October 30, 2015

The Role of Emotion In English Law and Legal Theory

For those of us who think the English are dour or lack affect,, and that English lawyers are more of the same, a new book offers to change our views. Newly published by Bucknell University Press is Impassioned Jurisprudence: Law, Literature, and Emotion, 1760-1848, edited by Nancy E. Johnson. Here is a description of the contents from the publisher's website.
In this volume of essays, scholars of the interdisciplinary field of law and literature write about the role of emotion in English law and legal theory in the late eighteenth and early nineteenth centuries. The law's claims to reason provided a growing citizenry that was beginning to establish its rights with an assurance of fairness and equity. Yet, an investigation of the rational discourse of the law reveals at its core the processes of emotion, and a study of literature that engages with the law exposes the potency of emotion in the practice and understanding of the law. Examining both legal and literary texts, the authors in this collection consider the emotion that infuses the law and find that feeling, sentiment and passion are integral to juridical thought as well as to specific legislation.

Includes an introduction by Nancy E. Johnson, Simon Stern, Blackstone's Legal Actors: The Passions of a Rational Jurist, Nancy E. Johnson, Narrative Sentiment in Adam Smith's Lectures on Jurisprudence, J. T. Scanlan, Love and the Law in Boswell's Development as a Writer in the Late 1760s, Melissa J. Ganz, Freedom and Fetters: Nuptial Law in Burney's The Wanderer, Erin Sheley, Doubled Jeopardy: The Condemned Woman as Historical Relic, Peter de Bolla, The Madness of Sovereignty: George III and the Known Unknown of Torture, Ian Ward, The Great Dramatist: Macaulay and the English Constitution. Also includes a Timeline of Selected Legal Publications, Legislation, and Events, and a Bibliography.


Figuring Out the "And" In Clauses of the Constitution

Samuel L. Bray, UCLA School of Law, is publishing 'Necessary AND Proper' and 'Cruel AND Unusual': Hendiadys in the Constitution, in volume 102 of the Virginia Law Review (2016). Here is the abstract.
Constitutional doctrine is often shaped by the details of the text. Under the Necessary and Proper Clause, the Supreme Court first considers whether a law is “necessary” and then whether it is “proper.” Some justices have urged the same approach for the Cruel and Unusual Punishments Clause: first ask if the punishment is “cruel,” then if it is “unusual.” That each clause has two requirements seems obvious, and it is has been the assumption underlying vast amounts of scholarship. That assumption is incorrect. This Article argues that “necessary and proper” and “cruel and unusual” are best read as instances of hendiadys. Hendiadys is a figure of speech in which two terms, separated by a conjunction, have a single complex meaning. It is found in many languages, including English: e.g., “rise and shine,” “nice and fat,” “cakes and ale.” When “cruel and unusual” is read as a hendiadys, the clause does not prohibit punishments that merely happen to be both cruel and unusual. Rather, it prohibits punishments that are unusually cruel, i.e., innovative in their cruelty. If “necessary and proper” is read as a hendiadys, then the terms are not separate requirements for congressional action. The word “necessary” requires a close relationship between a statute and the constitutional power it is carrying into execution, and “proper” instructs us not to interpret “necessary” in its strictest sense. To read each of these constitutional phrases as a hendiadys, though seemingly novel, actually aligns closely with the early interpretations, including the interpretation of the Necessary and Proper Clause in McCulloch v. Maryland. The readings offered here solve a number of puzzles, and they better capture the subtlety of these clauses.
Download the article from SSRN at the link.

Influence of the French Bar on the Development of the Russian Legal Profession

Elizaveta Blagodeteleva, National Research University Higher School of Economics (Moscow), has published The French Bar and the Emerging Legal Profession in Russia as Higher School of Economics Research Paper No. WP BRP 110/HUM/2015. Here is the abstract.
The complex and seemingly inconsistent use of the social vocabulary has been on the research agenda of those who study the Russian Empire for quite some time. Historians have long believed that the indiscriminate use of such terms as "estate" ("soslovie") and "corporation" reflected Russian backwardness and eventually impeded further social and economic development, especially when it came to professional groups. The paper examines this assumption by focusing on the terminology deployed for the designation of Russian lawyers, in comparison to their French counterparts. Therefore, it dwells at length on the references to the French Bar in the bureaucratic discussion and in current press at the time of drafting the basic principles of the future Bar organization in Russia between 1857 and 1864. The comparison of the two sets of references provided plenty of evidence that the French notion of the estate (l'ordre des avocats) had a dramatic impact on the interpretation of Russian soslovie of legal practitioners. The French model seemed to spur social imagination and eventually helped Russian political and intellectual elites envisage a new type of social organization encompassing free, well-educated and politically engaged men.
Download the paper from SSRN at the link.

October 29, 2015

New Books On Witchcraft

Stacy Schiff's new book The Witches: Salem, 1692 is now out, and she discusses Salem and the topic of witchcraft with Huffington Post host Paul Brandeis Rauschenbuch here.

Other recently published books on witchcraft and the Salem trials:

Emerson W. Baker, A Storm of Witchcraft: The Salem Trials and the American Experience (Oxford University Press, 2014).

Benjamin C. Ray, Satan and Salem: The Witch-Hunt Crisis of 1692 (University of Virginia Press, 2015).

Using Popular Culture to Demonstrate the Rules of Evidence


Martin A. Schwartz, Touro College Jacob D. Fuchsberg Law Center, has published Trial Evidence Brought to Life: Illustrations from Famous Trials, Film and Fiction (2015 Edition)(Practising Law Institute, 2015). Here is the abstract.
This book is a guide to the law of evidence that utilizes evidentiary examples from popular culture to provide a strong understanding of the Federal Rules of Evidence, and its interpretive case law. It also provides an understanding of how popular culture sources inform jurors’ preconceptions about the trial process. Illustrations from famous cases, movies, novels, cartoons, and other media highlight the presumptions jurors bring to the courtroom. Issues covered include: relevance; unfair prejudice; the rule against hearsay and its exceptions; recent developments in the Confrontation Clause; expert testimony; differences between expert witness and lay witness testimony; impeachment methods; procedures for juror questioning of witnesses; admissibility of videotape evidence; and requirements for introducing electronic evidence.

Structures of Contemporary Jurisprudence

Stefan Sciaraffa, McMaster University, is publishing Constructed and Wild Conceptual Necessities in Contemporary Jurisprudence in volume 6 of Jurisprudence. Here is the abstract.
I argue here that much of contemporary analytic jurisprudence can be readily construed as a series of interesting and important debates that revolve around two different kinds of concepts. One line of debate is about the necessary and sufficient conditions that ought to be affixed to the constructed concept of a legal system in order to illuminate the social institutions within the observational purview of legal theorists. A second line addresses, at it were, a wild concept—namely, the concept that animates the law-recognizing behaviour of legal officials. As I shall explain below, there is little factual disagreement among the parties to the first line of debate; rather, this debate is largely a dispute about the appropriate desiderata for constructing a concept that best illuminates the relevant set of social institutions. By contrast, the debates that pertain to the wild concept can be readily characterized as empirical disputes about the structure and content of the concept that animates the behaviour of legal officials.

Download the article from SSRN at the link.

October 27, 2015

Measure For Measure and the Nature of Justice

Mark Lawson discusses the enduring importance of Shakespeare's Measure for Measure here for the Guardian. He notes,

Not all observers, it’s true, see the play as universal. At the matinee I attended of the Globe production, a large school party was visibly and audibly bemused by the tenacity of Isabella’s defence of her virginity, which includes rebuking her brother, when he wonders if she couldn’t just do this one thing to save his life, with the startling argument: “Is’t not a kind of incest to take life / From thine own sister’s shame?”

But the character’s willingness to be martyr for chastity – and Angelo’s moral crackdown, backed by capital punishment – would seem less quaint to the Tea Party wing of the Republicans, at the Vatican, or in countries and cultures subject to Islamic sharia law. And so the conflict in the Vienna of the play between sexual licentiousness and censoriousness has an obvious contemporary topicality, while the play’s broader exploration of the nature of justice is perennially relevant: at the Globe, the production is part of a season under the umbrella theme of “Justice & Mercy.”

October 26, 2015

Machiavelli and Modern Constitutionalism

Mortimer Newlin Stead Seller, University of Baltimore School of Law, has published Niccolò Machiavelli: Father of Modern Constitutionalism as University of Baltimore School of Law Legal Studies Research Paper No. 2015-32. Here is the abstract.
Niccolò Machiavelli is the father of modern constitutionalism. Constitutionalism began anew in the modern world with the study of the ancient republics and it was Machiavelli who inaugurated this revived science of law and politics. Five hundred years after the composition of Il Principe and the Discorsi we are still working out the implications of applying reason to the structures of law and government in pursuit of justice and the common good. Modern constitutionalism and ancient republicanism share three central beliefs: first, that government should serve justice and the common good. Second, that government should do so through known and stable laws. Third, that these will best be secured through the checks and balances of a well-designed constitution. Machiavelli took the theories and experiences of republican Rome and applied them to his own era. This application of reason to constitutional design transformed the politics of emergent modernity and reconfigured government throughout the world.
Download the article from SSRN at the link.

Call For Papers, Inequality and Human Rights Conference, University of Texas Center For Human Rights and Justice

From Julia Dehm, University of Texas School of Law:

Call for Papers

The Bernard and Audre Rapoport Center for Human Rights and Justice at The University of Texas at Austin School of Law invites submissions for an interdisciplinary conference on the theme “Inequality and Human Rights,” to be held April 7-8, 2016.

Since the current global financial crisis began in 2008, income and wealth inequality both within and between countries has come under attack from multiple perspectives. While there is much methodological debate about how best to measure economic inequality globally, many of the figures are alarming. According to a recent report by Credit Suisse, half the world’s wealth is now owned by just 1% of the population, while the least well-off 50% own just 1% of global wealth.

Poverty, wealth and economic inequality are neither natural nor innate. Processes of impoverishment and uneven accumulation are produced, stabilized and sometimes challenged through legal and institutional arrangements, market competition, and social struggles. To date, human rights approaches to social and economic rights have primarily focused on poverty alleviation and the guarantee of basic rights. While not insignificant, these approaches have rarely attended to issues of extreme wealth or the social distribution of wealth.

We invite papers from any discipline that consider whether international human rights law, movements, and discourses have, could or should engage with the problem of economic inequality nationally or internationally. Are human rights frameworks equipped to address economic inequality? Might their promotion foreclose other, more effective, vocabularies and strategies aimed at economic justice? How might human rights frameworks need to change to contribute to a more egalitarian world?

We particularly encourage papers that consider these questions through contextualized examination of key sites of struggles over the distribution of income, benefits, access, decision-making power, and risk exposure. Such sites might include policies and practices around taxation, money and finance, debt (both sovereign and personal), development, natural resources and the environment, education, intellectual property, borders and migration, labor, housing, land ownership, and military intervention. Although our focus is on economic inequality, we also encourage papers that attend to the ways in which it interacts with other forms of inequality, such as those based on gender, race, nationality and physical and mental ability.

Please send an abstract of under 600 words to Julia Dehm (jdehm@law.utexas.edu) by December 1, 2015. A limited number of travel grants are available to support travel costs for selected participants who are unable to receive financial support from their home institutions. If you wish to apply for a travel grant, please complete an application form (available at https://goo.gl/Jk33Ai)

October 23, 2015

Conduct, Speech, and the NLRA

Christine Neylon O'Brien, Boston College School of Management, is publishing I Swear! From Shoptalk to Social Media: The Top Ten National Labor Relations Board Profanity Cases in volume 90 of St. John's Law Review (2016). Here is the abstract.
Waitresses at Hooters got into a swearing match in front of customers over a mandatory bikini competition that was rumored to be rigged. An off duty barista at a New York Starbucks used profanity in a heated conversation with a manager that also took place in the presence of customers. Employees at a Manhattan catering service complained to the director of banquet services about the hostile, degrading, and disrespectful treatment they received from managers. Then, just prior to a National Labor Relations Board (NLRB) election, servers were repeatedly told by their manager to spread out and stop talking to each other. One server posted profane remarks about the manager on his Facebook page while he was on break, including a plea to vote for the union. In other instances, employees profanely commented on social media about their boss’ ineptitude at tax withholding; locked out bargaining unit members made vulgar comments and gestures to those who crossed the picket line; and unionized employees were told not to wear buttons in the presence of customers that contained language that bordered on profanity. All these examples refer to recent unfair labor practice cases that were brought to the NLRB by employees or their unions when employees were terminated for their use of profanity while engaged in concerted activity that was otherwise protected by Section 7 of the National Labor Relations Act (NLRA). This article curates and analyzes ten recent cases involving employee communication laced with profanity. It informs managers and employees of the rules that the NLRB is currently following in this area, and the key factors that the Board weighs when considering whether conduct loses NLRA protection. The paper summarizes these top ten cases in an informative table, and then outlines why the NLRB or an administrative law judge determined the conduct was protected by the NLRA, and, if so, whether that protection was lost because of the egregiousness of the employee’s misconduct. In many of these cases, the Board found employer rules relating to profanity were overbroad because they unduly infringed upon employees’ Section 7 right to communicate about wages, hours, working conditions or matters of mutual aid and support. Cases involving employee dishonesty during an employer investigation into profane or offensive conduct and/or racial or sexual harassment are compared, and important distinctions are made.
Download the article from SSRN at the link.

October 22, 2015

Bartleby, the Annotated

Andrew Kahn annotates (with hypertext links) Herman Melville's Bartleby, the Scrivener for Slate.

A New Book On Belgian Constitutional Law

New from Hart Publishing

The Constitution of Belgium
A Contextual Analysis
Patricia Popelier and Koen Lemmens

The Belgian Constitution, once described as a model of consensus democracy, has now become an enigma in comparative federalism. On the one hand, it demonstrates features which suggest institutional instability as well as elements that enhance the probability of secession. On the other hand, Belgium continues to exist as a federal system, based upon linguistic bipolarity. This linguistic bipolarity dominates Belgian politics and has shaped the design of Belgium’s institutions as well as the Constitution’s fundamental organising principles: concepts of federalism, democracy, separation of powers, constitutionalism and the rule of law.
In this book, the institutional structure and the principles governing the Belgian constitutional system are explained in the light of its historical, demographic and political context. Linguistic bipolarity and its historical evolution explain the establishment of the Belgian State structure as a dual federalism, with exclusive powers, instruments for consensus making and obstruction, and elements of confederal decision making. It also explains the evolution in the concept of principles of democracy and the rule of law. Besides describing the devolutionary process, the book also incorporates two other elements that have shaped the Belgian constitutional landscape: fundamental rights and Europeanisation.

Patricia Popelier is Professor of Constitutional Law at the University of Antwerp.
Koen Lemmens is Associate Professor of Human Rights at the Catholic University of Louvain.

October 2015     9781849464154     312pp     Paperback     RSP: £19.99  


October 21, 2015

How Does the Constitution Mean?

Corey Rayburn Yung, University of Kansas School of Law, has published Constitutional Communication.  Here is the abstract.
Scholars from various normative and positive perspectives endorse the notion that the Constitution is communicative of its meaning. However, there has been little discussion as to what “communication” means in the constitutional context. This Article addresses the communication gap by introducing and applying communication-based concepts and models to constitutional theory. The results of the integration of communication theory into debates about constitutional interpretation are twofold. First, the account in this Article offers a richer framework and vocabulary for ongoing debates about interpretative theory and constitutional meaning. Second, the addition of communication concepts and norms into the debate about constitutional meaning points toward a new approach to interpretation: constitutional contextualism. This flexible approach contends that the constitutional provision being interpreted, and not a pre-selected universal theory, dictates the tools that should be used to analyze it. Significantly, this approach does not seek to negate the dominant theories of constitutional interpretation. In fact, the insights of various originalist and living constitutionalist theories are essential for selecting or synthesizing which interpretive methods are preferable in specific situations. By adopting a flexible, contextual, communication-based approach to identifying the best constitutional meaning in particular cases, we can end the growing fetishization of global interpretive theories and better adapt to the real-world needs of constitutional readers.

Download the article from SSRN at the link.

ABA Seeking Nominations For the Margaret Brent Lawyers of Achievement Award

The American Bar Association is seeking nominations for the Margaret Brent Award. The Award recognizes female attorneys who excel in law and have assisted other women in the field. More information and instructions for making nominations are below. Visit the ABA webpage on the award here.

The Margaret Brent Women Lawyers of Achievement Award, established by the ABA Commission on Women in the Profession in 1991, recognizes and celebrates the accomplishments of women lawyers who have excelled in their field and have paved the way to success for other women lawyers.
Call for Nominations for the
2016 Margaret Brent Awards

Deadline for Nominations -
Friday, December 4, 2015
The 2016 Margaret Brent Women Lawyers of Achievement Awards will be presented on Sunday, August 7, 2016 in San Francisco during the ABA Annual Meeting.
Nomination Criteria and Application RequirementsNomination FormThank You to Our Generous 2015 Supporters2015 Commemorative Program and Tribute Book
Previous Award Recipients
Honorees receiving the Margaret Brent Award have achieved professional excellence in their field and
  • influenced other woman to pursue legal careers,
  • opened doors for women lawyers in a variety of job settings that historically were closed to them, and/or
  • advanced opportunities for women within a practice area or segment of the profession.
 View the list of distinguished award recipients

October 20, 2015

Law, Advertising, Deception, and Free Speech

How much deception do we, should we, tolerate in a free society? From our media? From our lawyers? From ourselves? The latest post from John Denvir's blog Guile is Good: Guile Is Us.

October 16, 2015

"First Thing We Do, Let's Study All the Lawyers"

The Folger Library's current exhibition is The Age of Lawyers in Shakespeare's Britain. It includes a look at law, culture, and literature during the period and runs from September 12, 2015 to January 3, 2016.

Training Law Students and Lawyers In Cultural Sensitivity

Raquel E. Aldana, University of the Pacific McGeorge School of Law, has published Intercultural Legal Sensibility as Transformation. Here is the abstract.
In recent years the transformation of legal practice through globalization and shifting demographics in the United States have made the inherent cross-cultural nature of lawyering more apparent. As a result, law schools are being more intentional about the teaching of intercultural legal sensibility as part of the law school curriculum. This increased interest by U.S. law schools to train lawyers in intercultural legal sensibility calls for careful engagement by legal educators to define what intercultural legal sensibility should mean, to develop methodologies in response to the desired outcomes, and to measure their effectiveness. This article offers a reflection on what it might mean to infuse the teaching of intercultural legal sensibility with the necessary lessons to avoid perpetuating cultural dominance and global power imbalances through law. This process necessarily requires transformation on the part of all who engage globally and cross-culturally. This article explains why there may be a need for transformation and defines the type of transformation that law schools might encourage in future lawyers as part of legal education. The article also provides lessons on the methodology this type of transformational learning requires. The focus is principally on summer abroad programs as well as service learning opportunities that include student immersion in rich cross-cultural exchanges. Finally the article identifies ways to measure the effectiveness of law school programs aiming to teach intercultural legal sensibility by drawing lessons from what other disciplines have done in similar programs for at least half a century.
Download the article from SSRN at the link.

An Early "Thumbs Up" For "Bridge of Spies"

Brendan Sharp reviews Steven Spielberg's new film Bridge of Spies for the ABA Journal here, pointing out that the protagonist, James Donovan (played by Tom Hanks), is an insurance lawyer. Writes Mr. Sharp,

After three grueling years of law school and passing the bar, lawyers often discover that the cases they’d like to tackle aren’t necessarily the ones which put enough food on the table. It’s very difficult to come across and try a case which eventually goes before the highest court in the land, much less one bearing both historical and international significance.
 But for us Walter and Wilma Mittys, it's the kind of story in which we can lose ourselves.

October 15, 2015

Hulu May Debut New "Psychic Drama"

According to the Hollywood Reporter, Hulu, the streaming service that is going "network," seems ready to order a new series from the team that created Breaking Bad.
The new show, to be called Shut Eye, will be about a criminal organization that operates "store front" psychic operations and someone employed within the organization who suddenly develops psychic abilities and then "who finds his cynical world view challenged."

Variety has a little more info about the show here.
It's been a while since we've had a "psychic" show on the air. Psych went off the air in 2014, The Mentalist ceased airing new episodes earlier this year. Both of those shows featured protagonists who worked with law enforcement but either claimed to have psychic ability but were highly observant (Psych) or faked psychic abilities and then used that knowledge to help solve crimes (The Mentalist). Medium and Ghost Whisperer, both shows about psychics who aided law enforcement to solve crimes, aired from 2005 to 2011 and 2005 to 2010, respectively.

October 14, 2015

Eric Wright, Canadian Author of Crime Fiction, Dies

South London (England) born Eric Wright, whose Inspector Charlie Salter crime series set in Toronto is one of the most popular around, has died of kidney cancer. He was 86. Mr. Wright emigrated to Canada in 1951. He earned a B.A. from the University of Manitoba and an M.A. from the University of Toronto, where he settled, teaching at Ryerson Polytechnic University in the English Department, serving as Chair of the Department and as Dean of Arts. He also served a stint as President of the Crime Writers of Canada. Among his other fiction characters were Lucy Trimble and Mel Pickett. In 1998, he won the Derrick Murdoch award, given by the Crime Writers of Canada for excellence in crime writing over a lifetime of work.

More here from the CBC.

His wife, two daughters, a son-in-law, and granddaughter survive him.

Discussing Culture and Comparative Law

Xiangyang Qian, University of Edinburgh, has published Understanding Culture for Comparative Law. Here is the abstract.
Misunderstandings of the concept of culture are responsible for many difficulties in comparative law. A general talk of a culture can only be distorting or empty, any meaningful talk must be based on specific elements of the culture. Cultural elements are different in their relevance to the problem of life and law, and the enquires into cultural influences upon law must therefore be based upon the relevancy of a particular element to a particular law. The insider’s view as the appropriate way to understand a culture is a fallacy; the outsider’s view is the only way possible to understand a culture. It is another common wrong to take culture as purely subjective construction, the objectivity of cultural elements is essential for the proper understanding of a culture and the methodological improvement of comparative law.
Download the article from SSRN at the link.

October 13, 2015

Law and Literature In Discourse: Literature and Legal History

Steven Howe, University of Lucerne, has published Literature and Legal History: A Neglected Dialogue,  Recht und Kultur 3-27(Steven Howe and Jessica C. Lai, Zurich, 2015)(Rechtsgeschichte und Rechtsphilosophie). Here is the abstract.

Recent decades have witnessed a significant surge in critical cultural studies of law and legal phenomena. As cultural theorists and historians have increasingly turned attention to the reality-constituting potential of narratives, symbols, images and rituals, so too has renewed interest come to be placed on the dependencies of law and law-forming processes on cultural and symbolic practices, not only in terms of the intrinsic relation between law, communication and media, but also with regard to the performative figuration of law in imaginative texts. Drawing on such perspectives, the present essay makes the case for a new understanding of the potential value of literature to an integrated cultural history of law. In particular, it aims to show how modern approaches to the study of imaginary and narrative cultures might provide the material for fresh approaches that go beyond a straightforward view of literature as the other of law – that is to say, as a counter-discourse distinct from and exterior to the legal order – and take fuller account of the cross-linkages between the fields of law and literature as circulating discourses and constitutive elements of a shared symbolic system.

Here is a link to the book at the publisher's website.

Legal Research and Doctrinal Analysis In a Legal Studies Program

Vincent Kazmierski, Carleton University Department of Law, has published How Much 'Law' in Legal Studies? Approaches to Teaching Legal Research and Doctrinal Analysis in a Legal Studies Program at 29 Canadian Journal of Law and Society/Revue Canadienne Droit et Société (2013). Here is the abstract.
This article addresses the teaching of legal research methods and doctrinal analysis within a legal studies program. I argue that learning about legal research and doctrinal analysis is an important element of legal education outside professional law schools. I start by considering the ongoing debate concerning the role of legal education both inside and outside professional law schools. I then describe the way in which the research methods courses offered by the Department of Law and Legal Studies at Carleton University attempt to reconcile the tension between “law” and legal studies. In particular, I focus on how the second-year research methods course introduces students to “traditional” legal research and doctrinal analysis within a legal studies context by deploying a number of pedagogical strategies. In so doing, the course provides students with an important foundation that allows them to embrace the multiple roles of legal education outside professional law schools.
Download the article from SSRN at the link.

The Power of Legal Narrative

Jeanne Kaiser, Western New England University School of Law, and Scott Kaiser Brown, University of Minnesota Law School, have published When the Story Is Too Good to Be True: A Lawyer's Role in Resisting the Lure of Narrative at 37 Western New England Law Review 233 (2015). Here is the abstract.
Storytelling is important in legal persuasion. The power of a good story is why an attorney strives to mold the facts of a case into a tale with clear heroes and villains. High profile bullying stories and the reaction to those stories by prosecutors, legislators, and the legal academy provide examples of lawyers’ susceptibility to the power of an emotional narrative. This article explores how social problems, like those relating to Phoebe Prince, Tyler Clementi, and Meagan Meiers, are likely to seem more real and pressing when presented in human terms as opposed to the abstract consequences.
Download the article from SSRN at the link.

October 12, 2015

Call for Nominations: The Penny Pether Award For Law and Language Scholarship 2015

Call for Nominations: The Penny Pether Law and Language Scholarship Award 2015
A passionate advocate for interdisciplinary scholarship in law, literature, and language, Penelope J. Pether was Professor of Law at Villanova University School of Law and former Professor of Law and Director of Legal Rhetoric at the American University Washington College of Law. Her own scholarship focused not only on law, literature, and language, but also on constitutional and comparative constitutional law; legal theory, including constitutional theory; common law legal institutions, judging practices, and professional subject formation.

Beginning in November 2013, the Penny Pether Award for Law & Language Scholarship has been given annually to an article or essay published during the preceding year (September 1 to September 1) that exemplifies Penny’s commitment to law and language scholarship and pedagogy.
The Committee selecting award recipients from among the articles and essays nominated will look for scholarship that not only embodies Penny’s passion and spirit but also has some or all of the following characteristics:
1. “[S]cholarship concerning itself with the unique or distinctive insights that might emerge from interdisciplinary inquiries into ‘law’ grounded in the work of influential theorists of language and discourse.”

2. Scholarship that “attempts to think through the relations among subject formation, language, and law.”

3. Scholarship that provides “accounts of—and linguistic interventions in—acute and yet abiding crises in law, its institutions and discourses.”

4. Scholarship and pedagogy, including work addressing injustices in legal-academic institutions and practices, that is “[c]arefully theorized and situated, insisting on engaging politics and law, [and that] charts ways for law and its subjects to use power, do justice.”

More explanations and descriptions of these characteristics can be found in Penny’s chapter from which these quotations are drawn: Language, in Law and the Humanities: An Introduction (Austin Sarat et al. eds., Cambridge U. Press 2010).

Nominations should be sent by November 13, 2015 to Jeremy Mullem at mullem@law.duke.edu. You are free to nominate more than one work and to nominate work you’ve written. Please provide a citation for each work you nominate.

The Selection Committee includes Linda Berger, David Caudill, Amy Dillard, Bruce Hay, Ian Gallacher, Melissa Marlow, Jeremy Mullem, Nancy Modesitt, and Terry Pollman.

Members of the Selection Committee are not eligible for the award. Jeremy Mullem Clinical Professor of Law Director of Legal Writing Duke University Law School 210 Science Drive Box 90360 Durham, NC 27708 mullem@law.duke.edu (919) 613-7136

Images of Liberty

Steven Douglas Smith, University of San Diego School of Law, has published Constitution Day: 'The Image of Liberty' as San Diego Legal Studies Paper 15-196. Here is the abstract.
This Constitution Day talk compares the state of constitutional governance today to that of the Roman Empire, as famously discussed by the historian Edward Gibbon, and discusses alternative strategies that might be contemplated by those who believe that current American governance does not conform to the requirements of the historical Constitution.
Download the essay from SSRN at the link.