January 29, 2015

Theories of Law

Carla Faralli, University of Bologna, Department of Economics, has published Law as Fact at 24 Revus: Journal for Constitutional Theory and Philosophy of Law 57 (2014). Here is the abstract.

Based on a non-cognitivist meta-ethical position and an anti-subjectivist concept of “reality”, Hägerström questioned the pretension of traditional legal theory, especially legal positivism, to be a science of law, because the entities to which it refers are not real. Olivecrona succeeded in pursuing such a thesis while he tempered it. Taking a socio-psychological approach, he offered a realistic theory of law which is able to emphasize psychical and linguistic phenomena lying at the root of our ideas of rights and duties, which determine what functions they serve in society and how they affect our conduct.

Download the article from SSRN at the link. 

A Review of "The Hanging Judge"

Tigran Eldred, New England Law School, has published Fact and Fiction: The Hanging Judge by Michael Ponsor at 48 New England Law Review on Remand 61 (2014). Here is the abstract.

This essay reviews the debut novel by senior federal judge Michael Ponsor, a tale of the first death penalty case to occur in Massachusetts in more than 50 years.
Download the essay from SSRN at the link. 

The X-Men and the Civil Rights Movement

Gregory Scott Parks, Wake Forest University School of Law, has published 'A Choice of Weapons': The X-Men and the Metaphor of Black Power versus Integrationism. Here is the abstract.

During the 20th Century, the competing ideals and methodologies of the Integrationist and Black Power movements took center stage in African American's quest for social justice and racial equality. There has long been an assumption that the Civil Rights Movement and appeals for integration and to the moral character of whites lead to sweeping social change around issues of race in America. The counter-narrative is that demands for black power forced the hand of the white power structure, that there would be no civil rights without the threat of black power. In his comic book, The X-Men, Stan Lee has taken up this metaphor over the course of several decades. In this work, the author explores this metaphor in an attempt to answer the question: which approach got it right--Magneto or Professor Xavier, Black Power or Integrationism?

Download the paper from SSRN at the link. 

January 28, 2015

Being Jewish, and French, After the Charlie Hebdo Attacks

Richard Weisberg, President of the Law and Humanities Institute, has an op-ed in the January 25, 2014, New York Daily News assessing the current state of anti-Semitism in France. His conclusion? There is extremism at the margins, but peace, and the possibility of peace now and in the future.

And another reflection from Professor Weisberg, on France, the French, and being Jewish in France in 2015, this piece published on January 22, in JTA.

A Popular Italian Television Series That Focuses On Crime and Culture

An op-ed from the New York Times, reviewing and reflecting on the popular Italian crime show Gomorrah. 

January 26, 2015

Metamorphosis and Reflection and M. C. Escher

Michael MacNeil, Carleton University, Department of Law, has published Escherian Reflections on the Charter and Human Rights in Canada. Here is the abstract.

This paper addresses how the body of Canadian human rights law has influenced and is influenced by Charter jurisprudence. It notes the Escherian dialectic between human rights and Charter discourse and some of the problems in developing a coherent Charter/human rights regime in relation to labour rights. It examines the problem of under-inclusion, especially of workers excluded from access to collective bargaining regimes, and notes the failure of the Charter/human rights regime to adequately respond to the claims of some of the most vulnerable workers to participate in schemes that might provide a potential for addressing significant inequalities that they face.
Download the paper from SSRN at the link. 

January 22, 2015

Amherst College Press Announces a New Series Devoted to Law, Literature, and Culture

Announcement of a new publishing initiative:

Laws | Literatures | Cultures
Austin D. sArAt series editor 
Editorial Advisory Board:
Peter Brooks Princeton University
susAn sAge HeinzelmAn University of Texas at Austin
BernADette meyler Stanford University
rAvit reicHmAn Brown University
eric slAuter University of Chicago

The crossroads of  legal scholarship and literary criticism has, over more than forty years of  writing and research, become a busy intellectual intersection. As a ground of  inquiry, law and literature has transformed from a novel set of  proposals to a mature field of  study and writing, with well-established perspectives and positions, courses offered for both undergraduates and law students, and the emergence of  its own journals. Writers who have shaped the field include legal and political theorists, jurists, literary scholars, ethnographers, and historians.

Despite these accomplishments it remains the case, as Kenji Yoshino observed nearly ten years ago, that “law and literature has been caught in limbo for a particularly long time.”1 The early division in the field between law- in-literature and law-as-literature has been exhaustively explored. The time is ripe for the encouragement and
development of  new approaches in the field, pathways offering the possibility of  greater insights and new analyses of challenges confronting societies in a variety of  cultures and legal orders.

Laws, Literatures, and Cultures, a new series supported by the Amherst College Press, will provide a forum for this work. As a digital-first, open-access scholarly publisher, the Amherst College Press offers scholars working at the intersections of  these questions new tools for supporting research and publishing—and the potential of  greatly increased impact through immediate and unfettered access to titles we produce.

In our new series, we are seeking work that will set law, literature, and culture in new dialogues, exploring the textual dimensions and cultural work of  law and the legal frameworks of  literature. Law and literature have for millennia been closely allied, as means of  persuasion and the creation of  cultural norms.  Seting law and literature in juxtaposition permits a mapping from one to the other that often produces startling and important results. In addition, we seek work that draws literary, legal, and/or cultural analysis together in the serviced of  exploring and understanding specific social and political problems and that attends carefully to the exploration of  history.

We also seek work expanding the consideration of  these questions to cultural settings, literary traditions, and legal systems outside the common law. Of  particular interest are works that define and argue a thesis drawing on both textual and non-textual sources for which a multimodal, digital presentation offers unique expressive power.

Laws, Literatures, and Cultures will entertain proposals for works of  all forms, from longer, traditional monograph- length studies to collections of  shorter works. We are open as well to projects with no clear parallel in the print tradition. In the case of  all our works we will subject submissions to a rigorous process of  peer review and evaluation.. Upon release, works will be supported by the Press’s commitment to creating pathways to annotation and comment from the community of  scholars and students engaging with our work. While developed in the first instance as web-based and downloadable digital works, books in the series will also be prepared and released as printed works through a print-on-demand pathway.
For information: acpress@amherst.edu

1 Kenji Yoshino, “The City and the Poet,” Yale Law Journal 114 (2005), 1837.

They're Here......

Peter H. Huang and Corie Lynn Rosen, both of the University of Colorado Law School, are publishing The Zombie Lawyer Apocalypse in the Pepperdine Law Review (forthcoming). Here is the abstract. 

This article uses a popular cultural framework to address the near-epidemic levels of depression, decision-making errors, and professional dissatisfaction that studies document are prevalent among many law students and lawyers today.
Zombies present an apt metaphor for understanding and contextualizing the ills now common in the American legal and legal education systems. To explore that metaphor and its import, this article will first establish the contours of the zombie literature and will apply that literature to the existing state of legal education and legal practice — ultimately describing a state that we believe can only be termed “the Zombie Lawyer Apocalypse”. The article will draw parallels between the zombie state of being — the state of being mindless, thoughtless, and devoid of hope — and the state of some aspects of legal culture and legal education today.
This article will then offer solutions to the problem of legal zombies. Those solutions draw on the positive psychology literature and include 1) mindfulness, 2) a shift in attribution style (the way people think about their experiences), 3) reliance on core strengths, and 4) an effort to developing meaning in work and life. Through the application of these and other interventions, we believe it may be possible to stem the tide of lawyer and law student distress and dissatisfaction and protect future students and lawyers from falling prey to the Zombie Lawyer Apocalypse.
Download the article from SSRN at the link. 

January 21, 2015

Saul's Calling

The Hollywood Reporter has posted this review of the Breaking Bad spinoff Better Call Saul.


Jamie Trinidad, University of Cambridge, has published 'Culturomics' and International Law Research as EUROPEAN SOCIETY OF INTERNATIONAL LAW 10th Anniversary Conference, Vienna, 4-6 September 2014, Conference Paper No. 3/2014. Here is the abstract.

 'Culturomics' is the study of culture through the analysis of millions of digitized texts. It has been pioneered in recent years by a team of Harvard researchers working in conjunction with the Google Books project, which has digitized a significant proportion of all the books ever published. A research tool known as the Google Ngram Viewer allows researchers to search the Google Books database for the occurrence of words and phrases over time. This tool can be used to gain fascinating insights into the cultural phenomena that the words and phrases encode, including - this paper suggests - the types of cultural phenomena that international lawyers are interested in. The paper seeks to illustrate the value of culturomics for international law researchers, and to stimulate ideas for future research. It also highlights some of the problems and pitfalls that accompany cultoromic analysis.
Download the paper from SSRN at the link. 

Law, Emotion, and the Antebellum Constitution

Doni N. Gewirtzman, New York Law School, has published 'Vital Tissues of the Spirit': Constitutional Emotions in the Antebellum United States, in The Ashgate Research Companion to Law and the Humanities in Nineteenth-Century America (Nan Goodman & Simon Stern, Ashgate, 2015). Here is the abstract.

This Chapter provides a framework for examining the ambivalent and reciprocal relationship between emotions and constitutional law through three interrelated lenses: text, instrument, and symbol. In the years before the Civil War, discourse about feelings impacted institutional struggles for interpretive supremacy over the constitutional text, affected the Constitution’s ability to function as a legal mechanism for emotion management, and shaped its status as a national symbol.

Download the essay from SSRN at the link. 

Law, Literature, and the Humanities Association of Australasia Conference, December 9-12, 2015

From Dr. Honni van Rijswijk, Senior Lecturer, Faculty of Law, University of Technology, Sydney, news of an interesting conference, planned for December 9-12, 2015:

Law, Literature and the Humanities Association of Australasia Conference
 University of Technology Sydney Law School, Sydney, Australia
Dates: 9-12 December 2015
(with 9 December as a postgraduate day)
 Complicity is a state of being complex or involved, and no matter where we are, or what we do, law is part of our entanglement in the world. This conference will explore law’s complex relations with culture, politics and capital. It will investigate law as an accomplice, as well as law’s role in shaping (and resisting) certain problematic moral, political and material positions.
 The LLH Association of Australasia invites scholarly and creative research from academics and graduate students working at the intersection of law and the humanities, whether based in legal theory or in disciplines such as literature, art, film, music, history, continental philosophy, anthropology, psychoanalysis, visual culture, or cultural studies. Contributions may take a variety of forms from traditional academic papers to poster presentations, video, or other genres or media.
 The conference invites consideration of the following questions:
 • What does complicity reveal about law’s methods and modes, its affects and effects?
 • How are law’s genres, narratives, processes and images complicit in the creation of particular imaginaries, materialities and practices of the everyday?
 • How might we work within visual, narrative, creative and textual domains and devise strategies to reveal and counter law's complicities, and acknowledge our own?
 We ask you to make your own interpretation of the theme ‘Complicities,’ and invite scholars from a range of disciplines to propose papers, complete panels and streams. Proposals should consist of a short abstract (max. 250 words). Please email your abstract to llh@uts.edu.au. Please include your name and the word Complicities in the subject line.
 Deadline for Stream Proposals: 31 March, 2015
 Deadline for Paper and Panel Proposals: 1 May 2015
 For all conference information including on-line registration, check our web site at this address: http://www.law.uts.edu.au/llhaa And for further information, contact the Co-convenors, Dr Honni van Rijswijk and Associate Professor Penny Crofts.

January 20, 2015

Copyright, Romance Writing, and Gender

Rebecca Tushnet, Georgetown University Law Center, is publishing The Romantic Author and the Romance Writer: Resisting Gendered Concepts of Creativity in Diversity in Intellectual Property (Irene Calboli & Sridlhya Ragavan, eds.; Cambridge University Press (2015). Here is the abstract.

Dominant narratives of creativity regularly expect female-associated forms of creativity to be provisioned naturally without need for the economic incentives provided by exclusive rights, just like housework and childcare. Even as the concept of Romantic authorship has come under sustained analytic assault, its challengers often look elsewhere – to the kinds of creativity in which men are more likely to participate – to find models of situated, always-influenced authorship. In this chapter, I examine one variant of the problem, in which certain arguments about copyright discount the value of forms that are predominantly produced and enjoyed by women. But creative works in these oft-denigrated genres, such as media fandom, open up new possibilities in sexual and gender relations, and women learn to see themselves as valuable speakers by becoming creators. As a result, increasing the visibility of women’s creative works, including explicitly transformative works based on specific copyrighted predecessors, is an important part of rejecting the fetishization of Romantic authorship and valuing diverse kinds of creativity.
Download the essay from SSRN at the link.

Commentaries on "Reading Law"

Micro-Symposium on Scalia & Garner's 'Reading Law', 18 Green Bag 2d 105 (2014). Here is the abstract.

Recently, the Green Bag issued a call for short (1,000 words) essays on Reading Law: The Interpretation of Legal Texts, by Antonin Scalia and Bryan Garner. We sought “[a]ny theoretical, empirical, or practical commentary that will help readers better understand the book.” The result is this micro-symposium. Our call drew dozens of micro-essays, some thought-provoking, some chuckle-prompting, and some both. Blessed with an abundance of good work but cursed by a shortage of space, we were compelled to select a small set – representative and excellent – of those essays to publish in the Green Bag and its sibling publication, the Journal of Law. We regret that we cannot do full justice to the outpouring of first-rate commentary we received. May you enjoy reading the following excellent representatives as much as we did.

Download the papers from SSRN at the link. 

Shouting Fire, Theaters, and Constitutionally Protected Speech

Carlton F. W. Larson, University of California, Davis, has published 'Shouting Fire in a Theater': The Life and Times of Constitutional Law’s Most Enduring Analogy, as UC Davis Legal Studies Research Paper No. 415. Here is the abstract. 

In 1919, Justice Oliver Wendell Holmes introduced the specter of a man falsely shouting fire in a theater into First Amendment law. Nearly one hundred years later, this analogy remains the most enduring analogy in constitutional law. It has been relied on in hundreds of constitutional cases and it has permeated popular discourse on the scope of individual rights.
This Essay examines the both the origins and the later life of Holmes’s theater analogy. Part One is a detective story, seeking to solve the mystery of how Holmes came up with this particular example. This story takes us to the forgotten world of the late nineteenth and early twentieth centuries, when false shouts of fire in theaters were a pervasive problem that killed hundreds of people both in the United States and Great Britain. The person who shouted “fire” in a crowded theater was a recognizable stock villain of popular culture, condemned in newspapers, magazines and books from coast to coast. The analogy, lifted by Holmes from a federal prosecutor in Cleveland, was rooted in this larger world of popular culture. Understanding this world also answers another question: Why do lawyers and non-lawyers alike refer to “shouting fire in a crowded theater” rather than “falsely shouting fire in a theater and causing a panic,” which is what Holmes actually wrote? Along the way, we will encounter a real detective and even a mustachioed villain.
Part Two is based on an empirical study of the 278 subsequent judicial opinions that employ the theater analogy. In lower courts, opinions that invoke the analogy, not surprisingly, typically reject free speech claims, but opinions that paraphrase Holmes are, counter-intuitively, more receptive to free speech claims than opinions that quote Holmes precisely.

The Essay concludes by noting that the theater analogy has largely lost its capacity to frighten in the visceral way that Holmes’s audience would have understood it. Although it persists in constitutional law, it has become rarified and largely abstract, perhaps contributing in some small way to the general libertarian trend of modern First Amendment law.

An intriguing piece.

Download the paper from SSRN at the link. 

January 16, 2015

Calderon de la Barca's El Medico de su Honra, Reputation, and the Criminal Law

José Palacio González, Court of Justice of the European Union, has published El Médico de su Honra (The Doctor of his Own Honor) by Calderón de la Barca: The Honor as a Cause of Exemption of the Penal Responsibility in the Baroque Spain, in volume 4, no. 6 of Oñati Socio-Legal Series, Vol. 4, No. 6, 2014.

Here is the abstract. English Abstract: The notion of honor or reputation is at the very core of the Spanish theatre in the baroque period. This fact could not be correctly understood without taking into consideration the obsession about purity of blood, having got a relevant influence in the Spanish society daily life since the expulsion of the Jewish population and the taking over of Grenade in 1492, as well as the first rank role played by the clerical and political power against the reform movement into the Church. One additional element that should be included into this general frame of reference is the structural inability of the Spanish economy to take off, after the end of the middle-age, in a process leading to a beginning of industrial revolution, with the subsequent assumption of modern values that necessarily would come out of that process. The most telling example of the importance of the idea of honor in the Spanish baroque theatre is, with no doubt, The Doctor of his own honor (El medico de su honra), by Calderón de la Barca, which plot turns around the announced death of an innocent lady suspicioned of adultery, just because of an unhappy sets of events. In the play the jealousy is less determinant for the purpose of the plot that the need for the husband to eliminate any element of uncertainty, as far as his reputation is concerned. The King understands the husband’s motivation and forgives him. Such a conception of honor has left, till very recent times, a major mark in the evolution of the Spanish society, even at a legislative level.

Spanish Abstract: El concepto de honor o reputación es un elemento fundamental en el teatro barroco español. Este hecho no se puede entender correctamente sin tener en cuenta la obsesión por la pureza de sangre, concepto con una influencia relevante en la vida cotidiana de la sociedad española desde la expulsión de la población judía y la conquista de Granada en 1492, así como por el papel fundamental desempeñado por el poder clerical y político contra los movimientos de reforma en la Iglesia. Un elemento adicional que debe incluirse en este marco de referencia es la incapacidad estructural de la economía española para iniciar, al término de la Edad Media, un proceso capaz de establecer las bases de una revolución industrial, con la consiguiente asunción de los valores modernos que necesariamente traería consigo ese proceso. El ejemplo más elocuente de la importancia de la idea de honor en el teatro barroco español es, sin duda, la obra de Calderón de la Barca El médico de su honra, cuya trama gira en torno a la muerte anunciada de una dama sobre la que, a pesar de su inocencia, recae la sospecha de adulterio, únicamente por una serie de hechos desafortunados. En la trama general de la obra los celos juegan un papel menos determinante que la necesidad del marido de eliminar cualquier elemento de duda, en lo que respecta a su reputación. El rey entiende la motivación del marido y lo perdona. Semejante concepción del honor ha dejado, hasta tiempos muy recientes, una marca importante en la evolución de la sociedad española, incluso a nivel legislativo.

Download the article from SSRN at the link.

January 15, 2015

USA Network Benches "Benched"

USA Network has canceled the legal comedy Benched.  Yes, I can hear you making jokes about this one now. The show, starring Eliza Coupe and Jay Harrington, revolves around a corporate lawyer who loses her job and ends up practicing as a public defender. The website has links to complete episodes.

January 14, 2015

Postdoctoral Fellowships Available at Indiana University--Bloomington

From Ethan Michelson, Department of Sociology, Associate Professor and Director of Graduate Studies, and Director of the Center for Law, Society, and Culture at the Indiana University Maurer School of Law, comes this announcement of the:

Jerome Hall Postdoctoral Fellowship at Indiana University-Bloomington
Application deadline extension: Friday, February 6.

The Indiana University Center for Law, Society, and Culture will appoint two post-doctoral fellows for the 2015-16 academic year. We invite applications from scholars of law, the humanities, or social sciences working in the field of sociolegal studies. Pre-tenure scholars, recently awarded PhDs, and those with equivalent professional degrees are encouraged to apply. Advanced graduate students may also apply, but evidence of completion of the doctoral degree or its equivalent is required before beginning the fellowship.

Fellows will devote a full academic year to research and writing in furtherance of a major scholarly project, and will receive a stipend plus a research allowance, health insurance, other benefits, and workspace at the Indiana University Maurer School of Law. They will conduct research at Indiana University and participate in the activities of the Center, which include an annual symposium, a colloquia series, and regular workshops and lectures. (The term of the appointment will be 10 to 12 months, beginning August 1, 2015. The amount of the stipend will be the same regardless of the duration of the appointment.)

For more information about how to apply, please visit: http://www.law.indiana.edu/centers/lawsociety/postdoctoral-fellowship.shtml

A Symposium on the Abolition of War

From Richard Weisberg, President of the Law and Humanities Institute, comes this announcement of a two day symposium on the topic:

WHY HAS WAR NEVER BECOME A TABOO?  This topic and others connected to the experience of war will be explored at a 2-day symposium called "The Abolition of War". Speakers on the first day include Elaine Scarry, Mark Kurlansky, Richard Weisberg, and Stanley Fish. The event will take place at the Cardozo Law School, Moot Court Room, beginning at 9:30 and ending at around 3. It will include lunch to all in attendance as well as an extensive Q & A on the subject involving the audience inter-actively. The remaining panels, which will take place on Feb 21 at the Rutgers Law School in Newark (easily available by Path train from NYC), include "War and Art: Do They Need Each Other?", "Promoting the Alternative to War (or peace-making for Fun and Profit", and a Musical Interlude with talks and performances relating to the theme of Abolition and Pacifism. Speakers include Sarah Cole, Brian Soucek, Paul K. Saint Amour, and Ekow Yankah; Maria Stephan, Krzysztof Wodiczko, and Michael Braff. Performers include Eleanor Cory and Idith Korman, with Cheryl Weisberg singing some folk songs from the French and American traditions. RSVP for further details to ellii.cho@law.cardozo.yu.edu.

The event is organized by the Law & Humanities Institute, the Rutgers Law School, and the Jacob Burns Foundation and the Institute of Holocaust and Human Rights Studies of the Cardozo Law School.

January 13, 2015

Defining Law

Brian Z. Tamanaha, Washington University in Saint Louis School of Law, has published What is Law? as Washington University in St. Louis Legal Studies Research Paper No. 15-01-01. Here is the abstract.

Theorists who tackle “What is law?” usually acknowledge the difficulty of the question, then, with hardly a pause, launch into their proposed answer. Instead, focusing on three main categories of concepts of law, I examine in detail why previous attempts have failed to achieve a consensus. Several factors have contributed. One source of disagreement involves clashes among intuitions about law. Further problems are created by the narrowness of functional analysis, on which nearly all concepts of law are based. Confusion also arises because law shares basic characteristics with many social institutions, as I show drawing on insights from the philosophy of society. Theorists also typically fail to recognize two distinct orientations of law, and multiple forms of law, which singular concepts of law cannot accommodate. Finally, variability and change owing to the social-historical nature of law defeats efforts of legal philosophers to identify essential features and universally true concepts of law. At the conclusion I present a way of understanding law that emerges out of the lessons learned from past unsuccessful efforts.
Here are the topic headings in the essay: Three Categories of the Concept of Law; Pivotal Role of Intuitions About Law; Over-Inclusiveness of Functionalism; Under-Inclusiveness of Functionalism; Why Functionalism Cannot Answer ‘What is Law?’; Error of Conflating ‘Rule System’ and ‘Legal System’; Law as Part of the Institutional Substrate of Society; State Law’s Two Orientations; Coexisting Multiple Legal Forms; Necessary and Essential Features Or Typical Features; Universal Application Versus Universal Truth; What is Law?
Download the paper from SSRN at the link.