.S. stands on the precipice of a financial disaster, and Congress has done nothing but bicker. Of course, I refer to the coming day when the undead walk the earth, feasting on the living. A zombie apocalypse will create an urgent need for significant government revenues to protect the living, while at the same time rendering a large portion of the taxpaying public dead or undead. The government’s failure to anticipate or plan for this eventuality could cripple its ability to respond effectively, putting us all at risk.

This article fills a glaring gap in the academic literature by examining how the estate and income tax laws apply to the undead. Beginning with the critical question of whether the undead should be considered dead for estate tax purposes, the article continues on to address income tax issues the undead are likely to face. In addition to zombies, the article also considers how estate and income tax laws should apply to vampires and ghosts. Given the difficulties identified herein of applying existing tax law to the undead, new legislation may be warranted. However, any new legislation is certain to raise its own set of problems. The point here is not to identify the appropriate approach. Rather, it is to goad Congress and the IRS into action before it is too late.

Mark Graham, Oxford Internet Institute, Taylor Shelton, University of Kentucky, and Matthew Zook, University of Kentucky, Mapping Zombies: A Guide for Digital Pre-Apocalyptic Analysis and Post-Apocalyptic Survival, in Zombies in the Academy: Living Death in Higher Education (A. Whelan, R. Walker, and C. Moore, eds.; University of Chicago Press., 2013).

Zombies exist, though perhaps not in an entirely literal sense. But the existence, even the outright prevalence, of zombies in the collective social imaginary gives them a ‘realness,’ even though a zombie apocalypse has yet to happen. The zombie trope exists as a means through which society can playfully, if somewhat grimly and gruesomely, discover the intricacies of humanity’s relationship with nature and the socially constructed world that emerges from it.

In this chapter, we present an analysis of the prevalence of zombies and zombie-related terminology within the geographically grounded parts of cyberspace, known as the geoweb (see also Haklay et al. 2008 and Graham 2010). Just as zombies provide a means to explore, imagine and reconstruct the world around us, so too do the socio-technical practices of the geoweb provide a means for better understanding human society (Shelton et al. forthcoming; Graham and Zook 2011; Zook et al. 2010; Zook and Graham 2007). In short, looking for and mapping geo-coded references to zombies on the web provides insight on the memes, mechanisms and the macabre of the modern world. Using a series of maps that visualize the virtual geographies of zombies, this chapter seeks to comprehend the ways in which both zombies and the geoweb are simultaneously reflective of and employed in producing new understandings of our world.

Download all publications from SSRN at the links.  

April 17, 2014

A New Book On Alexis de Tocqueville's Thought

Scholars Zbigniew Rau and Marek Tracz-Tryniecki of the University of Lodz have co-edited a new book on my favorite nineteenth century political philosopher, Alexis de Tocqueville.

Tocquevillian Ideas: Contemporary European Perspectives (University Press of America, 2014) includes Zbigniew Rau and Marek Tracz-Tryniecki, Tocqueville and Europe: What Can We Learn From Him About the Past, the Present and the Future of the Old Continent?,Cengiz Çağla, Tocqueville: A Thinker of Freedom, Ewa Atanassow, Patriotism in Democracy: What We Learn From Tocqueville, Marinus R. R. Ossewaarde, Tocqueville on Citizen Participation, Attila K. Molnár, Tocqueville and the Democratic Churning, Oliver Hidalgo, Religion, Virtue, and the Ennobling of Democracy: Tocqueville's Vision of Civic Society, Marek Tracz-Tryniecki, Human Dignity Versus Goodness: Tocqueville's Dilemna, and William R. Stevenson, Jr., The American Melting Pot as Reductionist Kettle: Religious Liberty's Worrisome Condition.

Thoughtful coverage by well-known scholars of an important figure in European and U.S.philosophy and political science.

April 16, 2014

Lawyer Ethics In Legal Fiction: The New Zealand Edition

Grant Hamilton Morris, Victoria University of Wellington Faculty of Law, has published Devils Down Under: Perceptions of Lawyers' Ethics in New Zealand Fiction at 44 Victoria University of Wellington Law Review 609 (2013). Here is the abstract.

Sophisticated fictional portrayals of lawyers facing ethical dilemmas can provide important insights into the nature of legal ethics and morality in the New Zealand legal profession. These insights can assist the legal community in addressing complex issues surrounding professional regulation. This article reveals legal characters who act contrary to legal ethics but with moral justifications and characters who act ethically but in a way that laypeople may view as amoral or immoral. While the depictions of lawyers are generally negative, a close analysis reveals that this is partly a result of confusion over what Dare has termed the standard conception of a lawyer's role. Fewer insights can be gained from superficial characterisations. While much has been written on this topic in other jurisdictions, more light can be shed on New Zealand's ethical landscape through the study of New Zealand's fictional texts. This article exposes a rich resource for the legal community because as Economides and O'Leary have argued in relation to legal ethics, stories matter. This dictum should apply to works of non-fiction and fiction.
Download the article from SSRN at the link. 

April 15, 2014

Blackstone, Law, and Emotion

Simon Stern, University of Toronto Faculty of Law, is publishing Blackstone's Legal Actors: The Passions of a Rational Jurist in Impassioned Jurisprudence: Law, Literature and Emotion, 1660-1800 (Nancy Johnson, ed., Bucknell University Press, 2014) (Aperçus Series). Here is the abstract.

The success of Blackstone’s Commentaries is usually attributed to the ambition of his project: to give a synthetic and integrated overview of the common law. Blackstone’s effort, however strained, to display the law’s coherence, helps to explain why the Commentaries were taken up by so many generations of avid readers, but the book’s success also owes something to Blackstone’s method of showcasing this coherence and soliciting the reader’s enthusiasm for it. Blackstone does not simply methodize the law; he also personifies the law as an active force that produces consistency, and he similarly casts the reader as someone who partakes of the same sensibility and appreciates the same virtues. Blackstone places both the law and the law student in an affective relation to the rationalizing aims promoted in the Commentaries. By positing, within the text, a reader who attaches to the law in this fashion, Blackstone encourages his reader to take it for granted that this sense of attachment is part and parcel of the study of law.

The chapter begins by examining Blackstone’s figuration of the law and its passions, and the pattern in which he attributes the same dispositions to the reader. Next, the chapter considers Blackstone’s treatment of emotion in the criminal law, which describes the violent impulses of passionate actors – now presented as objects rather than subjects of legal thought – whose feelings are distinguished from the emotions that inform the law’s operations and that animate the law’s human exponent. Finally, the discussion turns to the place of emotion in Blackstone’s often-quoted paean to the imaginative power of the property right – a tribute that also positions the property-owner and his “affections” as the objects of legal thought. When this passage is considered in relation to Blackstone’s other accounts of legal passion, the property-owner emerges as a figure whose feelings might themselves be the product of a Blackstonian legal education.
Download the essay from SSRN at the link. 

King Lear and the Classroom

Karen E. Boxx, University of Washington School of Law, has published Shakespeare in the Classroom: How an Annual Student Production of King Lear Adds Dimension to Teaching Trusts and Estates at 58 St. Louis University Law Journal 751 (2014). Here is the abstract.

King Lear is the archetypal story of the tension an difficulties in parent-child and sibling relationships. In a Trusts and Estates class, it reinforces the message that those relationships are the starting point and bedrock of this body of law and the vast system of rules that has been developed to resolve these conflicts.
This Article first summarizes the plot of King Lear and then describes the process I use to get the play produced by student volunteers. It then sets forth some of the estate planning and lawyering lessons King Lear presents and describes some of the skills I think the play production helps develop. Finally, the Article discusses the less traditional benefits from holding an in-class performance of a play.

This Article is part of the St. Louis Law Journal's annual teaching issue, which is devoted to Trusts and Estates in 2014.
Download the article from SSRN at the link. 

Kathryn T. Preyer Scholar Memorial Competition

From Serena Mayeri, University of Pennsylania School of Law

Kathryn T. Preyer Scholars

Named after the late Kathryn T. Preyer, a distinguished historian of the law of early America known for her generosity to young legal historians, the program of Kathryn T. Preyer Scholars is designed to help legal historians at the beginning of their careers. At the annual meeting of the Society two younger legal historians designated Kathryn T. Preyer Scholars will present what would normally be their first papers to the Society. The generosity of Professor Preyer’s friends and family has enabled the Society to offer a small honorarium to the Preyer Scholars and to reimburse, in some measure or entirely, their costs of attending the meeting. The competition for Preyer Scholars is organized by the Society’s Kathryn T. Preyer Memorial Committee.
Submissions are welcome on any topic in legal, institutional and/or constitutional history.  Early career scholars, including those pursuing graduate or law degrees, those who have completed their terminal degree within the previous year, and those independent scholars at a comparable stage, are eligible to apply. Papers already submitted to the ASLH Program Committee–whether or not accepted for an existing panel–and papers never previously submitted are equally eligible. Once selected, Preyer Award winners must present their paper as part of the Preyer panel, and they will be removed from any other panel.

Submissions should be a single MS Word document consisting of a complete curriculum vitae, contact information, and a complete draft of the paper to be presented. Papers must not exceed 40 pages (12 point font, double-spaced) and must contain supporting documentation. In past competitions, the Committee has given preference to draft articles and essays, though the Committee will still consider shorter conference papers. as one of the criteria for selection will be the suitability of the paper for reduction to a twenty-minute oral presentation. The deadline for submission is June 15, 2014.

Kathryn T. Preyer Scholars will receive a $500 cash award and reimbursement of expenses up to $750 for travel, hotels, and meals. Each will present the paper that s/he submitted to the competition at the Society’s annual meeting in Denver, Colorado, on November 6-9, 2014.

The Society’s journal, Law and History Review, has published several past winners of the Preyer competition, though it is under no obligation to do so.
Please send submissions as Microsoft Word attachments by June 15, 2014, to the chair of the Preyer Committee, Gautham Rao <email>.  He will forward them to the other committee members.

The 2014 Preyer Memorial CommitteeSam Erman, Assistant Professor of Law, University of Southern California
Serena Mayeri, Professor of Law and History, University of Pennsylvania
Gautham Rao, Assistant Professor of History, American University
Michael Schoeppner, Visiting Assistant Professor of History, University of Maine at Farmington
Karen Tani, Assistant Professor of Law, University of California, Berkeley

For more information and for a list of past winners, please see: http://aslh.net/about-aslh/honors-awards-and-fellowships/preyer-scholars/  

April 14, 2014

Doing Justice In Early California

Paul H. Robinson, University of Pennsylvania Law School, and Sarah M. Robinson are publishing Justice: 1850s San Francisco and the California Gold Rush as Chapter 4, in Living Beyond the Law: Lessons from Pirates, Prisoners, Lepers, and Survivors (Rowman & Littlefield, 2014) (forthcoming). Here is the abstract.

Using stories from the 1848-1851 California gold miners, the 1851 San Francisco vigilante committees, Nazi concentration camps of the 1940s, and wagon trains of American westward migration in the 1840s, the chapter illustrates that it is part of human nature to see doing justice as a value in itself — in people’s minds it is not dependent for justification on the practical benefits it brings. Having justice done is sufficiently important to people that they willingly suffer enormous costs to obtain it, even when they were neither hurt by the wrong nor in a position to benefit from punishing the wrongdoer.

This is Chapter 4 from the forthcoming general audience book Living Beyond the Law: Lessons from Pirates, Prisoners, Lepers and Survivors (Rowman & Littlefield 2014). Included is a table of contents for the book and a summary of the line of argument of all of its chapters. (Chapter 3 of the book is also available on SSRN at http://ssrn.com/abstract=2413875.)

Download the chapter from SSRN at the link. 

April 10, 2014

Legal Communication

Katia Fach Gómez, University of Zaragoza, has published Why Does Legal English Sound Like Gibberish To Many Spanish Law Students? Here is the abstract.
Legal English is unfortunately still a rare bird in law faculties in public universities in Spain. However, a command of legal English — the generic term used in this article to refer to both a specific legal subject taught in English and an instrumental “English for Specific Purposes” (ESP) subject in the legal sphere — is one of the assets that the voracious labor market demands of even recent graduates. This article is a personal reflection on the multiple dysfunctional factors in Spain that, together, prevent this gap from closing as quickly and completely as would be desirable. My article also shows that other, more auspicious developments in the legal English teaching and learning field are starting to take root in Spain and that there are also reasons for believing that Spanish lawyers can be relied on to take the lead in the long overdue “degibberization” of legal English.
Download the paper from SSRN at the link. 

Revealing the Links Between Law and Magic: LHI and Thomas Jefferson School of Law Conference on Law and Magic Update

Here's an update on the Law and Magic Conference, sponsored by the Law and Humanities Institute and the Thomas Jefferson School of Law, which will take place June 6, 2014.

Registration and check-in is scheduled to begin at 7:15 a.m. Panels will begin at 8:15. Here is the preliminary schedule of panels.

As of now, the Hotel Indigo at 509 9th Avenue, San Diego, is the conference hotel. Here's the link. If you have problems booking a room, please contact Jackie Vu at Hotel Indigo
p: 619-906-4814
e-Fax:  619-923-3516

Schedule for June 6
(subject to change)
7:15                        Registration and Check-In

8:15-9:45              Panel 1
                                Law,  History, and Magic
                                Christine Corcos
                                Paul Finkelman
                                Rob McQueen
                                Julie Cromer-Young, Chair and Discussant

10:00-12:00         Panel 2
                                Intellectual Property and Magic
                                Jay Dougherty
                                Jennifer Hagan
                                Mark Tratos
                                Pierre Fleury-LeGros
                                Guilhem Julia
                                Jay Dougherty, Chair and Discussant

12:15-1:45           Lunch Break

2:00-3:30              Panel 3
                                Magic on Trial
                                Sydney Beckman
                                Curtis Frye
                                Rostam Neuwirth
                                Julie Cromer Young, Chair and Discussant
3:45-5:15              Panel 4
                                Law, Literature, Popular Culture, and Magic
                                Anthony Farley
                                Richard Weisberg
                                Annette Houlihan
                                Christine Corcos, Chair and Discussant

April 8, 2014

A History of the Privacy Profession

Andrew Clearwater, University of Maine School of Law, and J. Trevor Hughes, International Association of Privacy Professionals, have published In the Beginning...An Early History of the Privacy Profession, at 74 Ohio State Law Journal 897 (2013). Here is the abstract. 

Privacy is a concept that has existed in various forms and degrees, for much of human history. However, the origin of information privacy as a compliance, risk management, and operational concern has been much more recent. This new field, and the professionals who work within it — the privacy profession — did not exist broadly until the past decade. From essentially no active professionals in the 1970s and 1980s, the privacy profession has grown to at least 13,000 people working on managing information privacy within their organizations. As the information economy continues to grow — pushed by the breath-taking speed of technological development, cloud computing, big data, and emerging uses for exponentially increasing stores of data — it is reasonable to expect that the privacy profession will grow. The exact trajectory of the privacy profession is difficult to predict. Management of privacy is, today, a well-established and important function, and it is obvious that the professionals who work in this field will grow in number and prominence in the coming years.
Without knowing where we’ve come from, we can’t know where we are going and so it is appropriate for us to document the nascent years of the privacy profession. We expect that, at some point in the future, scholars will seek to understand how the field of privacy management emerged, who served as a catalyst for the growth of the field, and what the important milestones for the privacy profession were as the turbulence of the early days of the information economy played out. While this history is most certainly global — the privacy profession has its earliest roots in Germany in the 1970s — we have chosen to investigate this change where we understand it best and where the profession has appeared to grow the most, the United States. We have also limited our focus to the role of the privacy professional and privacy lawyer. There are certainly public policy leaders and advocates in the privacy field who deserve well-documented histories. Through these lenses, we offer a history of privacy becoming a profession.
Download the article from SSRN at the link. 

A Conference at St. Mary's University (UK), September 3-4, 2014

Wednesday 3rd September – Thursday 4th September 2014

Law both regulates cultural representations and creates them. These dual themes will be explored in a conference focused upon the twin strands of law and visual culture, and law and gender.
How does law regulate gender; how does it regulate images? What is/are the relationship/s between visual culture and the gendering of law? How have gendered divisions structured the legal profession and practice, and what is the role of the visual in understanding such complexities? How can visual culture and representation challenge or enlighten the gendered dimensions of law? This conference is aimed at exploring the intersections of law, gender, and the visual in an effort to address such questions and related concerns.
Papers are sought in relation to the dual themes of the conference:
  • Visualising Law: Intersection(s) of law with visual culture, in all its manifestations (including graphic fiction and Graphic Justice, TV, film, photo-journalism, art and art history). The conference welcomes an exploration of ‘law’ and ‘visual culture’ in the broadest sense of these terms.
  • Gendering Law: The representation of gender in the law, historically and today, and the law’s responses to wider cultural representations (topics may include but are not limited to gendering legal history, law as gendered spectacle, sexuality and the law).
Papers traversing or combining these broad themes are particularly welcome.

Submit abstracts (300 words) to the organisers: thomas.giddens@smuc.ac.uk or judith.bourne@smuc.ac.uk. no later than 31st May 2014.

The organisers are also willing to discuss prospective ideas for papers prior to the submission of abstracts.
Registration fee: £100

April 7, 2014

Free Trade Doctrine In Printed Matter: The 1878 Royal Commission on Copyright

Barbara Lauriat, King's College London, The Dickson Poon School of Law, is publishing Free Trade in Books — The 1878 Royal Commission on Copyright in the Journal of the Copyright Society of the USA (2014). Here is the abstract.

The doctrine of free trade dominated Victorian policy discussions for decades — including those about copyright law. But the application of free trade doctrine to copyright policy discussions was not at all straightforward. Professed free trade supporters disagreed profoundly on the question of copyright. Some saw it as an illegitimate restriction on trade, while others viewed it as a mode of enforcing a natural property right. Why did the application of free doctrine to copyright policy result in such widely divergent positions on the proper scope and purpose of copyright law? This article attempts to answer that question, focusing on the 1878 Royal Commission on Copyright as illustrative of the extent to which free trade doctrine failed to guide copyright policy consistently. The complex relationship between free trade and copyright is a powerful example of the extent to which political ideologies are not predictive of individual views on the optimal scope of copyright protection.
Download the article from SSRN at the link.

A New Article on Cervantes and Law

Professor Jose Calvo has published "Cervantismo en Derecho. Panorama de la investigación en España.2004-2013”  at  9 Revista de Educación y Derecho. Education and Law Review 1 (September/March 2013/2014). More about Cervantes and law at Professor Calvo's blog here.

April 2, 2014

Isaiah Berlin and Enlightenment Constitutionalism

Jeremy Waldron, New York University School of Law; University of Oxford, has published Isaiah Berlin's Neglect of Enlightenment Constitutionalism. Here is the abstract.

One of the most important achievements of the Enlightenment is what I shall call Enlightenment constitutionalism. It transformed our political thinking out of all recognition; it left, as its legacy, not just the repudiation of monarchy and nobility in France in the 1790s but the unprecedented achievement of the framing, ratification, and establishment of the Constitution of the United States. It comprised the work of Diderot, Kant, Locke, Madison, Montesquieu, Rousseau, Sieyes, and Voltaire. It established the idea of a constitution as an intricate mechanism designed to house the untidiness and pluralism of human politics.

Yet Isaiah Berlin, supposedly one of our greatest interpreters of the Enlightenment, said almost nothing about it. The paper develops this claim and it speculates as to why this might be so. Certainly one result of Berlin's sidelining of Enlightenment constitutionalism is to lend spurious credibility to his well-known claim that Enlightenment social design was perfectionist, monastic, and potentially totalitarian. By ignoring Enlightenment constitutionalism, Berlin implicitly directed us away from precisely the body of work that might have refuted this view of Enlightenment social design.
Download the paper from SSRN at the link. 

Lawyers and Game of Thrones

Over at Concurring Opinions, Dave Hoffman is posting the transcripts of some very interesting interviews he has conducted with Game of Thrones author G. R. R. Martin. Game of Thrones is now a huge hit on HBO.  See here, here, and here. In the second interview, Mr. Martin discusses the role of lawyers Game of Thrones, which takes the York/Lancaster Wars of the Roses for some of its inspiration. On the Game of Thrones series, see:

Game of Thrones and Philosophy: Logic Cuts Deeper Than Swords (Henry Jacoby, ed., Wiley, 2012) (Blackwell Philosophy and Pop Culture Series). Available in print and ebook formats. 

Nelson Mandela: The Lawyer's Lawyer

Justin Hansford, Saint Louis University School of Law, has published Nelson Mandela: The Lawyer as Agent for Social Change as a Saint Louis University Legal Studies Research Paper. Here is the abstract.

On December 5, 2013, a preeminently honorable man, perhaps the most admired in the world, passed away. That man was Nelson Mandela, and he was a lawyer.
Mandela’s surpassing prominence came not from writing a groundbreaking law review article, or from dazzling court watchers with a brilliant closing argument in a high profile trial (save the historic “speech from the dock” that he gave at his own). Mandela’s singular gift to civilization – his inspiration and leadership of South Africa’s peaceful transition from Apartheid rule to multi-racial, constitutional democracy – will not be known by most people as the provision of a “legal service.” Indeed, relatively few among the millions who revere Mandela will perceive the formidable legal mind at work behind his history-making achievements. But as much as anything, it was Mandela’s mastery of the lawyer’s art that enabled him to build a case that changed the world.

Mandela was a lawyer’s lawyer. And his story is a lesson to all that living the lawyer’s life, at its best, engenders the skills and character traits that can empower people to make a difference in their community, their nation, and beyond.

Download the paper from SSRN at the link. 

April 1, 2014

Bringing the Gosnell Story To the Screen

Independent filmmaker Phelim McAleer (FrackNation) is interested in bringing the story of Dr. Kermit Gosnell to the screen. Dr. Gosnell was convicted of first-degree murder and involuntary manslaughter in 2013 and sentenced to life in prison without the possibility of parole for killing a baby born alive after a failed abortion, and for the death of an adult patient, and to 30 to 60 years in prison for violation of the RICO act. Mr. McAleer and his partner Ann McElhinney plan to use crowd sourced funding to launch the film. The filmmakers say this film will be scripted, unlike their previous projects.