May 31, 2015

Free From Routledge In Honor Of Magna Carta's Anniversary

In honor of Magna Carta's 800th anniversary, Routledge/Taylor & Francis is offering free access to a selection of interesting articles downloads and discounts on purchases, many of which are in the law and humanities category. Check out the offers here; they include Brunilda Pali's Art for Social Change, Luis Gomez Romero's D. H. Lawrence's Plural Jurisprudence, and Timothy D. Peters' "The Force" as Law, among other interesting titles.

Tip of the beret to Eoin O'Dell for the tweet.

May 28, 2015

Supreme Court Justices In Pop Culture

Slate columnist Dahlia Lithwick and her guests discuss the suddenly expanding cottage industry of biopics and other entertainment focusing on Supreme Court Justices, including Ruth Bader Ginsburg, Antonin Scalia, and Clarence Thomas, on episode 18 of Slate's podcast Amicus. More here.

But interest in the Justices, or in the Supreme Court generally, as fodder for pop images, isn't new. Consider John Grisham's thriller The Pelican Brief (1992; filmed 1993 with Julia Roberts and Denzel Washington). The Justices turn up in scenes from The People Vs. Larry Flynt (1996), Recount (2008), and Gideon's Trumpet (1980), as well as any number of other films. At least two scholars, Maxwell Bloomfield, and Laura Ray, have examined the image of the Justices in pop culture; their work is quite instructive. Cites below.

Maxwell Bloomfield, The Supreme Court in American Popular Culture, 4 Journal of American Culture 1 (Winter 1981).

Laura Ray, Judicial Fictions: Images of Supreme Court Justices in the Novel, Drama, and Film, 39 Arizona Law Review 151 (1997).

Law and the Body

Theodore Bennett, University of Western Australia, has published Cuts and Criminality: Body Alteration in Legal Discourse (Ashgate, 2015). Here is a description of the contents from the publisher's website.

This book investigates how and why the criminal law differentiates between different types of body alterations, with particular reference to how they are conceptualised within legal discourse. By drawing connections between types of body alteration that have traditionally been considered separately and discretely, the book allows analytical conclusions to be made about the law's treatment of the general category of 'body alteration' rather than merely about specific types of body alteration. Taking legal discourse as its analytical focus, the author critically examines a number of case studies to determine the techniques and processes by which some body alterations are discursively constructed as legitimate and legally approved, and by which other body alterations are discursively constructed as illegitimate and legally sanctioned. Specifically, the body alterations that are addressed include sadomasochistic injuries; female genital modification and male circumcision; cosmetic surgery, body modification and healthy limb amputation; and sex reassignment surgery and genital 'normalisation' surgery. International in scope, the discursive analysis in the book will be of interest to academics and researchers working in the areas of socio-legal and cultural studies.

May 27, 2015

An Interesting Blog About Mystery and Crime Fiction

Check out Tipping My Fedora, an interesting blog devoted to "mystery, crime and suspense in all media" and run by someone named Sergio. 

Deliberately mysterious?

Tip of the beret to Doug Coulson.

Privacy, Security, and Literature

Daniel Solove (George Washington University Law School) is compiling a list of privacy and security related novels. His first five selections?

Franz Kafka, The Trial (published in 1925 in German, first English translation published in 1937).

George Orwell, Nineteen Eighty-Four (or 1984) (published 1949).

Aldous Huxley, Brave New World (1932).

Herman Melville, Billy Budd (first published 1924, but written in 1888-1891, and left unfinished at Melville's death).

Heinrich Böll, The Lost Honor of Katharina Blum (published in 1974, first English translation 1974).

Professor Solove invites you to email suggestions to him or to post them in the comments section.

A Work From Jordan Abel

Conceptual writer Jordan Abel's poem Warpath appears here. More about the origins of the work (texts are entirely from the public domain) at a Nostrum Remedium post here.

Constitutional History and National Identity In Canada

Eric M. Adams, University of Alberta Faculty of Law, is publishing Canadian Constitutional Identities in volume 38 of the Dalhousie Law Journal. Here is the abstract.
Constitutions are stories nations tell about themselves. Despite the famous declaration in the Constitution Act, 1867 that the “Provinces of Canada…Desire…a Constitution similar in Principle to that of the United Kingdom,” most of Canada’s constitutional history can be understood as the search for a distinctly Canadian constitutional identity. Canadians have always looked to their constitutional instruments to both reflect and produce a particular vision of the nation and its citizens. This article focuses on the search for Canada’s constitutional identity during its first century as a nation, from Confederation until the 1960s. Drawing on a varied array of sources and voices, this article argues that the powerful yearning for identity operated as a driving force in Canadian constitutional law, politics, and culture in an era before the catalytic arrival of the Canadian Charter of Rights and Freedoms.
Download the text of the article from SSRN at the link.

A Review of Richard Dawson's "Justice As Attunement"

Jack L. Sammons, Mercer School of Law, has published The Virtuous Circle of Justice: Richard Dawson's 'Justice as Attunement. Transforming Constitutions in Law, Literature, Economics, and the Rest of Life', in volume 11 of No Foundations: An Interdisciplinary Journal of Law and Justice (2014). Here is the abstract.
This is my review of Richard Dawson's, Justice as Attunement. Here, from the introduction to the review, is a description of the book and of the review. "Although he does not express it in these terms, in approaching justice through attunement Richard Dawson is thinking of justice as a certain form of truth, a way of thinking about it far from common for our time although it may have been common in times past. In doing this, he is trying to make our language reveal that which we have used to conceal for a very long time, and the challenge of this, if not impossible, is certainly daunting. This book then is an act of courage, and to read it well I think you must read it as such. There is no way to say in propositional terms what he wants to say. What he must do instead, if he is to be true to this form of justice, is to offer readers of this alphabetical lexicon not ordinary definitions, but performative ones: carefully chosen unsettling experiences of the words one might wish to use if propositional terms were possible, experiences that, as he puts it, can 'transform' these words and, in doing so, 'transform' his readers in their understanding of justice. In a culture wedded to 'It is what it is!' Dawson, with each word he explores, gently insists: 'No, it isn't'. All this is to say that this is a very difficult book to review. Its form is as a lexicon of twenty-four words, most of which are central to the work of James Boyd White, and also central for Dawson for an 'attunement' to justice. Analogous uses of each word are explored through carefully selected literary, legal, philosophical, political, historical, economic, and other texts in order to determine the word's role in this attunement. Now, doing this as a lexicon is certainly interesting and creative, but it is also straightforward enough. The way in which each entry works, the way each relates to the others, the way each works upon us, and the way all this relates to justice, however, is quite another matter."
Download the text of the review from SSRN at the link.

Legal Historians, Legal Philosophers, and Common Ground

Charles L. Barzun, University of Virginia School of Law, and Dan Priel, York University, Osgoode Hall Law School, have published Jurisprudence and (Its) History in volume 101 of the Virginia Law Review (2015). Here is the abstract.
It is not obvious that philosophers and historians of law should take much interest in the scholarly enterprises of the other. Many legal philosophers understand their task as one of clarifying the meaning of such familiar legal concepts as “right,” “duty,” or “law” by offering analyses of them that purport to be general, abstract, and timeless. Meanwhile, historians tend to be suspicious of speculative claims ungrounded in fact and so often prefer to focus on the concrete, particular features of actual legal regimes.

But surface appearances can deceive. Unlike some other areas of philosophy, the subject matter of jurisprudence is at least partially (if not entirely) a social phenomenon. For this reason, legal philosophers since at least H.L.A. Hart have recognized their task to be a “hermeneutic” one — one which aims to discern or make explicit the “self-understanding” of legal actors. At the same time, legal historians aim not simply to record legal rules that existed at some given point in history, but to unearth the meaning that actual people have attached to law. Perhaps, then, philosophical and historical inquiries about law share the same ultimate scholarly goal and subject matter.

This essay serves as the Introduction to a symposium in the Virginia Law Review that explores just this possibility. Its purpose is both to highlight some of the themes common to the symposium’s essays and comments, and, more ambitiously, to suggest that these papers show how philosophers and historians of law might bring their respective disciplinary methods to bear in answering the same kind of question. In particular, both methods are useful for answering questions about what best explains the endurance or disappearance of an idea, theory, or set of concerns in legal thought or practice. Our claim is not that legal historians and philosophers of law should agree in the answers they give to such questions. They will and should often disagree. Rather, our goal is to show how scholars from the two disciplines may plausibly be seen as joining issue in a productive debate, rather than simply talking past one another.
Download the article from SSRN at the link.

The Basics of Narrative

Harold Anthony Lloyd, Wake Forest University School of Law, has published Narrative in Law and Life: Some Frequently Asked Questions in The Second Draft (Fall 2015). Here is the abstract.
This article briefly addresses the following questions: Why should we study narrative? Does narrative have a basic overarching form or forms? How does framing drive narrative? How do concepts drive narrative? What can we do when we lack the necessary concepts for the narrative we need to tell? Are there basic storylines that repeat? Are there basic character types that we reuse? Can narrative drive the results of a Supreme Court case? Can narrative drive transactional practice? How does narrative's importance underscore the importance of an education in the humanities?

Download the text from SSRN at the link.

May 26, 2015

The Scholarship of Andrew Taslitz

Susan A. Bandes, DePaul University College of Law, has published Taz and Empathy in volume 58 of the Howard Law Journal (2015). Here is the abstract.
This article, written for the Taslitz Galaxy Conference at Howard Law School celebrating the life and work of Andrew Taslitz (Taz), will explore the elusive concept of empathy, the notion of empathic divides, and the challenges of empathic accuracy, and will discuss Taz’s scholarship as an ongoing project of bridging empathic divides. Taz's project took many interrelated forms. One primary focus was on the dynamics of cognitive bias and self-deception, drawing on psychology, neuroscience and related disciplines. Taz’s scholarship keeps coming back to the question of the barriers to understanding the narrowness of one’s own perspective, and the barriers to grasping the different frameworks employed by others. It focuses, to take a few examples, on racial blindsight, gender bias, status quo bias, tunnel vision, the bias against the poor, harmful rape narratives, and the self-deception that can lead to date rape. Another primary focus is on identifying institutional reforms that will aid in overcoming these barriers. Empathy, along with respect for the dignity of others (another of his scholarly themes) were not only a primary focus of Taz's scholarship, but also the hallmarks of his relationships with others. He was the rare person whose scholarship and life were of a piece.
Download the article from SSRN at the link.

From Dracula To Blade Runner

Sarah Marshall discusses the history and influence of Bram Stoker's Dracula here for Lapham's Quarterly.   Ms. Marshall compares the Dracula story and the immigrant narrative, but I think it also prefigures the alien invasion narrative, in which the invader takes on the coloration and the habits of the locals and blends in so successfully that they believe they cannot defeat him.

After his emigration on the doomed Demeter, Dracula terrorizes the novel’s narrators not just by his predation of their women, but by his mastery of English accent and mannerisms, and his accrual of English property. Yet he has made this desire for complete absorption into English life clear from the beginning: in one of the book’s most telling and oddly poignant moments, Jonathan Harker enters Dracula’s study and finds him “lying on the sofa, reading, of all things in the world, and English Bradshaw’s Guide”—a railway timetable.

Dracula’s obsession with mastering even the most inconsequential habits of English life, and his almost solicitous insistence on his own incompetence as a counterfeit Englishman, tinges his villainy with something both more complicated and more commonplace than horror: Dracula is a supernatural potboiler, but it is also an immigrant’s story. In Dracula’s desire to master his adopted tongue, we can find evidence of his sinister dissembly, but we can also, if we wish to, envision a rather more endearing figure, and a deeply human one. Stoker’s Count is a man casting off the caul of an inhospitable homeland, seeking acceptance in a new country by following its demands, and becoming—as the saying would later go—more English than the English.
Surely this kind of "dissembly" as Ms. Marshall puts it is the stuff of enduring sf terror, as we find it in such films as The Thing, I Married a Monster From Outer Space, and Invasion of the Body Snatchers, and their various remakes, as well as works by Philip K. Dick and other masters, in which we cannot tell the "real humans" from the android "imposters."  Keep watching the skies, the ships, the pods, the replicants, your dreams...

David Hoffman and American Legal Ethics

Michael S. Ariens, St. Mary's University School of Law, has published Lost and Found: David Hoffman and the History of American Legal Ethics, in volume 67 of the Arkansas Law Review (2014). Here is the abstract.
David Hoffman was a successful Baltimore lawyer who wrote the first study of American law in 1817 and authored the first maxims of American legal ethics. Yet for more than a century after his death, Hoffman was a forgotten figure to American lawyers. Beginning in the late 1970s, Hoffman was re-discovered, and his writings on legal ethics have been favorably cited.

How and why was Hoffman “lost” to American law for over a century, and why he was “found”? Hoffman was lost to history because his view of ethics was premised on republican virtue, specifically the concept of honor. A lawyer acted honorably if his actions were morally sanctioned. Thus, Hoffman concluded a lawyer should refuse to plead the statute of limitations because, though legal, such action was dishonorable. When Hoffman wrote his maxims of legal ethics, the concept of honor was being displaced by individualism. The test of lawyer behavior became private conscience rather than public honor. This turn was accompanied by a second shift, in which lawyers accepted that legal ethics differed from public morality. Though an “officer of the court,” the lawyer’s foremost duty was to serve his client’s private interests, and the lawyer was not morally accountable to the public for the client’s goals. One consequence of these changes was the profession’s agreement that lawyers owed a duty to their clients to plead all legal claims and defenses. This vision left Hoffman behind.

Hoffman was found in response to a crisis within the modern American legal profession. By the late 1970s, many lawyers feared that the liberal ideal of the lawyer as a morally neutral, zealous agent (or “hired-gun”) effectuating a client’s goals ignored the lawyer’s duties to the public. This crisis was exacerbated by two events: Watergate, in which lawyers blindly followed the demands of their client, the President, to society’s detriment, and the ABA’s decision in 1978 to replace its 1969 Code of Professional Responsibility, because the Code embraced the “fiction” that ethical issues were “matters of ethics rather than law.” Because Hoffman concluded a lawyer’s duty to a client was limited by his duties to society, he was used as a relevant, historical example of an ethics of advocacy contrary to the “standard conception” of liberal neutrality. Hoffman was a touchstone justifying an ethics of virtue, of lawyers serving the ends of justice, not merely serving their client’s goals.
Download the article from SSRN at the link.

Creating Racial Identity In Early New Orleans

Kenneth R. Aslakson, Associate Professor of History at Union College, has published Making Race in the Courtroom: The Legal Construction of Three Races In Early New Orleans (NYU Press). Here is a description of the book's contents from the publisher's website.

No American city’s history better illustrates both the possibilities for alternative racial models and the role of the law in shaping racial identity than New Orleans, Louisiana, which prior to the Civil War was home to America’s most privileged community of people of African descent. In the eyes of the law, New Orleans’s free people of color did not belong to the same race as enslaved Africans and African-Americans. While slaves were “negroes,” free people of color were gens de couleur libre, creoles of color, or simply creoles. New Orleans’s creoles of color remained legally and culturally distinct from “negroes” throughout most of the nineteenth century until state mandated segregation lumped together descendants of slaves with descendants of free people of color.
Much of the recent scholarship on New Orleans examines what race relations in the antebellum period looked as well as why antebellum Louisiana’s gens de couleur enjoyed rights and privileges denied to free blacks throughout most of the United States. This book, however, is less concerned with the what and why questions than with how people of color, acting within institutions of power, shaped those institutions in ways beyond their control. As its title suggests, Making Race in the Courtroom argues that race is best understood not as a category, but as a process. It seeks to demonstrate the role of free people of African-descent, interacting within the courts, in this process.

Gandhi, Mindfulness, and Law

Nehal A. Patel, University of Michigan, Dearborn, has published Why Lawyers Fear Love: Mohandas Gandhi's Significance to the Mindfulness in Law Movement. Here is the abstract.
Although mindfulness has gained the attention of the legal community, there are only a handful of scholarly law articles on mindfulness. The literature effectively documents the Mindfulness in Law movement, but there has been minimal effort to situate the movement into the broader history of non-Western ideas in the legal academy and profession. Similarly, there has been little recent scholarship offering a critique of the American legal system through the insights of mindfulness. In this Article, I attempt to fill these gaps by situating the Mindfulness in Law movement into the history of modern education’s western-dominated world-view. With this approach, I hope to unearth some of the deep challenges facing a mindful revolution in law that are yet to be widely discussed. In Part I, I introduce the current mindfulness movement in American society. In Part II, I summarize the current Mindfulness in Law movement and the treatment of “Eastern” thought in modern education. I also describe the three levels of change discussed in academic literature: individual, interpersonal, and structural change. In Part III, I discuss how Mohandas Gandhi exemplifies all three levels of change. In Part IV, I offer critical appreciation of the Mindfulness in Law movement by highlighting Gandhi’s insights on structural reform. I conclude that a mindful application of Gandhi’s thought suggests that satyagraha be incorporated into a constitutional framework, thus making legally protected speech out of forms of public-state dialogue that are traditionally ‘extra-legal’ and used disproportionately by marginalized populations.
\ Download the article from SSRN at the link.

Magna Carta and the Proportionality Principle

Craig S. Lerner, George Mason University School of Law, is publishing Does the Magna Carta Embody a Proportionality Principle? in volume 25 of the George Mason University Civil Rights Journal (2015). Here is the abstract.
American scholars often argue that the Magna Carta embodies a “proportionality principle” mandating that the punishment fit the crime. This principle, according to a familiar narrative, found expression centuries later in the English Bill of Rights, which was reproduced another century later in the American Bill of Rights. Justices on the U.S. Supreme Court have claimed the authority of the Magna Carta when infusing the Eighth Amendment with a proportionality principle not immediately evident from its text.

This Essay explores and questions the narrative. The argument that the Magna Carta embodies a proportionality principle seizes upon three Chapters (20 to 22) that provide that a penalty not exceed “the degree of the offense.” Yet these sections exclusively concern the Norman practice of amercements — a penalty imposed for a litany of administrative offenses that were almost never of a criminal nature. Furthermore, given the prevalence of violent crime and the widespread acceptance of cruel punishment, it is implausible to project humanitarian motives onto the authors of Chapters 20 to 22. The Essay concludes with broader reflections on the uses made of the Magna Carta in this year, the 800th anniversary of its sealing. Like virtually every legal document in recorded history, the Magna Carta embodies at some level a proportionality principle. But as jurists purport to extract more meaningful and specific lessons from the Magna Carta on this and other points, their arguments lapse into poor scholarship and hopeless anachronism.
Download the article from SSRN at the link.

Ruth Bader Ginsburg's Legacy

Paul Schiff Berman, George Washington University Law School, has published Ruth Bader Ginsburg and the Interaction of Legal Systems in The Legacy of Ruth Bader Ginsburg in (Scott Dodson, ed.; Cambridge University Press, 2015). Here is the abstract.
The idea of legal pluralism is that law must always negotiate situations when multiple communities and legal authorities seek to regulate the same act or actor. These overlapping jurisdictional assertions may occur because of federalism, or because disputes often cross territorial borders, or because of complicated inter-jurisdictional arrangements, as with Indian tribes in the United States. In all of these situations, judges must develop strategies for determining how best to balance the competing claims of multiple communities: does the law of one community triumph, does the law of the other community triumph, or is there some hybrid solution available?

This Essay surveys some of Justice Ruth Bader Ginsburg’s key writings on the interaction of legal systems, both in law journals and in judicial opinions. This analysis reveals a consistent theme in Ginsburg’s jurisprudence. Across a variety of substantive legal areas, Ginsburg often chooses a path that provides maximum play among the legal systems at issue. Beginning with her earliest scholarly writings, she has tended to oppose doctrines allowing one legal system to block another from adjudicating a dispute, and throughout her later career Ginsburg likewise tends to reject bright-line rules that choose one legal system over another. Instead, she often seems to prefer procedural arrangements that seek accommodation and flexibility in order to ensure that multiple legal systems and a variety of norms and processes are respected. These principles also carry over to Ginsburg’s views about international and transnational law. A committed internationalist, Ginsburg advocates the importance of seeking wisdom from others. This non-dogmatic, deferential approach to plural legal systems characterizes much of her jurisprudence on inter-systemic conflicts, though interestingly such deference does not always apply with as much force in Ginsburg’s opinions concerning tribal communities.

By taking stock of Ginsburg’s navigation of legal pluralism in a set of representative writings, we can better theorize her contribution to a jurisprudential approach that seeks ongoing negotiation in an interlocking world of multiple jurisdictions and multiple legal norms. Just as important, this discussion provides an initial case study for thinking more broadly about possible judicial responses to the reality of legal pluralism.
Download the essay from SSRN at the link.

May 21, 2015

A Deadly Affair

Alexis Coe on the first successful use of the insanity defense in U.S. law, by a U.S. Congressman, no less, after he stood trial for murdering his wife's lover. Read her account here of Daniel Sickles' killing of Philip Barton Key (son of Francis Scott Key) in Lapham's Quarterly. More about the case here at the website Murder by Gaslight.

The lady in question: Teresa Bagioli Sickles (1836-1867). Her mother was the daughter of librettist Lorenzo Da Ponte. She and General Sickles married when she was a teenager and he was in his early thirties.

Selected bibliography:

Brandt, Nat,  The Congressman Who Got Away With Murder (Syracuse: University of Syracuse Press, 1991).

Keneally, Thomas,  American Scoundrel: The Life of the Notorious Civil War General Dan Sickles (NY: Doubleday, 2002).

Also see:

Extended bibliography available here.

May 20, 2015

Sexual Violence, and Game of Thrones

The Washington Post's Alyssa Rosenberg discusses the shocking wedding night rape of character Sansa Stark on the May 17, 2015 episode of HBO's popular show Game of Thrones, and explains why she considers it part of the show's more encompassing narrative of violence and sexual control.

More coverage of the episode and viewer reaction here from the Christian Science Monitor.

Law and Culture Conference Call For Papers: Deadline Extended Until June 30, 2015

The Call for Papers of the Law and Culture Conference, to be held September 10-11 of this year, is open until June 30. More here.

A Symposium On Narrative & Metaphor In the Law

At Stanford Law School, January 30, 2016, a Symposium on Narrative & Metaphor in the Law.

Scheduled speakers are Linda L. Berger (UNLV, Las Vegas, Law School), Peter Brooks (Princeton), Raymond W. Gibbs (UC Santa Cruz), Michael Hanne (University of Auckland, New Zealand), Lawrence Joseph (St. John's University School of Law), Dahlia Lithwick (Slate Magazine), Bernadette Meyler (Stanford Law School), Greta Olson (University of Giessen), Roberto H. Potter (University of Central Florida), L. David Ritchie (Portland State University), Lawrence Rosen (Princeton University), Michael R. Smith (University of Wyoming College of Law), Kathryn M. Stanchi (Temple University School of Law), Simon Stern (University of Toronto Faculty of Law and Department of English), Meredith Wallis (Stanford University), Robert Weisberg (Stanford University), and Katharine Young (Boston College Law School).

Read more about the event here at its dedicated website.

Legal Realism As the Basis For a Law School Curriculum

Robert Rubinson, University of Baltimore School of Law, has published The Holmes School of Law: A Proposal to Reform Legal Education Through Realism at 35 Boston College Journal of Law & Social Justice 33 (2015).
This article proposes the formation of a new law school, the Holmes School of Law. The curriculum of the Holmes School would draw upon legal realism, particularly as articulated by Oliver Wendell Holmes. The proposed curriculum would focus on educating students about “law in fact” — how law is actually experienced. It rejects the idea that legal education should be about reading cases written by judges who not only bring their own biases and cultural understandings to their role, but who also ignore law as experienced, which, in the end, is what law is. This disconnect is especially troubling because virtually all legal education ignores law as experienced by low-income people. The article concludes with responses to anticipated objections to the proposal.
Download the article from SSRN at the link.

Holmes, Emerson, and Agonism

Allen Mendenhall, Auburn University, has published Oliver Wendell Holmes Jr. Is the Use of Calling Emerson a Pragmatist: A Brief and Belated Response to Stanley Cavell at 6 Faulkner Law Review 197 (2014). Here is the abstract.
This essay investigates the relationship between Ralph Waldo Emerson and Oliver Wendell Holmes, Jr. in the context of the common law. Holmes’s Emersonian writings, in particular his dissents, fall within the theoretical framework of agonism, which Harold Bloom refers to as a revisionary and Emersonian “program.” Agonism as a political and aesthetic theory maintains that sites of contestation can be productive rather than destructive; it suggests that confrontational relationships can be at once mutually offsetting and generative. Drawing from the Greek word for an athletic competition, agonism applied to rhetoric underscores the importance of mutuality to conflict: writers struggling against other writers understand and admire, yet seek creatively to outdo and overcome, their competition. The common-law system substantiates this theory insofar as every case answers an anterior case and creates a succession of precedents marked by strong judges and justices struggling against their predecessors. I submit that Emerson and Holmes were both pragmatic champions of descendent agonism, the former in the American literary tradition and the latter in the American common-law tradition that is distinct from its British precursor.
Download the article from SSRN at the link.

A Long Time Ago, In a Jurisprudence Far, Far Away

Cass Sunstein, Harvard Law School, is publishing How Star Wars Illuminates Constitutional Law in the Michigan Law Review. Here is the abstract.

Human beings often see coherence and planned design when neither exists. This is so in movies, literature, history, economics, and psychoanalysis – and constitutional law. Contrary to the repeated claims of George Lucas, its principal author, the Star Wars series was hardly planned in advance; it involved a great deal of improvisation and surprise, even to Lucas himself. Serendipity and happenstance, sometimes in the forms of eruptions of new thinking, play a pervasive and overlooked role in the creative imagination, certainly in single-authored works, and even more in multi-authored ones extending over time.

Serendipity imposes serious demands on the search for coherence in art, literature, history, and law. That search leads many people (including Lucas) to misdescribe the nature of their own creativity and authorship. The misdescription appears to respond to a serious human need for sense-making and pattern-finding, but it is a significant obstacle to understanding and critical reflection. Whether Jedi or Sith, many authors of constitutional law are a lot like the author of Star Wars, disguising the essential nature of their own creative processes. 

Download the article from SSRN at the link.

May 19, 2015

Breaking It Bad In a Law Review

In the New Mexico Law Review, Spring 2015:

New Mexico Law Review Current Issue

Spring 2015, Vol. 45, No. 2

Front Matter
Professional Articles

Discussion here from the Wall Street Journal.

Speaking and Silence: Boy Scouts v. Dale

Mae Kuykendall, Michigan State University College of Law, is publishing Evaluating the Sociology of First Amendment Silence in volume 42 of the Hastings Constitutional Law Quarterly (2015). Here is the abstract.
The First Amendment expressive associational freedom analysis of the 2000 mid-culture-wars case of Boy Scouts v. Dale adopts an understanding of conventions permitting, or mandating, silence and frames them as a basis for constitutional supervision of customs of silence and speech. The holding in Dale allowed the Scouts to exclude openly gay scout masters, despite a New Jersey statute barring such discrimination from a “public accommodation.” The Court explained that organizational rights to exclude an openly gay Scout, whose presence speaks where silence is preferred, would enrich discourse by enabling organizations to claim a shield of silence with which to strengthen the freedom of speech and association that flourishes in voluntary associations. The silence principle, embraced at the time by legal commentators as a win for free speech and the construction of identity, had the dichotomous effect of engendering more elite speech, as among academics, but silencing non-elite speech, that is, among young men excluded from a group that their peer group could join without identity-based barriers. The effect of the teaching by the Court was to affirm a preference for speech and identity silos, in which customs of silencing enjoyed immunity from unwanted messages and in which certain persons could be deemed inherently unwelcome embodiments of a breach of silence. This Article revisits Dale to explore the implications of Dale for civic engagement — for maintaining open civic space for contact and speech as a First Amendment value. Awarding a shield against contact with contrary views and identities disables policy-makers from supporting principles that, on empirical examination, may enrich discourse and enhance overall civic space. The failure of the Court to engage with a sociology of civic space will be examined for its import for the meeting point between social customs of control and the aspiration of the First Amendment to an engaged, expressive citizenry and to the dissemination of knowledge.
Download the article from SSRN at the link.  Cross-posted to Media Law Prof Blog.

Defining "Funny", Protecting Speech

Deadline Extended for Call for Papers for Conference on Issues of Fact, Erasmus School of Law & Erasmus School of History, Leiden University, September 24-26, 2015

The deadline for the call for papers for the Conference on Issues of Fact: The Pathologies of Fact and the Fictitious in Law and the Humanities has been extended to June 21st, 2015. I have re-posted the CFP below.

Call for Papers

Issues of Fact: the Pathologies of Fact and the Fictitious in Law and the Humanities

A three-day conference organized by Jeanne Gaakeer and Frans-Willem Korsten
To be held September 24-26,  2015
Erasmus School of Law & Erasmus School of History, Culture and Communication – Leiden University Centre for the Arts in Society

Deadline application: a proposal of max. 300 words should be sent to before June 21st, 2015.

Truth in law is not written in stone. In all legal systems, actors submit their findings and views on what is to constitute that all-important category called “the facts”, in order to have judgment. What, then, in that process, is “fact” and what is “ficticious”, and how do we “know”? These basic questions draw the attention to both etymology and epistemology: fact as the act of “facere”, the act of giving something a recognizable form is that is in itself a also mode of fiction, a “making up”, in literary narratives as well as, historically, when it comes to postulates of science. To Giambattista Vico, for example, any scientific endeavor is equivalent to knowledge of the way in which things came into being. If we have a strong belief in, and thorough acquaintance with a factum as a man-made thing,  then on this precondition and presupposition we are able to reach a verum, cognition of a truth.
So much is obvious, stating the facts in law is advancing a claim of (referential) truthfulness: “This is what happened” .This means that jurists should bear in mind the influence of their own interpretive frameworks and unconscious choices or preferences on both fact and norm. What is more, ascertaining the facts in the sense of the selection of what may be looked upon as relevant legal facts  is always done literally ex post facto. That too provides a good reason for more research on how a number of facts “out there” come to be regarded as a string of causally connected events with consequences as far as imputation and accountability are concerned, and what factors are influential in the process of the construction and re-construction of (legal) reality. This is acute because the way in which the facts of a case are narrated determines to a large part the outcome of that case.The flipside of the meaning of fiction as noted above  is the fictitious, as the act of pretending, and even willfully deceiving in order to produce a false belief. In the context of law, it leads to injustice, given the reciprocal relation between fact and legal norm, i.e. the always combined effort in law of the perception and assessment of the facts against the background of what the legal norm (including the academic propositions made for it) means.
From the very start of law as we know it, people have tried to meddle with the (meaning of) facts in court cases, - think of the god Apollo in Aeschylus’ Oresteia -, precisely because trials were aimed first and foremost at establishing the facts of what had happened (or what might have happened, in Aristotelian terms) and what that meant. In other words, narrative plays a role in the forensic statement of fact, the narration. Enter fiction, with the danger of the fictitious.
It appears that in the contemporary situation the questions after ‘factuality’ are acute because the powers of the so-called ‘triers of fact’ are confronted with, and perhaps lag behind with, the growing powers of those who benefit from the specific construction, deliberate deceitful fabrications included,  of the facts. The problems involved have been dealt with in many forms of art: literature, theatre, film, the visual arts, participatory forms of art and so on. This conference wants to read how works of art have been dealing with the contemporary issue of factuality in the juridical domain, i.e. to place the factual-fictional distinction in a wider context than that of the original domain.

Five aspects of the matter
The first aspect of factuality concerns the rapid growth and growing complexity of scientific possibilities in establishing the truth of the matter. We would like to consider how works of art have reflected on the ways in which, on the hand, new techniques and technologies have allowed prosecutors, judges and lawyers  alike to make their case on the basis of facts that would have been irretrievable in former circumstances. Yet the flipside is  that the officials working in court often miss the basic expertise to assess the validity of the facts being handed to them. So, for every prisoner being freed after a miscarriage of justice on the basis of results procured by new dna-technologies, there are also cases of miscarriage of justice precisely because scientifically produced facts were either read in the wrong way or did not prove to be that factual. For judges, for example, who are unaccustomed to the specifics of a discipline other than their own, it can therefore be most helpful to gain insight in the way other forms of cognition function. This brings us back to the epistemological debate about the facts and the concept of cognition and knowledge, and reminds us of the distinction, problematic as legal practice shows, between the factum probandum, the fact which is the subject of proof and the factum probans, the fact from the existence of which that of the factum probandum is inferred. Put differently, is there a chain of circumstance “out there” or does (some)one carefully fit together the facts and evidence, and the other established facts and so on and so forth?

The second  aspect of factuality concerns the societal respect for the court’s prerogative to establish the facts. Many works of art have been focusing on the problem that in a growing number of cases people have been declared guilty in the context of a ‘society of the spectacle’, or ‘trial by (social) media’ that thrives on the dynamic of opposing parties that pick their favorite and already appear to know beforehand what the facts of the matter ‘really’ are. For example, in many societies people  suspected of pedophilia are no longer able to live their own lives safely. Or there may be controversial cases that have become the subject of a society’s spectacle as a result of which the judicial outcome of  the case will always lead to a disqualification of the court (or the legal system) by one of the societal parties involved. What happened to the respect for facts in the society of the spectacle?

The third aspect of factuality concerns the growing intertwinement of forms of subjectivity and agency that used to be clearly distinguishable in previous times. A worker handling a machine could be held responsible for using it rightly or wrongly, intentionally or not, because it would be a matter of fact who was doing what. Yet the issue of “who” is it that acts has become acute , for instance, in cases that robots (like cars) have become entities that can make assessments on their own, and decide ‘on their own’, or in the case of devices, as yet a fantasy but a serious one in ambient intelligence, such as ‘Digital-Me’, a personal assistant that impersonates its owner and takes his decisions independently. Here questions of personhood and legal personality come in. A comparable problem concerns the conflation of the machinic with the human, or of animals that are produced technologically.  The question is not so much what all these new forms of bodies can do. The question is: what are they, as a matter of fact? Which works of art have been doing research in this domain, and how did they do it? The paradigm shift in scientific thought that technological advancements have brought about has not yet been fully understood in and by law. New technologies are as yet ‘undecided’ since they are ‘undecidable’ from a legal point of view. As Charles Taylor already in 1991 urged us to do, it is time to reconsider the primacy of instrumental reason in modernity. So one question we have to ask is whether we dominate technology or technology dominates us, given the risk that instrumental reason becomes framed in a project of domination that seriously affects our freedom in the sense of our capacity to remake the conditions of our existence.

The  fourth aspect of factuality that we want to address concerns the inequality of arms and/or imbalance of power between the so-called ‘triers of fact’ and those who aim at fabricating or manipulating the facts. We think here of works of art that focus on different variants of so-called ‘grey zones’ in which things happen that are often impossible to reconstruct on the basis of facts. Secret services may be operative that willfully produce and use grey zones in order to have the ability to act without leaving clear traces. Another example would be all those circumstances where political, juridical, and criminal forces have become intertwined as a result of which the very idea of a system of adjudication, let alone one under the rule of law,  has become so perverted that its principal aim of establishing the facts has become non-existent. A third example would be all those cases where powerful organizations are at work in, and with circumstances in which other actors do not have the financial resources to get the proper legal expertise that would be required to test the facts of the matter, on the view that the fact section of a narrative before a court of law decides the case. A fourth example would be new forms of warfare that might be war crimes but that are hard to assess as such because of missing or basically blurred evidence.

Finally, the overarching question at the meta-level is how to think of a critical response to the current malleability of facts. One specific historical irony, here, may concern the way in which pivotal building blocks of post-structuralism and deconstruction (leading to the so-called establishment of ‘critical legal studies’) have been incorporated by forces of the opposition. The major target of criticism for post-structuralism and deconstruction was the state’s power to ‘make truth’, with the ideologies underpinning it, and in response these approaches focused on the malleability of facts. To read this as a support for principal relativism would be simply wrong. Post-structuralism and deconstruction wanted to break the power grab by ideologies or states as for their ability to define what was fact and what was not. The contemporary situation appears to be far more that the malleability of fact has become part and parcel of an ideology’s or state’s ability to remain in power. So, should we rethink the philosophies underpinning the malleability of facts entirely anew, or should we reframe the critical project of poststructuralism and deconstruction in order to revitalize them? To return to our opening statement, this question is especially acute if we consider the ways in which “facts” have their place in law, but, more importantly,  if we reconsider the question whether facts can be thought of as “objects”, or “the way things are” without considering the cognitive burdens of their disciplinary, conceptual frameworks and underlying assumptions.

Call for papers
We invite contributions from scholars who are working in the interdisciplinary domains of Literature and Law and, more broadly, Law and Humanities in order to include other (interdisciplinary) fields, such as philosophy, law and theatre studies, law and film studies, cultural legal studies, and law and technology.

We invite contributions on one or more of the following  aspects of the matter  on the basis of the following questions:

a.)    Has the establishment of facts become a matter of scientific expertise that, in some sense, lies beyond the horizon of cognition and control of those judging the case?
b.)    Does the court of law’s prerogative to establish the facts still get the respect it once had in a ‘society of the spectacle’, engendered by modern (social) media that pit parties against one another and declare people to be guilty before they have had the ability to defend themselves in a court of law?
c.)    Has the establishment of fact become a matter of juridico-political-societal concern because formerly distinguished and accepted forms of subjectivity have now become mixed or blurred due to recent developments in technology?
d.)   Have the powers of those who manipulate or fabricate facts  grown stronger so that in a growing number of cases, legal and otherwise, the very establishment of what happened has become  almost impossible?
e.)    What would be the philosophical or strategic requirements for a critical response to our contemporary perceptions of the malleability of facts?

Send your proposal of max. 300 words to before June 21st, 2015.

We intend to publish the outcome of the conference and will therefore be working with texts of 3000-5000 words (notes excluded) being sent in beforehand, if your proposal is selected. We envision an event where not so much academic presentations, but discussion or dialogue is primary, so selection will be based on the quality of the proposal to bring in new perspectives or provoke discussion.

May 18, 2015

James Wilson and Popular Sovereignty

Ian C. Bartrum, University of Nevada, Las Vegas, School of Law, is publishing James Wilson and the Moral Foundations of Popular Sovereignty in the Buffalo Law Review. Here is the abstract.
This paper explores the moral philosophy underlying the constitutional doctrine of popular sovereignty. In particular, it focuses on the Scottish sentimentalism that informed James Wilson’s understanding of that doctrine. Wilson, a transplanted Scotsman, was perhaps the nation’s preeminent lawyer in the middle 1780s. He was one of the most important delegates to the Constitutional Convention, one of the nation’s first law professors, and served as Associate Justice on the first Supreme Court. In these capacities, he developed the most sophisticated and coherent account of popular sovereignty among the founding generation. My initial effort is to enrich our understanding of Wilson’s account by revealing its roots in moral sentimentalism.

With these roots established, I am able to offer a historically contextualized normative account of popular sovereignty. I identify two justifications: (1) “free and independent” citizens provide the most reliable epistemological connection to natural law; and (2) the purpose of government is to provide citizens the necessary freedom to make autonomous moral judgments. With these justifications in place, I am able to offer two suggestions on how the structure of popular sovereignty can guide our modern constitutional constructions: (1) The federal government — not the states — should remain the primary and presumptive guardian of individual rights; and (2) we should identify sovereignty, not privacy, as the common theme underlying both textual and unenumerated rights. To that end, the judicial inquiry should focus on whether we can justify a particular intrusion into moral agency in terms of some greater benefit to moral autonomy writ large.
Download the article from SSRN at the link.

Teaching Law With Popular Culture

I'm testing the waters for a collection of essays on teaching the law school curriculum using popular culture (film, tv, graphic novels, comics, other materials). If you are interested in this project, please send expressions of interest to me at this email address.  If you're teaching law using pop culture at the undergraduate level, and interested in such a project, please feel free to email me as well.

christine.corcos at


Changing Minds and the Civil Rights Act of 1964

Linda C. McClain, Boston University School of Law, has published The Civil Rights Act of 1964 and 'Legislating Morality': On Conscience, Prejudice, and Whether 'Stateways' Can Change 'Folkways' as 95 Boston University Law Review 891 (2015). Here is the abstract.
Influential studies, from the 1940s and 1950s, of the problem of prejudice and how to remedy it challenged the famous assertion of nineteenth-century sociologist William Graham Sumner that “stateways don’t change folkways,” and its modern counterparts, “you cannot legislate against prejudice” or “you cannot legislate morality.” Social scientists countered that, although people might initially protest, they would welcome a federal antidiscrimination law that aligned with conscience and closed the gap between American ideals and prejudice, creating new “folkways.” Using examples from the contexts of public accommodations, education, and employment, this Article examines similar arguments made about conscience and “legislating morality” in debates about the Civil Rights Act of 1964 (the “CRA”). Proponents argued that the national conscience demanded such a law because discrimination posed a moral crisis. Proponents and opponents of the CRA differed sharply on the role of federal law in addressing prejudice and discrimination. While proponents recognized the limits of what law could achieve, they argued that the CRA would remove artificial barriers created by segregation that constrained normal or natural human interaction. Opponents defended segregation as natural, Biblical, and part of the created order and warned that the CRA would usher in a dangerous and forced racial intermingling and line-crossing, particularly in marriage. Similar to the social scientists of the late 1940s and 1950s, supporters or the CRA appealed to experience with local and state antidiscrimination law and the World War II-era Fair Employment Practice Committee. The Article concludes with reflections on the present-day implications of this earlier “legislating morality” debate for controversies over LGBT rights and the evident clash between conscience, or religious liberty, on the one hand, and antidiscrimination law and marriage equality, on the other. This Article is part of a symposium, “The Civil Rights Act of 1964 at 50: Past, Present, and Future.”
Download the article from SSRN at the link.

Unintended Consequences--Censorship and Humor

Laura E. Little, Temple University School of Law, is publishing Laughing at Censorship in the Yale Journal of Law and the Humanities. Here is the abstract.
Comedians know from experience, and research supports the proposition, that an audience will predictably laugh when observing a censored statement (whether bleeped or otherwise obscured) – at least where the audience has been primed by the context to interpret the statement as comedic. In a society that condemns censorship as the enemy of our cherished right of free expression, one might reasonably ask how this can be: why is censorship funny? This article begins by canvassing the various forms of censorship humor flourishing throughout United States culture in print, film, television, music, and internet entertainment. The article then probes mainstream condemnation of censorship – observing that individuals, law, and society all benefit from line drawing – even in the context of something as special as freedom of communication. Through the lens of interdisciplinary humor studies as well as First Amendment doctrine, the article explores the notion that the laughter emerging from comedy featuring censorship might be a “tell” that exposes this truth. Many censorship jokes simply ridicule the censor. Others, however, are more nuanced, suggesting that censorship humor might provide unique emotional rewards ranging from a spark emitted from the benign danger of a censored joke, the creative enterprise of imagining what message was – to the comfort of mapping the line between the proper and improper. Audience laughter at censorship humor often appears to derive primarily from pleasure. It might also include a measure of anxiety, fear, and anger. That complexity, however, does not mitigate the possibility that humans occasionally see and enjoy some inherent value of censorship as separating “right” from “wrong.”
Download the article from SSRN at the link.

Professor Little's comments on censorship humor remind me of one of my favorite passages from The Innocents Abroad. In it, Mark Twain discusses his visit to the Jardin Mabille and his experience of that scandalous dance, the "can-can."  "The dance had begun, and we adjourned to the temple. Within it was a drinking saloon, and all around it was a broad circular platform for the dancers. I backed up against the wall of the temple, and waited. Twenty sets formed, the music struck up, and then—I placed my hands before my face for very shame. But I looked through my fingers." Mark Twain, The Innocents Abroad (Hartford, CT: American Publishing Co., 1869), Chapter 14.