December 21, 2014

A Review of "Storytelling For Lawyers"

David Dow, University of Houston Law Center, has a nice review of Philip Meyer's Storytelling For Lawyers (Oxford, 2014) at 39 Vermont L. Rev. 13 (2015) (not yet available online). 

December 11, 2014

Scientific Evidence and Medical Malpractice Cases In the Nineteenth Century

Michael Ashley Stein, William & Mary Law School; Harvard Law School, Christopher P. Guzelian, Thomas Jefferson School of Law, and Kristina M. Guzelian, Thomas Jefferson School of Law, have published Expert Testimony in Nineteenth Century Malapraxis Actions at 55 American Journal of Legal History 284 (2015). Here is the abstract.

Medical negligence evolved as an independent tort during the nineteenth century. Despite pervasive professional concerns about its ethicality, paid medical expert testimony became routine. In a manner strikingly similar to modern commentary, prominent jurists disparaged testimony for commonly relating anecdotal experience rather than scientifically derived knowledge. Also notable among cases was a dominant tendency to rule for medical practitioners when both parties presented expert testimony. Conversely, suits resolved in favour of whichever party unilaterally retained a testifying expert.

Download the article from SSRN at the link. 

December 10, 2014

Fifth International Conference On Law, Language, and Discourse, September 2015

The School of Law, Psychology, and Social Work at Örebro University (Sweden) is hosting the 5th International Conference on Law, Language, and Discourse from September 27 to October 1, 2015. Here is a description of the conference with panels, invited speakers, and special events.

Fighting Words

Oren Gross, University of Minnesota Law School, and Fionnuala D. Ni Aolain, University of Minnesota Law School & University of Ulster, Transitional Justice Institute, have published The Rhetoric of War: Words, Conflict and Categorization Post-9/11 in volume 24 of the Cornell Journal of Law and Public Policy (2014).  Here is the abstract. 

Words are a source of immense power. Using them we not only communicate with each other and express our thoughts, but shape thought itself. In turn, the framing of issues and outcomes significantly shapes choices — whether pertaining to private decisions or to public policy. At the same time, reliance on framing as a shortcut also means that whoever manages to control the framing of information would greatly influence, and could manipulate, the interpretation and meaning that recipients of that information are likely to attach to it.
The article addresses the language, rhetoric, status, and legality of “war” by examining the complexity of decision-making for policy-makers in the aftermath of the terrorist attacks of September 11, 2001. It does so by looking both inward, examining presidential war rhetoric in the United States, and outward, analyzing the experience of democratic states with the legal construct of “emergency” and “war” under the relevant international human rights treaties.
We critically examine the role of the President as a national choice architect and the nation’s chief rhetorician and his use of the power of the bully pulpit in the context of war rhetoric — including the War on Poverty, War on Drugs, and the War on Terror — as well in situations when the presidents have elected to steer clear of the war frame and adopted alternatives.

We also analyze the positioning of democratic states post 9/11, as they have adopted, adapted and rejected the language of war and emergency to respond to terrorist threats. In particular we note the growing trend among consolidated democracies to not invoke the established legal mechanisms dealing with emergencies under the relevant international treaties, opting instead to deal with perceived threats under the aegis of ordinary legislation without invoking the framing of “war” or “emergency.” We chart significant indeterminacy indicated by the contradictory usage of the terminology and legal status associated with emergency, derogation and war over time and examine what such varied claims by democratic states mean in the war-emergency-normalcy realm.

Thus, we argue that directing attention to the language and formalities of executive and state positioning is critical not only to understanding the political actions of states, but to engage with the form and substance defining the legal status of conflict and crisis.

Download the Article from SSRN at the link. 

December 8, 2014

Some "Law and" From the Biological Sciences

Hendrik Gommer, CIS Law, has published Integrating the Disciplines of Law and Biology: Dealing with Clashing Paradigms. Here is the abstract.

This article considers the difficulties that a researcher on the border of normative and explanatory sciences may encounter. The article begins with an introduction to the field at stake, namely the integration of law and biology. It appears that this kind of interdisciplinary research is not only a challenge for the researcher himself, but also for his readers. Concepts are not understood, assumptions differ, ‘peers’ are not really peers, and the new paradigm cannot be proven. Even though some scholars might enjoy loneliness, their academic isolation may actually hamper the spreading of their ideas. Science is not only about having the best ideas, but also about having peers. Without peers, achieving a breakthrough can prove to be very difficult. This is sad news for interdisciplinary researchers, but also seems dire news for science as a whole. Major scientific breakthroughs will be significantly delayed. On the other hand, cooperative communities need stability and cannot reward every innovative new idea that has the potential to become a new paradigm.
Download the paper from SSRN at the link.

A look at the "Law and" fields on the other side of the two cultures divide.  

December 4, 2014

The Decline of the Leftist Law Professor?

Brian Z. Tamanaha, Washington University in Saint Louis School of Law has published The Failure of Crits & Leftist Law Professors to Defend Progressive Causes in volume 24 of the Stanford Law & Policy Review (2013). Here is the abstract.

Future generations will look back at the first decade of the twenty-first century as a pivotal time when a huge economic barrier was erected to encumber the path to a legal career. The symbolic announcement of this barrier rang out when annual tuition crossed the $50,000 threshold, now exceeded at a dozen or so law schools. Including fees and living expenses, it costs well in excess of $200,000 to obtain a law degree at most of the nation’s highly regarded law schools and at a number of non-elite ones as well. Law schools thus impose a formidable entry fee on anyone who wishes to follow what, until recently, has long served as a means of upward mobility and access to power in American society.
The pricing structure of legal education has profound class implications. High tuition will inhibit people from middle-class and poor families more than it will deter the offspring of the rich with ample resources. Law school scholarship policies, for reasons I will explain, in effect channel students with financial means to higher ranked law schools, reaping better opportunities, while sending students without money to lower law schools. A growing proportion of elite legal positions will be held by people from wealthy backgrounds as a result. For students who rely on borrowing to finance their legal education, the heavy debt they carry will dictate the types of jobs they seek and constrain the career they go on to have.
Liberal law professors often express concerns about class in American society — championing access to the legal profession and the provision of legal services for underserved communities. Yet as law school tuition rose to its current extraordinary heights, progressive law professors did nothing to resist it. This Article explores what happened and why.
This is offered in the spirit of critical legal studies — as a critical self-examination of the failure of leftist law professors. The Crits were highly critical of complacent liberal academics of their day, arguing that they had a hand in perpetuating an unjust legal system; here I charge liberal legal academia — including the Crits — with perpetuating the profoundly warped and harmful economics of legal education. What follows will offend many of my fellow liberals. It may even lose me some friends. Liberal law professors must see past their anger to reflect on whether there is a core truth to my arguments, to take personal responsibility for what has happened, and to engage in collective action to do something to alter the economics of our operation. If not, the current economic barrier to a legal career may become permanent.

Download the Article from SSRN at the link. 

The Narrative In U. S. Arab Naturalization Cases, 1790-1952

Khaled A. Beydoun, Barry University School of Law, has published Between Muslim and White: The Legal Construction of Arab American Identity at 69 N. Y. U. Ann. Surv. Am. L. 29 (2013). Here is the abstract.

This Article examines the legal origins of Arab-American identity during the racially restrictive Naturalization Era (1790 through 1952), when whiteness was a prerequisite for American citizenship. Ten of the 53 naturalization hearings during this era involved a petitioner from the Arab World. Judges during the Naturalization Era viewed “Arab” as synonymous with “Muslim” identity. Because Muslims were presumed to be non-white, and Arabs were presumed to be Muslims, Arabs were presumptively ineligible for citizenship. But this presumption could be rebutted. Arab Christians could – and did – invoke the fact of their Christianity to argue that they were white. These arguments sometimes secured citizenship for Christian petitioners, but did not always rebut the presumption that every immigrant from the Arab World was Muslim.

Legal scholars have paid insufficient attention to the Arab naturalization cases. These cases reveal not only how judges viewed religion as a proxy for race, but also the ways in which they conflated Arab identity with Muslim identity to do so. This conflation persists today in that many people continue to believe that Arab is synonymous with Muslim, a conflation that is especially salient following the September 11th terrorist attacks. Almost all of the current literature on Arab-Americans centers on how the government’s response to 9/11 made people who are perceived to be Arabs, Muslims, or Middle Eastern vulnerable to legalized forms of racial surveillance, subordination, and violence.

While this body of work is important, this Article introduces a preface to the post-9/11 racialization of Arab-Americans – the racial conflation of Arab and Muslim identity during the Naturalization Era. The courts during this era rendered Arab Muslim immigrants presumptively non-white and inassimilable, while sometimes finding Arab Christians eligible for citizenship and white by law. The legal construction of Arab-American identity in that earlier period helped shape contemporary understandings and misunderstandings of both Arab and Muslim-American identity today.

Download the article from SSRN at the link. 

December 3, 2014

Messianism and Political and Legal Thought

Antoni Abat i Ninet, University of Copenhagen, has published The Messianic Phenomenon in Political and Legal Thought: Where Kelsen and Schmitt Match. Here is the abstract. 

The theological origin of legal and political concepts has been an accepted belief by figures such as Locke, Hume, Smith, Machiavelli and Hobbes. The list of legal authors can also include Robert Cover´s narrative on legal violence, Fitzpatrick or Sanford Levinson. The constitutional texts around the world are good examples of transposition and complicity of theological and juridical thoughts. In the US example, the flag, the Declaration and the Constitution constitutes the holy trinity of what Tocqueville called “American civil religion”. The drafters of the US Constitution consciously played the role of a civil God; the US Supreme Court developed the role of secular prophets; the Constitution was the sacred tablets; and the people of the United States became the chosen people. As the law was received by Moses on the tablets, so too did the constitution adopt a legal, moral and religious character. This paper focuses on the study of messianism and its application to political and legal-constitutional thought aiming to enlighten some of the elements of Carl Schmitt's conceptualization of the “Sovereign” and Hans Kelsen's definition and legitimacy of the “Basic Norm”. The main goal is to identify theological characters of both theories and to analyse the transposition of mystical elements to the secular world to achieve non-disputed legitimacy.

The paper begins facing a difficult challenge, to find out a comprehensible definition of the messianic idea. The first segment is related to definition and elements of the Jewish spirituality on messianism. To achieve this purpose the paper uses the work of Gershom Scholem as a main baseline, but completed with an historical approach of messianism in the Old Testament, the medieval age and in modern Jewish philosophy. The study of the historical evolution is particularly important in this paper because it reflects the wide variation of meanings, aspects and features that the theory of messianism has suffered. The second section analyses the Christian account on messianism, even that an increasing number of scholars consider that Paul never broke away from Judaism but opposed non-Jewish involvement in the Torah, but encouraging Jesus-believing non-Jews to accept their ethnic identity. The Christian spiritual version of messianism deals mainly with the Gospels and the letters of Paul, with the work of Taubes, Saint Paul and Saint Thomas Aquinas’ Summa Theologica.
Once concluding that messianism is no esoteric or simply mysticism, but a theory than can be transposed to politics and law, the paper goes further with the work of Carl Schmitt and Hans Kelsen. How the political (Schmitt) and legal-constitutional (Kelsen) thought have adapted messianic trends in order to achieve legitimacy, recognition or obedience. The role that the “Sovereign” plays in Carl Schmitt’s apocalyptic political theology is analysed and compared with the position and features that the Messiah develops in Jewish and Catholic mysticisms. The second example, which is at the same time more provocative but also innovative, consists in a comparison of the messianic thought with Hans Kelsen’s “Basic Norm”. More concretely, the redemptory role that the first constitution plays in Kelsen's “Pure Theory of Law” and the “faith” needed to accept the no matter how, the constituent process of the basic norm. The field of the paper is theoretical, the realm of the theory more than in the realm of praxis, the paper does not look for practical intentions even that some of the conclusions may have practical effects in the understanding of our constitutional systems. In this sense, the conceptualization and claims of terms such as “rule of law”, “proportionality” and lately “human dignity” in comparative constitutional law can also be defined as messianic.

The full text is not available from SSRN. 

December 2, 2014

The Meaning of Charity

Jonathan Garton, University of Warwick, has published Re Macduff and the Charity of the Wise at 16 Charity Law and Practice Review 21 (2013-14). Here is the abstract. 

This article argues that Re Macduff, a largely overlooked 19th century Court of Appeal decision, should be reassessed as one of the defining cases of modern charity law. In rejecting 'philanthropic purposes' as being within the spirit and intendment of the Preamble to the Statute of Charitable Uses 1601, its influence has subtly but significantly shaped the development of charity law over the past century. En route the article offers a literary and sociological analysis of the protean concept of philanthropy, as contrasted with charity, tracing its shifting meaning from its origins in ancient Greek tragedy to the activities of the great social reformers of the 19th century.

Download the article from SSRN at the link. 

December 1, 2014

The Ups and Downs of U.S. State Criminal Codes

Paul H. Robinson, University of Pennsylvania Law School, has published The Rise and Fall and Resurrection of American Criminal Codes as University of Pennsylvania Law School Public Law Research Paper No. 14-38. Here is the abstract.

This brief essay summarizes the virtues of the modern American codification movement of the 1960s and 70s, putting it in a larger global context, then describes how these once-enviable codes have been systematically degraded with thoughtless amendments, a process of degradation that is accelerating each year. After exploring the political dynamics that promote such degradation, the essay suggests the principles and procedures for fixing the current codes and, more importantly, structural changes to the process that could avoid the restart of degradation in the future.
Download the paper from SSRN at the link. 

Sociolegal Studies in New Zealand

Kim Economides, Flinders University, has published Socio‐Legal Studies in Aotearoa/New Zealand at 41 Journal of Law and Society 257 (2014). Here is the abstract.

This article reviews the development and impact of the socio‐legal field in New Zealand. It begins by assessing the socio‐legal presence within teaching and research conducted across New Zealand's law faculties before analysing factors likely to inhibit future growth of the sub‐discipline in this remote jurisdiction. Having examined how New Zealand's legal scholars map and influence national legal behaviour, without always recognizing contradictions between these objectives or categorizing their research as ‘socio‐legal’, the article goes on to examine how the next generation of socio‐legal researchers might exert stronger influence over the law curriculum and new areas of legal policy. In conclusion, it argues for a distinctive New Zealand approach toward socio‐legal studies and notes that future prospects appear encouraging, and in certain respects more promising than those in the United Kingdom, particularly when considering research impact.
The full text is not available from SSRN.  

Socio-Legal Scholarship In Canada

Harry W. Arthurs, York University Law School (Osgoode Hall) and Annie Bunting, York University, have published Socio‐Legal Scholarship in Canada: A Review of the Field at 41 Journal of Law and Society 487 (2014). Here is the abstract.

This article is the second in an occasional series dealing with the development, current status, and future of socio‐legal studies in selected countries. It follows Kim Economides's review of socio‐legal studies in Aotearoa/New Zealand.
The full text is not available from SSRN.  

Friendship, Imperial Violence, and the Law of Nations

Alecia Simmonds, University of Technology< Sydney, Faculty of Law, has published Friendship, Imperial Violence and the Law of Nations: The Case of Late-Eighteenth Century British Oceania in volume 42 of the Journal of Imperial and Commonwealth History (2014). Here is the abstract. 

This article examines the interrelationship of friendship and violence in European juristic traditions and in British scientific voyaging in Oceania. Drawing upon Roman texts and natural law treatises, it shows how friendship, meaning hospitality and trade, appeared as a right asserted by imperial nations, often with the backing of force. Moving from jurisprudence to imperial practice, this paper examines the coercive elements of cross­-cultural friendship in eighteenth­ century British expansion into Oceania. It suggests that it was in the breach more than the observance that discourses of friendship came to the fore, specifically in resistance to first contact and in accusations of theft. Seen to be motivated by either violent or avaricious passions, theft and native resistance tore the bonds of human sociability asunder. I argue that the significance of friendship was twofold. First, in a context of inter­imperial rivalry, friendship signified native consent in claims of possession over land and thus ensured conformity to legal norms. Second, it promised a system of order governed by norms of affective restraint that could sublimate the passions of natives, voyagers and nations.
Download the article from SSRN at the link.

Time and Movement In the Common Law

Olivia Barr, University of Technology, Sydney, Faculty of Law, has published Walking with Empire at 38 Australian Feminist Law Journal 59 (2013). Here is the abstract. 

This article considers the place of movement in common law and, in particular, the relation between movement and place in the time and space of common law in the Colony of New South Wales. Attending to jurisdiction as a way of sliding beneath the rhetoric and representations of sovereignty and territory that tend to dominate the ways in which we understand the place of law, this article links movement to place and suggests that it is through practices of movement that common law comes to be in place. Drawing on testimony provided in a 1799 colonial trial, the elliptical centre of this article is a burial party that walked into the woods beyond an emerging frontier settlement to bury the dead. Redescribing the movements of this burial party through an attention to some of the technical and material practices of common law provides a way of illustrating how common law moves and how common law comes to be, or at least how common law seems to come to be, in place. Offering a jurisprudential linking of movement to place, therefore, this article suggests it is through material practices of movement in both space and time that common law comes to rest in place. Put simply, this is the suggestion that movement forms common law’s place.

Download the article from SSRN at the link.