March 30, 2016

Poetics and Politics: A New Journal Devoted To Philosophy

A new journal, Poetics and Politics: A Journal for Humane Philosophy.

 In the current volume:

Articles by:

Paul M. Dowling, 'England's Re-formation in King Henry VIII' Full Article PDF

Patrick Martin, 'The Measure of Justice: Isabella’s Recusancy and Two Royal Couples' Full Article PDF |
Martin Thibodeau, 'Hegel on Intention, Action, and Tragedy' Full Article PDF |

Nikolas Prassas, 'Beauty and Theoria in Ruskin's Modern Painters' Full Article PDF |

Mikołaj Sławkowski-Rode, 'The Possibility of Christian Tragedy' Full Article PDF |

Heinze on Sovereign Authority in Shakespearean Political Drama

Eric Heinze, Queen Mary University of London, School of Law, is publishing Foundations of Sovereign Authority: The Example of Shakespearean Political Drama in Shakespeare and Authority (K. Halsey and A. Vine, eds., Palgrave, 2016-17). Here is the abstract.
As post-Renaissance Europe creates modern concepts of statehood and sovereignty, figures like Bodin, Grotius, and Hobbes undertake ‘constructive’, system-building theories of sovereign authority. Dramatists, in the meantime, are de-constructing sovereignty by unsettling the divergent bases of authority and legitimacy claimed for it. Concepts like ‘rule of law’, ‘popular consent’, or ‘natural law’ often serve to characterise rival legitimacy claims, but such concepts’ scope and interrelationships can be vague. This essay proposes a vocabulary and topology of legal and political authority within early modern drama. Two core categories — ‘right’ and ‘duty’ — are introduced to analyse legitimacy claims more precisely. Those, in turn, attach to twin normative claims, identified as legal ‘transcendence’ and legal ‘positivity’. Hence four basic types of legitimacy claims, each constantly defining itself in contrast to the others: ‘transcendent right’, ‘transcendent duty’, ‘positive right’, and ‘positive duty’. As those exercising or seeking power manoeuvre through their various legitimacy claims, they enact the scope and limits of the claims themselves, pointing us towards ‘deconstructive’ theories of sovereign authority.
Download the essay from SSRN at the link.

March 29, 2016

Appleton and Stiritz on Law, Literature, and the Formal and Informal Regulation of Sex

Susan Frelich Appleton, Washington University (Saint Louis) School of Law, and Susan Ekberg Stiritz, Washington University (Saint Louis) College of Arts and Sciences, have published Going Wild: Law and Literature and Sex at 69 of Studies in Law, Politics, and Society 11 (2016) (Special Issue: Feminist Legal Theory). Here is the abstract.

This paper explores four works of contemporary fiction to illuminate formal and informal regulation of sex. The paper’s co-authors frame analysis with the story of their creation of a transdisciplinary course, entitled “Regulating Sex: Historical and Cultural Encounters,” in which students mined literature for social critique, became immersed in the study of law and its limits, and developed increased sensitivity to power, its uses, and abuses. The paper demonstrates the value theoretically and pedagogically of third-wave feminisms, wild zones, and contact zones as analytic constructs and contends that including sex and sexualities in conversations transforms personal experience, education, society, and culture, including law.

 The full text is not available from SSRN.

March 28, 2016

Pop Culture Political Marriages

Caryn James discusses television political spouses for The Hollywood Reporter here.
Of particular interest--those political wives who are also lawyers, like The Good Wife's Alicia Florrick.

March 27, 2016

William Henry Ireland: Poet, Law Clerk, and Forger

A copy of William Henry Ireland's forged "Shakespeare" play, Vortigern, goes on display at the British Library beginning April 15th. When first performed, the play caused quite a lot of debate over its authenticity. More here from the Telegraph.

For more on William Henry Ireland's origins and his history as a forger, poet, and sometime law clerk, see the Smithsonian Magazine. 

And remember, National Poetry Month begins April 1st...

March 24, 2016

Pop Culture Women Lawyers Everywhere!

New law-related shows on offer:

From the WE: Sisters-In-Law. This reality series premieres tonight (March 24) on the WE at 10 p.m., 9 Central time. It features African-American female attorneys based in Houston. Here's coverage from The Electronic Urban Report (EUR).

WE is also offering up Ladies of Law, a reality series about African American female attorneys who practice entertainment law in NY. More here from Deadline: Hollywood. 

Meanwhile, Viola Davis ("How To Get Away With Murder") is involved in a new project, a series based on the career of the dynamic Kym Worthy, chief prosecutor in Michigan's Wayne County. The series, "Conviction," would air on TNT. More here from Deadline: Hollywood. 

Meanwhile, Hayley Atwell ("Captain America") is joining the cast of ABC's tv series centering a female attorney, which is also called "Conviction."

Lots of potential new members of the Popular Culture Lawyers Bar Association!

A New Book on the Inns of Court as Centers of Law and Literary Thought: Winston on Law, Literature, and Politics in the Late Sixteenth Century

Jessica Winston, Professor of English, Idaho State University, is publishing Lawyers at Play: Literature, Law, and Politics at the Early Modern Inns of Court, 1558-1581 (Oxford University Press, 2016). Here is a description of the contents from the publisher's website.
Many early modern poets and playwrights were also members of the legal societies the Inns of Court, and these authors shaped the development of key genres of the English Renaissance, especially lyric poetry, dramatic tragedy, satire, and masque. But how did the Inns come to be literary centres in the first place, and why were they especially vibrant at particular times? Early modernists have long understood that urban setting and institutional environment were central to this phenomenon: in the vibrant world of London, educated men with time on their hands turned to literary pastimes for something to do. Lawyers at Play proposes an additional, more essential dynamic: the literary culture of the Inns intensified in decades of profound transformation in the legal profession. Focusing on the first decade of Elizabeth's reign, the period when a large literary network first developed around the societies, this study demonstrates that the literary surge at this time developed out of and responded to a period of rapid expansion in the legal profession and in the career prospects of members. Poetry, translation, and performance were recreational pastimes; however, these activities also defined and elevated the status of inns-of-court men as qualified, learned, and ethical participants in England's 'legal magistracy': those lawyers, judges, justices of the peace, civic office holders, town recorders, and gentleman landholders who managed and administered local and national governance of England. Lawyers at Play maps the literary terrain of a formative but understudied period in the English Renaissance, but it also provides the foundation for an argument that goes beyond the 1560s to provide a framework for understanding the connections between the literary and legal cultures of the Inns over the whole of the early modern period.

 Cover for 

Lawyers at Play

Schlag on Knowledge Production in Law

Pierre Schlag, University of Colorado Law School, has published The Knowledge Bubble — A Diagnostic for Expertopia. Here is the abstract.
Contemporary legal thought aims at a variety of different objectives: explanation, understanding, interpretation, edification, elucidation, observation, critique, narrative, norm-selection, norm-justification, political action — any of these and more, including all manner of hybrids. In U.S. law schools (particularly the elite schools) there is now an ascendant genre that might be called “knowledge production.” This genre is intellectually sophisticated, technically rigorous, methodologically scrupulous, and theoretically conversant. Its overt aim is to produce a piece of knowledge that is definitive, enduring, and if at all possible, unassailable. The most notable qualities of this genre are expertise and mastery. This essay sets forth a series of challenges and problems for knowledge production. The idea is that knowledge production efforts must successfully negotiate the challenges and problems described herein to successfully achieve their ambitions — the production of knowledge. Nonetheless, most knowledge production efforts in American legal thought seem to be only dimly aware of these challenges and problems. Instead, these difficulties are typically bypassed in order to get on with the knowledge production enterprise. Somewhat vexingly, however, it is precisely the failure to address and negotiate these difficulties that precludes so much knowledge production in law from actually yielding knowledge in any deep sense of the term. The essay concludes with a description of why and how this matters intellectually, aesthetically, economically, morally, politically, and critically.
Download the essay from SSRN at the link.

March 23, 2016

Sarah Palin as a Courtroom TV Judge?

Will Sarah Palin be the next daytime court TV judge? Various media outlets, including The Hollywood Reporter, are reporting that she has signed a deal with production company Warm Springs (Montana), apparently to develop some kind of show like this for the 2017 season.

More here from TV GuideCBS, ABC, and CNN.

The former Republican Vice Presidential candidate and Governor of Alaska continues to be a popular presence in some quarters and has a large Twitter following (1.24 million as of today), but unlike those courtroom TV judges banging a gavel on today's shows, she doesn't have a law degree.

Higdon on Oral Advocacy and Vocal Fry

Michael J. Higdon, University of Tennessee College of Law, is publishing Oral Advocacy and Vocal Fry: The Unseemly, Sexist Side of Nonverbal Persuasion in volume 13 of Legal Communication & Rhetoric: JALWD (2016). Here is the abstract.
In 2015, Naomi Wolf warned that “the most empowered generation of women ever — today’s twentysomethings in North America and Britain — is being hobbled in some important ways by something as basic as a new fashion in how they use their voices.” She was referring to the phenomenon referred to as "vocal fry" — a speech quality in which the speaker lowers her natural pitch and produces a "creaking" sound as she talks. Naomi Wolf is not alone in her warnings; vocal fry has received quite a bit of negative attention recently. Specifically, these critics warn that those who speak in vocal fry are doing themselves great harm by undermining the speakers’ overall perceived effectiveness. In fact, recent studies even lend some support to these arguments, showing that listeners tend to rate those who speak in vocal fry more negatively. The problem, however, is that much of this criticism is directed at young women, and for that reason, some defenders of vocal fry have countered that these criticisms are merely attempts to regulate how women talk. In other words, a preference for speech that does not contain vocal fry is actually motivated by pernicious stereotypes about how women "should" talk. Thus, on the one hand, there are those studies supporting the argument that women who engage in vocal fry are less likely to be perceived positively, yet on the other hand, there exists the very real likelihood that these perceptions are based on gender stereotypes. Accordingly, the question emerges: what should a young woman do? Should she eliminate all instances of vocal fry from her speech so as to maximize her perceived effectiveness as a public speaker if, in so doing, she is reinforcing the very gender stereotypes upon which such preferences are based? Or should she openly confront such stereotypes and employ vocal fry as much as she likes, knowing that, by taking that approach, she is taking the risk that she might be hurting not only herself but also those upon whose behalf she speaks? This essay, by first discussing this background on vocal fry, delves into that very dilemma. It does so specifically in the context of female attorneys given that 1) public speaking is a key component upon which their effectiveness is gauged and 2) to the extent their public speaking is judged to be less than ideal, they are not only harming themselves, but also potentially a client. Finally, in wrestling with this question, these essay hopes to shed light on a bigger concern — specifically, how useful are studies on effective nonverbal behavior when the results of those studies are largely driven by underlying societal prejudice.
Download the article from SSRN at the link.

March 22, 2016

April 17, 2016: Symposium on Forty Years in Law and Literature: A Celebration of a Festscrift for Richard Weisberg at Cardozo Law School

Reminder: Cardozo Law School is hosting Forty Years in Law and Literature: A Symposium to Celebrate a Festscrift for Richard Weisberg.

The symposium will take place April 17, 2016, from 8:15 a.m. to 6 p.m.

Speakers will present papers for discussion on a wide range of topics, including the genesis of Law
and Literature as a field of study, its development as a movement, as well as its proliferation into other scholarly disciplines, such as Holocaust Studies and Constitutional Law.

Speakers include:

Marguerite DeHuszar Allen, convener
Susan Noakes
Peter Brooks
Greta Olson
Vivian Curran
Michael Pantazakos
Stanley Fish
David A.J. Richards
Todd Grabarsky
Thane Rosenbaum
Sanford Levinson
Jon-Christian Suggs

(with “cameo” appearances as well….)

The event includes lunch and a reception, and is free and open to the public.


March 21, 2016

Hutchinson and Davies on The Memoirs of Sherlock Holmes: "The Field Bazaar"

David Hutchinson, Jenner & Block, LLP, and Ross E. Davies, George Mason University School of Law and The Green Bag, have published The Memoirs of Sherlock Holmes: 'The Field Bazaar' (Illustrated) at 2016 The Green Bag Almanac & Reader 464. Here is the abstract.
Would The Strand Magazine have published “The Field Bazaar” — that odd little 1896 Sherlock Holmes and John Watson vignette — if Arthur Conan Doyle had opted not to give it to The Student magazine at Edinburgh University? I am pretty sure The Strand would have taken the story, gladly. Herbert Greenhough Smith, editor-in-fact of The Strand, liked tales of Sherlock Holmes. But in fact, “The Field Bazaar” did not appear anywhere other than The Student until the mid-1930s. Since then it has floated on the margins of the world of Holmes and Watson, denied not only canonical status, but also original illustration. It has been, really, an orphan work. Canonizing is outside the scope of the Green Bag’s authority (and interest, and competence), but illustrating and publishing are not. So, having both some sympathy for “The Field Bazaar” and some appreciation for the story it tells — whether canonical or comical, it is fun to read — the Green Bag has enlisted an excellent modern illustrator to illuminate it — David Hutchinson.

Download the article from SSRN at the link.

Weinrib on Civil Liberties Lawyering Between the World Wars

Laura M. Weinrib, University of Chicago Law School, is publishing From Left to Rights: Civil Liberties Lawyering between the World Wars in Law, Culture, and the Humanities. Here is the abstract.
In the formative years of the modern First Amendment, civil liberties lawyers struggled to justify their participation in a legal system they perceived as biased and broken. For decades, they charged, the courts had fiercely protected property rights even while they tolerated broad-based suppression of the “personal rights,” such as expressive freedom, through which peaceful challenges to industrial interests might have proceeded. This article focuses on three phases in the relationship between the American Civil Liberties Union (ACLU) and the courts in the period between the world wars: first, the ACLU’s attempt to promote worker mobilization by highlighting judicial hypocrisy; second, its effort to induce incremental legal reform by reshaping social values; and third, its now familiar reliance on the judiciary to insulate minority views against state intrusion and majoritarian abuses. By reconstructing these competing approaches, the article explores the trade-offs — some anticipated and some unintended — entailed by the ACLU’s mature approach.
Download the article from SSRN at the link.

Basedow on One Hundred Years of Comparative Law/Hundert Jahre Rechtsvergleichung

Juergen Basedow, Max Planck Institute for Comparative and International Private Law, is publishing Hundert Jahre Rechtsvergleichung – Von wissenschaftlicher Erkenntnisquelle zur obligatorischen Methode der Rechtsanwendung – (One Hundred Years of Comparative Law – From a Scholarly Source of Knowledge to an Obligatory Method in the Application of Law) in volume 71 of JuristenZeitung (JZ) (2016). Here is the abstract.
Deutsche Zusammenfassung: Als das römische Recht vor einem Jahrhundert in die Rechtsgeschichte relegiert wurde, wuchs in der Wissenschaft in ganz Europa das Bedürfnis für einen neuen Referenzrahmen; ihn versprach man sich vom Vergleich der nationalen Rechte. Im Hintergrund stand hier zunächst das wissenschaftliche Bedürfnis nach der Ausdehnung des geistigen Horizonts und der Erweiterung des Reservoirs an praktischen Lösungen. Doch lässt sich eine allmähliche Transformation der Rechtsvergleichung in eine obligatorische Rechtsanwendungsmethode beobachten. Der Aufsatz zeichnet diese Entwicklung für das allgemeine Völkerrecht, die Menschenrechte, die Konventionen des Einheitsrechts, verschiedene Aspekte des Europarechts und das Internationale Privatrecht nach.

English Abstract: As Roman law was relegated to the field of legal history a century ago, academia across Europe detected a growing need for a new frame of reference; the comparative analysis of national laws was seen as being capable of filling this void. Initially, the development was driven by the need to expand intellectual horizons and to deepen the reservoir of practical solutions. But one could observe comparative analysis gradually transforming into an obligatory method in the application and interpretation of law. The present article traces this development in respect of general public international law, human rights law, and uniform law conventions as well as for various aspects of European law and private international law. Note: This pre-print is published in the Max Planck Private Law Research Paper Series with the permission of the rights owner, Mohr Siebeck. All full-text JuristenZeitung articles are available via pay-per-view or subscription at IngentaConnect, a provider of digital journals on the Internet. Downloadable document is in German.
Download the article from SSRN at the link.

The New Ancient Legal History: A Special Issue of Critical Analysis of Law

Now available: Volume 3, number 1, a special issue of Critical Analysis of Law, focusing on the New Ancient Legal History. Clifford Ando is the guest editor. Below is the table of contents. The publisher has provided PDFs of all articles and book reviews.

The Varieties of Ancient Legal History Today, Clifford Ando

When Law Goes off the Rails: or, Aggadah Among the iurisprudentes, Ari Z. Bryen

Means and End(ing)s: Nomos Versus Narrative in Early Rabbinic Exegesis, Natalie B. Dohrmann

Law, Empire, and the Making of Roman Estates in the Provinces During the Late Republic, Lisa Pilar Eberle

Calculating Crime and Punishment: Unofficial Law Enforcement, Quantification, and Legitimacy in Early Imperial China, Maxim Korolkov

The State of Blame: Politics, Competition, and the Courts in Democratic Athens, Susan Lape

Jewish Law and Litigation in the Secular Courts of the Late Medieval Mediterranean, Rena N. Lauer

The Servitude of the Flesh from the Twelfth to the Fourteenth Century Marta Madero

Consent in Roman Choice of Law William P. Sullivan

Book Forum: Anna Su, Exporting Freedom: Religious Liberty and American Power (2016)

Exceptional and Universal? Religious Freedom in American International Law Peter G. Danchin

Religious Liberty and American Power Saba Mahmood

America, Christianity, and Beyond Samuel Moyn

Saving Faith Anna Su

Special Issue of Studies in Law, Politics, and Society: Feminist Legal Theory

Clare Huntington, Fordham University School of Law, and Maxine Eichner, University of North Carolina, Chapel Hill, School of Law, have published an introduction to Studies in Law, Politics, and Society in volume 69 of Studies in Law, Politics, and Society, Special issue: Feminist Legal Theory (2016). Here is the abstract.
Half a century after the beginning of the second wave, feminist legal theorists are still writing about many of the subjects they addressed early on: money, sex, reproduction, and jobs. What has changed is the way that they talk about these subjects. Specifically, these theorists now posit a more complex and nuanced conception of power. Recent scholarship recognizes the complexities of power in contemporary society, the ways in which these complexities entrench sex inequality, and the role that law can play in reducing inequality and increasing agency. The feminist legal theorists in this volume – Susan Appleton, Katharine Baker, Naomi Cahn, June Carbone, Maxine Eichner, Angela Harris, Jennifer Hendricks, Michelle Oberman, and Susan Stiritz – are emblematic of this effort. They carefully examine the relationship between gender, equality, and power across an array of realms: sex, reproduction, pleasure, work, money. In doing so they identify social, political, economic, developmental, and psychological and somatic forces, operating both internally and externally, that complicate the expression and constraint of power. Finally, they give sophisticated thought to the possibilities for legal interventions in light of these more complex notions of power.
The full text is not available from SSRN. Link to publisher's website.

March 18, 2016

A New Course on Shakespeare and the Law

Tuori on Ancient History and Legal History in the Making of Legal Anthropology

Kaius Tuori, Research Fellow, University of Helsinki, Lawyers and Savages: Ancient History and Legal Realism in the Making of Legal Anthropology (Routledge, 2015).  Here is a description of the book's contents from the publisher's website.

Legal primitivism was a complex phenomenon that combined the study of early European legal traditions with studies of the legal customs of indigenous peoples. Lawyers and Savages: Ancient History and Legal Realism in the Making of Legal Anthropology explores the rise and fall of legal primitivism, and its connection to the colonial encounter. Through examples such as blood feuds, communalism, ordeals, ritual formalism and polygamy, this book traces the intellectual revolution of legal anthropology and demonstrates how this scholarship had a clear impact in legitimating the colonial experience. Detailing how legal realism drew on anthropology in order to help counter the hypothetical constructs of legal formalism, this book also shows how, despite their explicit rejection, the central themes of primitive law continue to influence current ideas – about indigenous legal systems, but also of the place and role of law in development.

Written in an engaging style and rich in examples from history and literature, this book will be invaluable to those with interests in legal realism, legal history or legal anthropology.

Shuy on the Language of Murder Cases

In case you missed it:

Roger W. Shuy, The Language of Murder Cases: Intentionality, Predisposition, and Voluntariness (Oxford University Press, 2014).

  • Describes fifteen murder cases for which Roger Shuy served as an expert language witness
  • Explains the issues at stake in murder trials for lawyers and linguists
  • Examines how vague legal terminology can be clarified by analysis of the language used by suspects, defendants, law enforcement officers, and attorneys

Spoo on Piracy, Publishing, and Copyright

Now in paperback:

Robert Spoo: Without Copyrights: Piracy, Publishing, and the Public Domain (Oxford University Press, 2016). 
  • Provides a thorough historical survey of the impact of U.S. copyright law on transatlantic modernist authors
  • Documents the growth and development across time of the American public domain, as shaped by the historically protectionist and formalistic U.S. copyright law
  • Gives fresh insights drawn from unpublished materials-letters by Joyce, John Quinn, Ezra Pound, Sylvia Beach, John M. Price, and others-and makes extensive use of hitherto unknown legal archives

Sarma on Walter White, Legal Narrative, and the Death Penalty

Bidiah Sarma, University of California (Berkeley) School of Law and the Justice Center's Capital Appeals Project, is publishing Why We Would Spare Walter White: Breaking Bad and the True Power of Mitigation in volume 45 of the New Mexico Law Review (2015). Here is the abstract.
What if Walter White had been captured by the federal authorities? Considering that he committed the murders of many individuals and orchestrated many more in the course of building and running his global meth trade, the prosecution would be able to seek the ultimate punishment against him. But, would a jury give him the death penalty? Walt’s gripping journey stirred within viewers a range of complex emotions, but even those revolted by his actions must concede that it is extraordinarily difficult to envision a random collection of twelve people unanimously agreeing that he deserves a state-sanctioned execution. Indeed, it seems that many of us actually rooted for Walt throughout the series, even when we struggled to understand why. This Essay explores the answer to the question of why we would spare Walter White from the death penalty. Its exploration underscores the critical importance of “mitigation” — a capacious term that refers to evidence introduced by capital defense lawyers to persuade jurors to hand down something less harsh than a death sentence. Breaking Bad, through its masterful construction of its core narrative, situated us to empathize with Walt, to view him as someone we could understand, to feel about him the way we might feel about a friend or colleague or neighbor. Whether we argued vociferously in online forums that his actions were nearly always justified or simply watched with a suppressed but distinct hope that he might emerge as a partially redeemed man, many of us never condemned Walt. We did not want him to die an undignified death at someone else’s hands. In fact, we were relieved that death came to him on his own terms. And, if he had been captured, we would not have sent him to the death chamber. Knowing Walt — understanding his “mitigation” — bent us towards mercy. To start, this Essay explains how a capital trial unfolds and sets out the factors that jurors must take into account when they decide whether to choose death for a convicted capital defendant. After establishing the basic framework for the death-determination in Part I, this Essay focuses on Walter White’s hypothetical penalty phase in Part II. It describes both the “aggravating” evidence the prosecution would use to persuade jurors that death is the appropriate punishment and the “mitigating” evidence the defense would use to persuade jurors that a sentence less than death is appropriate. Part II concludes with an explanation of why a jury likely would not sentence Walter White to die. Part III steps back to identify distinct conclusions that we could draw from viewers’ prevailing willingness to ride with Walt until the end. It concludes that it would be unwise to dismiss Walt as a fictitious outlier. Rather than ask ourselves what makes Walt’s particular case for mercy special, we should ask ourselves how the show managed to make him so real. Breaking Bad’s storytelling proved so powerful that the show’s writers were themselves amazed that viewers continued to stand by Walt’s side through it all. If we would spare Walter White, surely we would spare many others facing capital punishment. But to get there, we need to do more than hear that they have struggles and triumphs of their own; we need to walk with them on their journeys. We must feel like we did when the last episode of Breaking Bad began — wondering exactly how things will end, but unwilling to bring that end by our hands.
Download the article from SSRN at the link.

March 17, 2016

Dunne On Shakespeare, Revenge Tragedy, and Early Modern Law

Derek Dunne has published Shakespeare, Revenge Tragedy and Early Modern Law (Palgrave Macmillan, 2016). Here is a description of the contents from the publisher's website.

Revenge tragedies are filled with trial scenes, miscarriages of justice and untrustworthy evidence, yet this is the first study to explore how the revenge plays of Kyd, Shakespeare and others critically engage with their legal system. Featuring groups of citizens taking the law into their own hands, revenge tragedies stage a participatory justice of their own, which problematises the progress of English common law during this crucial phase of English legal history. By connecting English revenge tragedies to major crises within the legal system including the erosion of trial by jury (Titus Andronicus), food riots in the 1590s (Antonio's Revenge), and debates over royal prerogative (The Revenger's Tragedy) a persistent legal critique is revealed to be at work. The book also offers a major new reading of Hamlet that argues against the play's engagement with law, in contrast to the radical socio-legal commentary identified in other revenge plays. Revenge tragedy can thus be understood as an index of early modern citizens' fractious relationship with their law.           

March 16, 2016

Leggo Our Legos: Lego's Use of Law and Other Mechanisms To Control Its Brand

Dan Hunter, Swinburne Law School and New York Law School, and Julian Thomas, Swinburne University of Technology, have published Lego and the System of Intellectual Property, 1955–2015 at 2016 Intellectual Patent Quarterly 1. Here is the abstract.
This article traces the ways in which Lego has deployed a range of intellectual property regimes since it first developed the Lego system of interlocking bricks in the mid-1950s, in an effort to exert commercial control over its bricks and System of Play. With the bricks initially protected by patent, Lego has, at various times, used copyright, design, trade mark and trade secret laws in an attempt to prevent other firms from marketing competing interlocking bricks. As the patents have expired, Lego has moved from unitary forms of control over the brick, augmenting intellectual property law with more distributed mechanisms of control and governance. The article describes how the law has influenced the broader evolution of the company, where a focus on engineering has broadened into branding, and then digital media.
The full text is not available from SSRN.

Call For Papers: Special Issue of "Signs: Journal of Women In Culture and Society"

Signs: Journal of Women in Culture and Society has issued a Call for Papers for a special issue titled "Displacement."

Signs: Journal of Women in Culture and Society invites submissions for a special issue titled “Displacement,” slated for publication in spring 2018.
The current refugee crisis gives new urgency to questions of gendered displacement. The United Nations’ most recent statistics place the number of registered Syrian refugees at 4.7 million, 50.7 percent of whom are women and over half of whom are children under eighteen. During the same period, tens of thousands of Central American women and children have crossed the Rio Grande into the United States. Feminists have already responded to concerns about sexual violence in refugee camps and during refugees’ journeys and to the gendered response to the crisis on the part of receiving states (i.e., demographic concerns surrounding gender ratios of migrants admitted). What are the larger questions of “displacement” that require an interdisciplinary and transnational feminist lens?
This special issue of Signs seeks submissions reflecting multifaceted, innovative, and interdisciplinary approaches to the question of displacement, as well as the potential for attention to displacement to address and transform central questions in feminist theory, including how feminists approach larger questions of space, place, and subjectivity. Feminist scholars have a long history of engagement with the question of displacement; across disciplines, feminist scholars have described, theorized, and critiqued gendered forms of displacement and how these displacements have shaped and reshaped geopolitics, national borders, political discourses, narrative form, and ethnic and racial formations both contemporarily and historically. Questions of place and belonging have long been at the heart of cultural work in literature, theater, visual culture, and the arts. We invite submissions on the theme of displacement widely conceived and at multiple scales—the subjective, the family, the city; regional, national, transnational, and global.  Possible subjects include:
  • How humanitarian and state responses to displaced persons depend on, reinforce, or transform gendered, racial, and sexual norms.
  • Visual and narrative representations of displacement in relation to gendered and racialized subjectivities.
  • Cultural representations of displacement, migration, belonging, and exile. Critical and historical investigations and comparisons of feminist ideas of these subjects.
  • Reverberations of historical displacements in the contemporary world.
  • Claims to space and place as forms of resistance to displacement or as the basis for social movements (i.e., landless movements, right to the city).
  • Dispossession and displacement as central to neoliberalism, capitalist development, colonization, and slavery. How are dispossession and displacement related?
  • How experiences of displacement reshape constructions of “home” or the nation.
  • Critical assessments of homophobic and gender-based violence as sources of displacement.
  • Gendered figurations of internally and externally displaced persons as threats to national sovereignty or borders. The production of new forms of intimacy through displacement or the creation of new social movements through and in response to displacement.
  • The way that ethical norms and perspectives ignore or undervalue the importance of gender and gendered perspectives with regard to displacement.
Pieces that critically examine or call into question distinctions between migrants, refugees, and internally displaced persons are also welcome.
Signs particularly encourages transdisciplinary and transnational essays that address large questions, debates, and controversies without employing disciplinary or academic jargon. We welcome essays that make a forceful case for why displacement demands a specific and thoughtfully formulated interdisciplinary feminist analysis and why it demands our attention now.  We seek essays that are forceful, passionate, strongly argued, and willing to take risks.
The deadline for submissions is September 15, 2016. Denise Horn, Assistant Professor of Political Science and International Relations at Simmons College, and Serena Parekh, Associate Professor of Philosophy at Northeastern University, will serve as guest editors of the issue.
Manuscripts may be submitted electronically through Signs’ Editorial Manager system at and must conform to the guidelines for submission available at

Miller on Native American Constitutions and Their Influence on the United States Constitution

Robert J. Miller, Arizona State University College of Law, has published American Indian Constitutions and Their Influence on the United States Constitution in volume 159 of the Proceedings of the American Philosophical Society (March 2015). Here is the abstract.
This paper analyzes modern-day American Indian constitutionalism. It describes the development of written constitutions by Indian nations and primarily focuses on constitutions developed since 1934 under the auspices of the federal Indian Reorganization Act. This paper also briefly examines the evidence that American Indian political philosophies, and traditional tribal governmental structures and ideas, influenced many of the Founding Fathers and the drafting of the United States Constitution.
Download the article from SSRN at the link.

March 15, 2016

Oakley on Australian Judicial Humor

Jack Oakley, Clifford Chance, is publishing Banter from the Bench: The Use of Humour in the Exercise of Judicial Functions in volume 41 of the Australian Bar Review (2016). Here is the abstract.
Australians are often said to have a sense of humour that is dry, irreverent and ironic. In such a culture, one might expect those who exercise judicial power to feel at liberty to unleash their wit. Yet most judicial officers in Australia today exercise caution and restraint in using humour in courtrooms and judgments. This stringent attitude is reflected in the paucity of Australian examples of judicial humour, especially in written decisions. However, this conventional view deserves to be challenged. This article assesses whether there is an appropriate role for humour in the exercise of judicial functions in hearing and determining cases. This article considers the primary stakeholders in legal proceedings — litigants, judges, advocates and society-at-large — and examines how their different interests are affected by the use of judicial humour. The article then discusses four arguments in support of judicial humour, namely, that humour is a quintessentially human quality we should expect judges to display; promotes open justice by demystifying the language and rituals of the courtroom; oils the wheels of justice by easing courtroom tensions and aiding digestion of complex written reasons; and serves as a social corrective by allowing judges to gently admonish. Balanced against these considerations is the concern that excessive use of humour may conflict with a judge’s ethical duty to acquit his or her role with independence, integrity, propriety and diligence. In extreme cases, a judge’s use of humour might give rise to an apprehension of bias in discharging judicial functions. The use of humour also has to avoid claims of judicial misconduct. While it is fanciful to suggest that even an egregious use of humour could amount to misconduct that warrants removal from office, it could form the basis of a complaint against a judicial officer, and has done so on occasion. Despite these legitimate constraints on judicial behaviour, the article concludes that humour has a place in the curial process. From time to time the use of humour by judges may be called in question, but judges are chosen for their capacity to judge. Extreme cases aside, we should let humour lie within the sound discretion of the court.
Download the article from SSRN at the link.

David Carlson's New Book on American Indian Law and Literature, Published by the University of Oklahoma Press

David J. Carlson, Professor of English, California State University, San Bernadino, has published Imagining Sovereignty: Self-Determination in American Indian Law and Literature (University of Oklahoma Press, 2016)(American Indian Literature and Critical Studies Series; 66). Here is a description of the contents from the publisher's website.
“Sovereignty” is perhaps the most ubiquitous term in American Indian writing today—but its meaning and function are anything but universally understood. This is as it should be, David J. Carlson suggests, for a concept frequently at the center of various—and often competing—claims to authority. In Imagining Sovereignty, Carlson explores sovereignty as a discursive middle ground between tribal communities and the United States as a settler-colonial power. His work reveals the complementary ways in which legal and literary texts have generated politically significant representations of the world, which in turn have produced particular effects on readers and advanced the cause of tribal self-determination. Drawing on western legal historical sources and American Indian texts, Carlson traces a dual genealogy of sovereignty. Imagining Sovereignty identifies the concept as a marker, one that allows both the colonizing power of the United States and the resisting powers of various American Indian nations to organize themselves and their various claims to authority. In the process, sovereignty also functions as a point of exchange where these claims compete with and complicate one another. To this end, Carlson analyzes how several contemporary American Indian writers and critics have sought to fuse literary practices and legal structures into fully formed discourses of self-determination. After charting the development of the concept of sovereignty in natural law and its permutations in federal Indian policy, Carlson maps out the nature and function of sovereignty discourses in the work of contemporary Native scholars such as Russel Barsh, Gerald Taiaiake Alfred, D’Arcy McNickle, and Vine Deloria, and in the work of more expressly literary American Indian writers such as Craig Womack, Elizabeth Cook-Lynn, Gerald Vizenor, and Francisco Patencio.


Performing the Renaissance Body: A New Collection of Essays Edited by Sidia Fiorato and John Drakakis

Performing the Renaissance Body: Essays on Drama, Law, and Representation (Sidia Fiorato and John Drakakis, eds.; De Gruyter, 2016) (Law & Literature, 11) is available this month. Here is a description of the contents of the book from the publisher's website.
In the Renaissance period the body emerges as the repository of social and cultural forces and a privileged metaphor for political practices and legal codification. Due to its ambivalent expressive force, it represents the seat and the means for the performance of normative identity and at the same time of alterity. The essays of the collection address the manifold articulations of this topic, demonstrating how the inscription of the body within the discursive spheres of gender identity, sexuality, law, and politics align its materiality with discourses whose effects are themselves material. The aesthetic and performative dimension of law inform the debates on the juridical constitution of authority, as well as its reflection on the formation and the moulding of individual subjectivity. Moreover, the inherently theatrical elements of the law find an analogy in the popular theatre, where juridical practices are represented, challenged, occasionally subverted or created. The works analyzed in the volume, in their ample spectre of topics and contexts aim at demonstrating how in the Renaissance period the body was the privileged focus of the social, legal and cultural imagination.

Julia Roberts Cast As Attorney In New Film "Train Man"

Julia Roberts (Erin Brockovich, The Pelican Brief) takes on another law-related movie in Train Man. She'll play Sally Butler, the long-time lawyer for Darius McCollum, who loved to impersonate New York public transit employees in order to drive buses, trains, and subway cars. Mr. McCollum, who has Asperger's was arrested more than 20 times, the first time when he was 15.

The Gotham Group is developing the project; Simon Stephenson is writing the screenplay. More here from The Hollywood Reporter.  Here's more about Ms. Butler's defense of her client, Mr. McCollum, concerning his arrest late last year.

March 14, 2016

Coulson on Legal Oratory in the Processus Sathanae

Doug Coulson, Department of English, Carnegie Mellon University, has published The Devil's Advocate and Legal Oratory in the Processus Sathanae at 33 Rhetorica: A Journal of the History of Rhetoric 409 (2015). Here is the abstract.

Modern readers have been baffled by the combination of legal, dramatic, and theological elements in the 14th century Processus Sathanae, a mock trial drama in which the devil’s advocate and the Virgin Mary employ various Roman law concepts in a courtroom debate regarding the devil’s claim that he was wrongfully dispossessed of humanity. This article examines the Processus Sathanae along with an early source of the drama in a Marcionite creation dialogue and argues that by foregrounding equitable and emotional appeals the drama taught late medieval law students important lessons regarding legal oratory during a crucial period in the development of European jurisprudence. 

Download the article from SSRN at the link.

Schauer on Vagueness In Law

Frederick Schauer, University of Virginia School of Law, is publishing Second-Order Vagueness in Law in Vagueness in Law: Philosophical & Legal Approaches (G. Keil and R. Poscher, eds., Oxford University Press, 2016). Here is the abstract.
Most of the philosophical literature on vagueness starts with the identification of the term whose vagueness is at issue -- tall, short, night, day, bald, tadpole, etc. But in legal interpretation an additional problem arises, because it is not always obvious which term in a legal text, or even which legal text, is the operative one. H.L.A. Hart's idea of a rule of recognition conceptualizes the way in which some second-order rule is necessary to identify which first-order rule is applicable to some form of conduct, but it is often the case that the second-order rule itself exhibits various forms of vagueness. When that is so, vagueness appears as a distinct problem with important but often unrecognized implications.
Download the essay from SSRN at the link.

Murray on Law, Literature, and Courtroom Proceedings

Yxta Maya Murray, Loyola (Los Angeles) Law School, is publishing The Tyranny of Small Things in the Michigan Journal of Race & Law. Here is the abstract.
This legal-literary essay recounts a day I spent watching criminal sentencings in an Alhambra, California courthouse, emphasizing the sometimes quotidian, sometimes despairing, imports of those proceedings. I take leave of the courthouse marshaling arguments that resemble those of other scholars who tackle state overcriminalization and selective enforcement. My original addition exists in the granular attention I pay to the moment-by-moment effects of a sometimes baffling state power on poor and minority people. In this approach, I align myself with advocates of the law and literature school of thought who believe that the study (or, in this case, practice) of literature will aid the aims of justice by disclosing buried yet critical human experience and emotions.
Download the article from SSRN at the link.

March 11, 2016

Gulick on Literature, Law, and Rhetorical Performance in the Anticolonial Atlantic

Anne W. Gulick, Professor of English, University of South Carolina, has published Literature, Law, and Rhetorical Performance in the Anticolonial Atlantic (The Ohio State University Press, 2016). Here is a description of the book's contents from the publisher's website.
The era of national liberation and decolonization may have come and gone, but postcolonialism remains a largely elusive ideal in the early twenty-first century. In Literature, Law, and Rhetorical Performance in the Anticolonial Atlantic, Anne W. Gulick uncovers a dynamic literary history of African and Caribbean critical engagements with First World law. This transatlantic archive attests to the continuing vitality of anticolonialism as a model for intellectual inquiry and political performance. Gulick argues that experimentation with declarative forms is a vital rhetorical strategy in the anticolonial Atlantic—one through which writers have asked: Who gets to “write” the law, and under what circumstances? Responses to this question take shape across the black Atlantic from Haiti to South Africa, in texts ranging from Haiti’s Declaration of Independence and work by C. L. R. James to South Africa’s Freedom Charter, Aimé Césaire’s poem Notebook of a Return to the Native Land, and Ngűgĩ wa Thiong'o’s A Grain of Wheat. These texts constitute a robust transatlantic tradition of challenging colonial and imperial authority through rhetorical performance. Drawing on the cosmopolitan aspirations and emancipatory energies of the political declaration, this tradition aims to radically reinvent the possibilities for law and political belonging in the postcolonial future.

Now available from the Ohio State University Press: The Politics of Ecology: Land, Life, and Law in Medieval Britain

Now available: The Politics of Ecology: Land, Life, and Law in Medieval Britain (Randy P. Schiff and Joseph Taylor, eds.; Ohio State University Press, 2016) (Interventions: New Studies in Medieval Culture). From the publisher's description of the contents:
If medieval literary studies is, like so many fields, currently conditioned by an ecological turn that dislodges the human from its central place in materialist analysis, then why now focus on the law? Is not the law the most human, if not indeed the human, institution? In proposing that all life in medieval Britain, whether animal or vegetable, was subject to the same legal machine that enabled claims on land, are we not ignoring the ecocritical demand that we counteract human exceptionalism and reframe the past with inhuman eyes? This volume, edited by Randy P. Schiff and Joseph Taylor, responds to these questions by infusing biopolitical material and theory into ecocentric studies of medieval life. The Politics of Ecology: Land, Life, and Law in Medieval Britain pursues the political power of sovereign law as it disciplines and manages various forms of natural life, and discloses the literary biopolitics played out in texts that work out the fraught interactions of life and law, in all its forms. Contributors to this volume explore such issues as legal networks and death, Arthurian bare life, Chaucerian medical biopolitics, the biopolitics of fur, ecologies of sainthood, arboreal political theology, conservation and political ecology, and geographical melancholy. Bringing together both established and rising critical voices, The Politics of Ecology creates a place for cutting-edge medievalist ecocriticism focused on the intersections of land, life, and law in medieval English, French, and Latin literature. Randy P. Schiff is Associate Professor of English at SUNY Buffalo. Joseph Taylor is Assistant Professor of English at the University of Alabama in Huntsville.

New In Paperback: Kristin Kalsem's In Contempt: Nineteenth-Century Women, Law, and LIterature

New in paperback from Ohio State University Press: Kristin Kalsem's In Contempt: Nineteenth-Century Women, Law, & Literature. $21.95.

March 10, 2016

Cushman on Vote Fluidity on the Hughes Court, 1934-1936

Barry Cushman, Notre Dame Law School, is publishing Vote Fluidity on the Hughes Court: The Critical Terms, 1934-1936 in the University of Illinois Law Review. Here is the abstract.
This article makes four principal claims. The first is that the justices of the Hughes Court often changed their positions in major cases between the time that they cast their votes in conference and their final votes on the merits. The second is that the Court achieved comparatively high rates of unanimity even during its most turbulent Terms because justices who had served on earlier Courts had internalized a norm counseling those who lost at the conference vote to acquiesce in the judgment of the majority. The third is that the justices who most frequently did so in this period’s major cases were those widely considered to be its most recalcitrant conservatives: James Clark McReynolds and Pierce Butler. The fourth concerns the common claim that Chief Justice Charles Evans Hughes, for the purpose of lending greater credibility to judgments rendered by a divided Court, frequently changed his vote in major cases so as transform what would have been 5-4 decisions into cases decided by a vote of 6-3. This article contends that such a claim finds little support in the sources by which it could be most reliably verified or refuted. Until recently, it would have been quite challenging to substantiate any of these claims. For many years, the docket books kept by a number of the Hughes Court justices have been held by the Office of the Curator of the Supreme Court. Yet the existence of these docket books was not widely known, and access to them was highly restricted. Recently, however, the Court adopted new guidelines designed to increase access to the docket books for researchers. This article offers a report and analysis based on a review of all of the docket books that the Curator’s Office holds from the critical 1934-1936 Terms of the Hughes Court. This review includes sixty-two major decisions concerning the Commerce Clause, the dormant Commerce Clause, substantive due process, equal protection, labor relations, intergovernmental tax immunities, criminal procedure, civil rights, and civil liberties. Analysis of the voting data in the docket books offers a novel contribution to the extensive political science literature on judicial behavior, specifically to the scholarship on vote fluidity and unanimity norms in the Supreme Court.
Download the article from SSRN at the link.

Hunt on Legal Speech and Implicit Content in the Law

Luke William Hunt, University of Virginia, has published Legal Speech and Implicit Content in the Law at 29 Ratio Juris 3 (2016). Here is the abstract.
Interpreting the content of the law is not limited to what a relevant lawmaker utters. This paper examines the extent to which implied and implicit content is part of the law, and specifically whether the Gricean concept of conversational implicature is relevant in determining the content of law. Recent work has focused on how this question relates to acts of legislation. This paper extends the analysis to case law and departs from the literature on several key issues. The paper's argument is based upon two points: (1) Precedent‐setting judicial opinions may consist of multiple conversations, of which some entail opposing implicata, and (2) if a particular precedent‐setting judicial opinion consists of multiple conversations, of which some entail opposing implicata, then no meaningful conversational implicatum is part of the content of that particular precedent‐setting opinion. Nevertheless, the paper's conclusion leaves open the prospect of gleaning something in between conversational implicature and what is literally said, namely, conversational impliciture.
The full text is not available from SSRN.

March 9, 2016

Call for Panelists, Law and Humanities Forum, Modern Language Association Convention, January 5-8, 2017

From Melissa J. Ganz, Marquette University, Department of English:

Please consider submitting a proposal for one of the panels that the Law and the Humanities Forum is sponsoring at the Modern Language Association (MLA) convention next year.  The conference will meet in Philadelphia from January 5-8, 2017.

We are organizing one guaranteed session and two special (non-guaranteed) sessions:

1.  Object Lessons in Personhood (Guaranteed Session) 10-minute papers
on a single “thing.” How do theoretical issues surrounding legal personhood--questions of consent, responsibility, rights, freedom--manifest themselves at the level of substance, form, environment? 150-word abstracts. by 15 March 2016;Kevin Curran  (

 2. Transnational Justice and the Literary Imagination (Non-Guaranteed
 Session) How do imaginative texts explore questions of justice that transcend national borders? Papers on all genres, periods, and regions welcome. 300-word abstract and brief cv by 15 March 2016; Melissa J. Ganz (

 3. The Mexican Legal Code and its Glitches (Non-Guaranteed Session)
 The Mexico & Law and Humanities Sections ask: How might Mexican literature and legal codes illuminate one another? 200-word abstract and one-page cv by 15 March 2016; Emily Hind ( and Peter Lancelot Mallios (

 We hope to see you in Philadelphia next year!
 Best wishes,

 Kevin Curran
 Melissa Ganz
 Peter Mallios
 Imani Perry
 Richard Weisberg

> ---

Lehavi on the Culture of Private Law

Amnon Lehavi, Interdisciplinary Center Herzliyah, Radzyner School of Law, has published The Culture of Private Law. Here is the abstract.
The chief goal of private law is to guide and facilitate interpersonal conduct. In fields such as contracts, property, and corporate governance, lawmakers have an essential normative role of envisioning ideal types of collective action and designing legal and organizational mechanisms that will streamline these types of action, while also giving parties substantial leeway to tailor their interpersonal legal relations. This Article argues that for such a legal design to be effective, regardless of the substantive content of its underlying normative values, lawmakers must consider the actual congruence between the ideal types of collective action envisioned by private law norms and the prevailing cultural orientations, values, and beliefs that practically guide everyday interactions in a certain society or group. To the extent that a private law reform wishes to promote a new type of collective action that is not initially supported by such grassroots forces, it must find ways to enable at least an incremental shift in the relevant cultural traits to facilitate the desired modes of interpersonal collaboration. Rejecting an all-or-nothing approach to cultural change, this Article underscores the key role of collective-action organizations, such as business corporations or homeowner associations, in mediating between private law reforms and incremental cultural shifts.
Download the article from SSRN at the link.

March 8, 2016

Kearley on Roman Law in Twentieth Century America

Timothy G. Kearley, University of Wyoming College of Law, is publishing From Rome to the Restatement: S.P. Scott, Fred Blume, Clyde Pharr, and Roman Law in Early Twentieth-Century America in volume 108 of the Law Library Journal (2016). Here is the abstract.
This article describes how the classical past, including Roman law and a classics-based education, influenced elite legal culture in the United States and university-educated Americans into the twentieth century and helped to encourage Scott, Blume, and Pharr to labor for many years on their English translations of ancient Roman law.
Download the article from SSRN at the link.

The Seccessionist Papers From the Calhoun Review

The Secessionist Papers (Barry Lee Clark et al., The Calhoun Review, 2016) is available. Here is the abstract.
Why is it important to talk about secession? Few people that believe secession is a legitimate political theory, right and recourse also believe that in a practical sense it is achievable, reasonable or even preferable. Devolution is a complicated matter and requires a more or less united political will among a people within a region or area – within the confines of modern America it seems unlikely any such will of a sufficient majority will soon emerge, anywhere. The question thus remains, why even discuss the subject? It is important to honestly discuss the matter because it goes to the very heart of how the Union of States was formed, what the Constitution was to mean and what relation the central government was to have to the people. Many of our contemporary political problems stem directly from a failure to understand foundational principles. Perhaps in engendering more honest discussions about foundational principles we might actually see contemporary problems more correctly.
This publication contains essays by Barry Lee Clark, Brian McCandliss, Walter Block, Thomas E. Woods, Kevin L. Clauson, Kirkpatrick Sale, Forrest McDonald, Gene H. Kizer, Thomas J. DiLorenzo, and Donald W. Livingston.

Getman-Pavlova on The Founders of 16th Century Belgian Realism in Private International Law

Irina Getman-Pavlova, National Research University Higher School of Economics (Moscow) has published The Founders of 16th Century Belgian Realism in Private International Law Doctrine as Higher School of Economics Research Paper No. WP BRP 64/LAW/2016. Here is the abstract.
This article restores to academic circulation the names of representatives of the 16th century Belgian School of Realism, who have been unjustly forgotten in modern Private International Law [PIL] doctrine — Nicolas Everhard, Pieter Peck and Johannes à Sande. These scholars are the founders of the Belgian-Dutch theory of conflicts of laws which anticipated the classic Dutch “comity” doctrine and provided the framework for the Anglo-American doctrine of the regulation of international civil relations. The theory of Belgian realism was first outlined by Everhard, Peck and Sande and was formed on the theory of statutes — the sole doctrine of PIL for 500 years. Belgian Realism is a separate direction in the theory of statutes which triggered the process of a strongly territorial concept of conflict resolution between choice of law rules of different states. However, despite their outstanding contribution to the legal practice and doctrine of their time, these scholars are not known to modern jurisprudence. The article concludes that Everhard, Peck and Sande developed the choice of law rules which are now adopted by modern legislation; moreover, their works may serve to develop international comity doctrine, which has been adopted by modern PIL.

Download the article from SSRN at the link.

March 7, 2016

Goldstein on How the Constitution Became Christian

Jared A. Goldstein, Roger Williams University School of Law, has published How the Constitution Became Christian as Roger Williams University Legal Studies Paper No. 167. Here is the abstract.
Although the Constitution is conventionally portrayed as the embodiment of what it means to be American, it is more accurate to describe the Constitution as the battleground over which disputes over national identity are fought. This article illustrates the dynamics that transform conflicts over national identity into constitutional issues by examining three episodes in the recurring debate over whether the United States should be considered a “Christian nation” — the nineteenth-century movement to add an expression of Christian faith to the Constitution, mid-twentieth-century Judeo-Christian nationalism, and the New Christian Right that began in the 1970s. These episodes reveal that over the past century a shift has occurred among Christian nationalists, who have moved from denouncing the Constitution as a godless document unworthy of a Christian people to lauding the Constitution as an expression of the nation’s Christian identity. This article asks how the Constitution became (for many Americans at least) Christian. The answer lies in America’s constitutional culture, which channels conflicts over national identity into constitutional disputes. The episodes examined here follow a similar pattern. In each case, members of a dominant religious group mobilized in response to perceived threats to their status — from Catholics, immigrants, Communists, and secular humanists. In each episode, members of the movement believed Christian devotion to be part of America’s essence and therefore considered threats to Christian dominance as attacks on America itself. And in each case, the movement attempted to preserve the nation’s supposedly Christian identity by making constitutional demands, either to amend the Constitution to proclaim the nation’s Christian devotion or to interpret the Constitution to be Christian. Through this recurring pattern — in which a threat to group status is seen on nationalist terms and mobilizes a movement to make constitutional demands — fights about what it means to be American become fights over the meaning of the Constitution. Rather than embodying what it means to be American, the Constitution provides a seemingly neutral and patriotic language for making claims of national inclusion and exclusion, for asserting that some people and some values are authentically American, while others are dangerously foreign and must be rejected.
Download the article from SSRN at the link.

Netanel's Introduction to "From Maimonides to Microsoft: The Jewish Law of Copyright Since the Birth of Print"

Neil Weinstock Netanel, UCLA School of Law, has published Introduction to: From Maimonides to Microsoft: The Jewish Law of Copyright Since the Birth of Print, in From Maimonides to Microsoft: The Jewish Law of Copyright Since the Birth of Print (Oxford University Press, 2016). Here is the abstract.
In this book, Neil Netanel traces the historical development of Jewish copyright law. In so doing, he compares rabbinic reprinting bans with secular and papal book privileges and relays the stories of dramatic disputes among publishers of books of Jewish learning and liturgy, beginning with the early sixteenth century and continuing until today. He describes each dispute in its historical context and examines the rabbinic rulings that sought to resolve it. Remarkably, the rabbinic reprinting bans and copyright rulings address some of the same issues that animate copyright jurisprudence today: Is copyright a property right or just a right to receive fair compensation? How long should copyrights last? What purposes does copyright serve? While Jewish copyright law has borrowed from its secular counterpart at key junctures, it fashions strikingly different answers to those key questions.
Download the Introduction from SSRN at the link.

Rossum on Antonin Scalia's Jurisprudence

Ralph A. Rossum, Claremont McKenna College, has published Antonin Scalia's Jurisprudence: Text and Tradition (University Press of Kansas, 2016). Here is a description of the contents from the publisher's website.
Lionized by the right and demonized by the left, Supreme Court Justice Antonin Scalia is the high court's quintessential conservative. Witty, outspoken, often abrasive, he is widely regarded as the most controversial member of the Court. This book is the first comprehensive, reasoned, and sympathetic analysis of how Scalia has decided cases during his entire twenty-year Supreme Court tenure. Ralph Rossum focuses on Scalia's more than 600 Supreme Court opinions and dissents—carefully wrought, passionately argued, and filled with well-turned phrases—which portray him as an eloquent defender of an "original meaning" jurisprudence. He also includes analyses of Scalia's Court of Appeals opinions for the D.C. circuit, his major law review articles as a law professor and judge, and his provocative book, A Matter of Interpretation. Rossum reveals Scalia's understanding of key issues confronting today's Court, such as the separation of powers, federalism, the free speech and press and religion clauses of the First Amendment, and the due process and equal protection clauses of the Fourteenth Amendment. He suggests that Scalia displays such a keen interest in defending federalism that he sometimes departs from text and tradition, and reveals that he has disagreed with other justices most often in decisions involving the meaning of the First Amendment's establishment clause. He also analyzes Scalia's positions on the commerce clause and habeas corpus clause of Article I, the take care clause of Article II, the criminal procedural provisions of Amendments Four through Eight, protection of state sovereign immunity in the Eleventh Amendment, and Congress's enforcement power under Section 5 of the Fourteenth Amendment. The first book to fully articulate the contours of Scalia's constitutional philosophy and jurisprudence, Rossum's insightful study ultimately depicts Scalia as a principled, consistent, and intelligent textualist who is fearless and resolute, notwithstanding the controversy he often inspires.