April 21, 2017

van Rossum on Dutch Legal Culture @wibovanrossum

Wibo M. van Rossum, Erasmus School of Law, has published Dutch Legal Culture in Introduction to Dutch Law, 5th ed. (Jeroen Chorus, Ewoud Hondius, and Wim Voermans, 2017). Here is the abstract.
The chapter argues for a specific concept of legal culture that includes legal ideals, law, legal practice and cultural values. Based on this concept, I characterise dominant traits in Dutch legal culture.
Download the essay from SSRN at the link.

Bodrova and Zubkov on Nikitenko's Diary and the History of Censorship

Alina Bodrova and Kirill Zubkov, both of the National Research University Higher School of Economics, have published From A Historical Source To a Narrative Form: A. V. Nikitenko’s Diary and the History of Censorship as Research Paper No. WP BRP 23/LS/2017. Here is the abstract.
The study explores the narrative structure of Alexandr Nikitenko’s diary, one of the core sources for the history of Russian censorship, and on the role of the genre of anecdote in particular. Through an analysis of the ‘anecdotal’ entries about censorship in Nikitenko’s diary and their evolution (their number peaks during the years of Nicholas I’s reign, and plummets in the parts of the account dealing with Alexander II, particularly in the period of 1860-ies), the authors demonstrate the peculiarities of the ‘anecdotal’ frame in picturing the interactions between literary circles and censorship. The literary form of anecdote, whose strength is in picturing singular oddities and excesses, fails to account for the everyday quality of routine practices, the day-to-day modes of interaction between authors and censors, so that the ‘anecdotal’ narrative can only work as a segment of a more complex and multidimensional vision of how literary agency and censoring authorities interacted.
Download the article from SSRN at the link.

Chin and Ormonde on The War Against Chinese Restaurants

Gabriel "Jack" Chin, University of California, Davis, School of Law, and John Ormonde are publishing The War against Chinese Restaurants in volume 67 of the Duke Law Journal (2017). Here is the abstract.
Chinese restaurants are now a cultural fixture, as American as cherry pie. Startlingly, however, there was once a national movement to eliminate Chinese restaurants, using innovative legal methods to drive them out. Chinese restaurants were objectionable for two reasons. First, they threatened white women, who were subject to seduction by Chinese men, through intrinsic female weakness, or employment of nefarious techniques such as opium addiction. In addition, Chinese restaurants competed with “American” restaurants, thus threatening the livelihoods of white owners, cooks and servers; unions were the driving force behind the movement. The effort was creative; Chicago used anti-Chinese zoning, Los Angeles restricted restaurant jobs to citizens, Boston authorities decreed Chinese restaurants would be denied licenses, the New York Police Department simply ordered whites out of Chinatown. Perhaps the most interesting technique was a law, endorsed by the American Federation of Labor for adoption in all jurisdictions, prohibiting white women from working in Asian restaurants. Most measures failed or were struck down. However, Asians still lost; the unions did not eliminate Chinese restaurants, but they achieved their more important goal, extending the federal policy of racial exclusion in immigration from Chinese to all Asians. The campaign is of more than historical interest. As current anti-immigration sentiments and efforts show, even today the idea that white Americans should have a privileged place in the economy, or that non-whites are culturally incongruous, persists among some. 
Download the article from SSRN at the link.

April 20, 2017

Susan A. Bandes Launches New Website on Law and Emotions @BandesSusan

Susan A. Bandes, Professor of Law, DePaul University College of Law, has launched her new website, which is devoted to the study of emotion in law. Check it out here.

David Pannick on Humo(u)r in the Law: A Book From Hart Publishing (In Case You Missed It) @hartpublishing

ICYMI:

 David Pannick, I Have To Move My Car: Tales of Unpersuasive Advocates and Injudicious Judges (Hart Publishing, 2008).


There are law books about constructive trusts, the Perpetuities and Accumulations Act 1964 and the rule in Foss v Harbottle. This is not one of them. David Pannick QC has always been much more interested in unpersuasive advocates and injudicious judges.

There are law books about constructive trusts, the Perpetuities and Accumulations Act 1964 and the rule in Foss v Harbottle. This is not one of them. David Pannick QC has always been much more interested in unpersuasive advocates and injudicious judges.
In this collection of his fortnightly columns from The Times, David Pannick passes judgement on advocates who tell judges that their closing submissions to the jury will not take long because 'I would like to move my car before 5 o'clock; and he sentences judges who claim to have invisible dwarf friends sitting with them on the Bench, who order the parties to 'stay loose - as a goose', and who signal their rejection of an advocate's argument by flushing a miniature toilet on the bench.
In making his submissions, David Pannick QC will entertain and inform you about judges, lawyers, legal entertainment and unusual litigation. - See more at: http://www.bloomsburyprofessional.com/uk/i-have-to-move-my-car-9781841138169/#sthash.kjtJQ5k0.dpuf






April 19, 2017

Chin and Tu on Comprehensive Immigration Reform in the Jim Crow Era: Chinese Exclusion and the McCreary Act of 1893

Gabriel "Jack" Chin, University of California, Davis, School of Law, and Daniel K. Tu have published Comprehensive Immigration Reform in the Jim Crow Era: Chinese Exclusion and the McCreary Act of 1893 at 23 Asian American Law Journal 39 (2016). Here is the abstract.
This paper discusses the first immigration amnesty, the McCreary Act of 1893, which regularized the status of tens of thousands of Chinese immigrants to the United States. The Chinese migrants became deportable because they failed to register as required by the Geary Act, based on advice of counsel that the law, applicable on racial grounds, was unconstitutional. Nevertheless, in an era in which racial discrimination was more intense today than it is now, and in which Congress had determined that Chinese immigration should end, Congress agreed to let those here remain, on conditions, rather than taking the opportunity to rid the country of Chinese.
Download the article from SSRN at the link.

Kent on The Jury and Empire: The Insular Cases and the Anti-Jury Movement in the Gilded Age and Progressive Era

Andrew Kent, Fordham School of Law, is publishing The Jury and Empire: The Insular Cases and the Anti-Jury Movement in the Gilded Age and Progressive Era in volume 91 of the Southern California Law Review. Here is the abstract.
This article contributes to several debates and literatures, which have not previously been all linked together: the history of the jury in the United States, the nature of U.S. imperialism and colonial governance in Puerto Rico and the Philippines, and Progressive era legal reform. The story starts with the Insular Cases — landmark Supreme Court decisions from the early twentieth century holding that jury rights and some other constitutional guarantees did not apply in Puerto Rico and the Philippines until and unless Congress had taken decisive action to "incorporate" the territories into the union. The conventional wisdom among scholars is that the Supreme Court in these decisions shamefully ratified the U.S. government's discrimination and domination over the peoples of newly-acquired colonies. Racism and cultural chauvinism are blamed as primary causal factors. The article shows that Congress, the executive, the courts, and local legislatures in the Philippines and Puerto Rico granted almost every single right contained in the Constitution to the territorial inhabitants, with the exception of the jury. So while deep, institutional racism was certainly present and causally important, it is also true that U.S. governance in the territories was not a project of wholesale discrimination. Motivations, goals, and outcomes were complex. Protection of rights of local inhabitants was a key concern of U.S. policymakers. But the jury was considered a unique case, different than other rights. To understand why the jury was thought uniquely unsuited for the new U.S. colonies, this article fills out a largely overlooked history of the jury in the mainland United States during the Gilded Age and Progressive Era. Most histories of the jury skip from the adulation of the institution at the Founding, to the Warren-Burger Courts' decisions over 150 years later that racial and gender discrimination in jury service were unconstitutional and that the criminal petit jury was a fundamental right. It turns out that the late nineteenth and early twentieth centuries saw severe criticism of the jury by elite lawyers, the newly-created bar associations in big cities, the reformist popular press, and progressive movement leaders. Many states cut back on jury rights at the time. And the Supreme Court held then that states should not be forced to "straight jacket" themselves (in the Court's words) to the common law procedure of old England that was found in the Bill of Rights, but should be free to experiment to create more efficient criminal and civil procedure. Leaders of the anti-jury reform movement in the United States were also leading policymakers for colonial issues in Puerto Rico and the Philippines, notably William Howard Taft. Many of the same arguments against the jury were made in both contexts. Linking the anti-jury movement to the legal and political decision-making about governance of the new territories helps enrich our understanding of both.
Download the article from SSRN at the link.

A New TV Mystery Pilot Headed To TNT

The cable network TNT is ordering a pilot from Bruna Papandrea, executive producer of Big Little Lies. The pilot, Deadlier Than the Male, will be a "new style of mystery drama," according to TNT V.P. of original programming Sarah Aubrey. It will focus on the perpetrator's motive. Should be interesting.

More here from The Hollywood Reporter. 

April 18, 2017

Muller on Coercion and Accommodation: WRA Attorneys and the Japanese-American Internment Camps

Eric L. Muller, University of North Carolina, Chapel Hill, School of Law, has published Of Coercion and Accommodation: Looking at Japanese American Imprisonment Through a Law Office Window at Law and History Review 1 (March 2017). Here is the abstract.
Crucial to the implementation of the War Relocation Authority’s (WRA) regulations of its detention camps for the uprooted Japanese American community of the West Coast were the WRA “project attorneys,” white lawyers stationed in the camps who gave legal advice to administrators and internees alike. These lawyers left behind a voluminous correspondence that opens a new window on the WRA’s relationship with its prisoners, a relationship heretofore understood as encompassing coercion on one side and either compliance or resistance on the other. This article uses the voluminous correspondence of the project attorney at the Heart Mountain Relocation Center in Wyoming as a new lens for viewing the regulatory relationship between the WRA and the imprisoned community. It focuses on three of the many matters about which the project attorney gave advice: the design of the camp’s community government, its criminal justice system, and its business enterprises. Evidence from this one law office suggests that on many key issues, the relationship between the WRA and the internees was marked not so much by coercion as by reciprocal accommodation, with each taking account of some of the preferences of the other. While the data are from just one of the ten WRA camps, they suggest a need to reconsider our understanding of how this American system of racial imprisonment operated.
Download the article from SSRN at the link.

Schlegel on Critical Legal History Without a Privileged Position

John Henry Schlegel, University at Buffalo Law School, is publishing Sez Who? Critical Legal History Without a Privileged Position in the Oxford Handbook of Historical Legal Rseearch (Markus D. Dubber and Christopher Tomlins, eds., Oxford University Press, --). Here is the abstract.
Scholars active in the Critical Legal Studies movement of the 1980s regularly attacked the scholarship of liberal legalist scholars by using a variety of then contemporary epistemological theories that argued for the impossibility of any observer attaining a neutral position from which to observe social activities. Somewhat surprisingly, liberal legalist scholars seldom turned this criticism back at the work of CLS scholars who themselves never criticized their own work as they did that of other scholars. The examination of several pieces of CLS inspired history of labor law shows how engaging in such self-criticism might have further strengthened this very strong body of scholarship.
Download the essay from SSRN at the link.

April 17, 2017

Frye on Slaves, Slaveowners, and Patent Applications Under the Patent Act of 1836 @brianlfrye

Brian L. Frye, University of Kentucky College of Law, is publishing Invention of a Slave in the Syracuse Law Review. Here is the abstract.
On June 10, 1858, the Attorney General of the United States issued an opinion concluding that a machine invented by a slave could not be patented, because neither the slave nor the slave owner could make an oath or affirmation that they were the inventor of the machine, as required by the Patent Act of 1836. The Attorney General’s opinion caused the Patent Office to deny at least two patent applications, one of which was filed by Senator Jefferson Davis of Mississippi, who later became the President of the Confederate States of America. Notably, the Confederate States Patent Act of 1861 provided, inter alia, that slave owners could patent inventions and discoveries made by their slaves. The Attorney General’s opinion seems to have relied on the fact that a slave was not a legal person and therefore could not make an oath or affirmation. But it may also have reflected an ideological dispute over whether slave owners should be entitled to benefit from the intellectual labor of their slaves. Ironically, the Attorney General and the Commissioner of Patents used the ideology of slavery to prevent slave owners from patenting the inventions of their slaves, and the Confederate States of America ignored the ideology of slavery in order to enable slave owners to patent the inventions of their slaves. In this way, a largely forgotten patent claim may offer a unique perspective on the politics and ideology of slavery in the antebellum United States.
Download the article from SSRN at the link.

Sempill on the Ruler's Sword and the Citizen's Shield: The Rule of Law and the Constitution of Power @MelbLawSchool

Julian A. Sempill, Melbourne Law School, has published Ruler's Sword, Citizen's Shield: The Rule of Law & the Constitution of Power at 31 Journal of Law & Politics 333 (2016). Here is the abstract.
Having provided in Article XXX for the separation of legislative, executive, and judicial powers, the Massachusetts Constitution of 1780 adds that the measure was chosen “to the end it may be a government of laws and not of men.” In choosing that formulation, the Constitution’s authors were announcing that their community’s separation of powers was an attempt to effect a relationship between law and state power that would make powerful institutions safer than they would otherwise be. The powers to make, execute, and interpret law were to be separated not merely in order to make of law an efficient instrument of behavior guidance. However, according to the “formal” or “thin” vision, efficient behavior guidance is the basic idea underpinning the Rule of Law. Insofar as the formal vision promises to sharpen the knife of state power, but says nothing about a countervailing shield, it offers no reassurance to citizens who are called upon to give up their own powers to those who would wield the knife. Yet, today, formal accounts of the Rule of Law enjoy widespread support, particularly among legal scholars. In this article, I take sides in the long-running contest between the formal vision of the Rule of Law and its limited government rival, whose leading exponents include James Harrington, John Locke, Algernon Sidney, and the Founding Fathers. However, although I seek to join the conflict, I have sympathy for the view that it has reached an impasse or at least has begun to offer diminishing returns. I hope to point both sides in the direction of a possible way forward. It seems to me that the most promising route is via a better understanding of the nature of the major Rule of Law visions, as well as of the rivalry between them. My chief aim, then, is to propose a method of inquiry which allows us to gain helpful insights into the historical, moral, and political significance of: (i) the limited government tradition’s Rule of Law project; (ii) the formal vision of the Rule of Law; and (iii) the contest between the traditional and formal visions. The method, and the insights it yields, should serve to re-orientate and re-energize our inquiries and debates concerning the Rule of Law. The Rule of Law rivalry is best understood as a clash of visions regarding the proper relationship between law, state power, and interests, expectations, and rights. In order to know where we should stand on the battlefield, we must understand what each side truly represents and what is fundamentally at stake in the conflict.
Download the article from SSRN at the link.

April 16, 2017

Brockman-Hawe on Bismarck's Proposal for an International Criminal Court to Assign Responsibility for the Franco-Prussian War

Ben Brockman-Hawe is publishing Punishing Warmongers for Their 'Mad and Criminal Projects' - Bismarck's Proposal for an International Criminal Court to Assign Responsibility for the Franco-Prussian War in volume 52 of the Tulsa Law Review (2016). Here is the abstract.
The idea of punishing aggressive war is routinely presented as having been first conceived of in the wake of the First World War. This conventional narrative is incorrect; the intellectual seed for the project had begun to take root long before, in the reactions to the interstate conflicts of the nineteenth century. This article explores one of the most significant moments from aggression’s unappreciated ‘pre-history’; Chancellor Bismarck’s pursuit of a trial before an international criminal court of the Franco-Prussian War’s (1870-1) French ‘intellectual originators and instigators.’ Although the proposal ultimately failed to attract the political and public support necessary for its implementation, it prompted in its own time an unprecedented discussion on the viability of international criminal responsibility for aggression and international criminal courts. The proposal later took on new life as both a precedent and an anti-precedent as these ideas resurfaced periodically after 1870. The goal of this paper is to restore Bismarck’s proposal to its rightful place in the story of the crime’s development. At stake is more than historic fidelity; contemporary expectations of what international criminal law can accomplish, what circumstances should or could accompany international criminal law’s invocation, and what the parameters of the crime of aggression should be are shaped by such histories. As the 2010 Kampala Amendments to the Rome Statute are now a single accession away from accumulating the requisite number of ratifications to come into effect, raising the prospect that the International Criminal Court will imminently be tasked with adjudicating the first aggression case in over seventy years, the need for reflection on these issues has taken on unusual salience.
Download the article from SSRN at the link.

Leiter on Justifying Academic Freedom : Revisiting Mill and Marcuse @BrianLeiter

Brian Leiter, University of Chicago Law School, has published Justifying Academic Freedom: Mill and Marcuse Revisited. Here is the abstract.
I argue that the core of genuinely academic freedom ought to be freedom in research and teaching, subject to disciplinary standards of expertise. I discuss the law in the United States, Germany, and England, and express doubts about the American view that distinctively academic freedom ought to encompass "extramural" speech on matters of public importance (speakers should be protected from employment repercussions for such speech, but not because of their freedom qua academics). I treat freedom of academic expression as a subset of general freedom of expression, focusing on the Millian argument that freedom of expression maximizes discovery of the truth, one regularly invoked by defenders of academic freedom. Marcuse argued against Mill (in 1965) that "indiscriminate" toleration of expression would not maximize discovery of the truth. I show that Marcuse agreed with Mill that free expression is only truth- and utility-maximizing if certain background conditions obtain: thus Mill argues that the British colony in India would be better off with "benevolent despotism" than Millian liberty of expression, given that its inhabitants purportedly lacked the maturity and education requisite for expression to be utility-maximizing. Marcuse agrees with Mill that the background conditions are essential, but has an empirical disagreement with him about what those are and when they obtain: Mill finds them wanting in colonial India, Marcuse finds them wanting in capitalist America. Perhaps surprisingly, Marcuse believes that "indiscriminate" toleration of expression should be the norm governing academic discussions, despite his doubts about the utility-maximizing value of free expression in capitalist America. Why think that? Here is a reason: where disciplinary standards of expertise govern debate, the discovery of truth really is more likely, but only under conditions of "indiscriminate" freedom of argument, i.e., academic freedom. This freedom is not truly "indiscriminate": its boundaries are set by disciplinary competence, which raises an additional question I try to address. In sum, the libertarians (Mill and Popper) and the Marxists (Marcuse) can agree that academic freedom is justified, at least when universities are genuine sites of scientific expertise and open debate.
Download the article from SSRN at the link.

April 11, 2017

VanderVelde on Henry Wilson, Cobbler of the Frayed Constitution, Strategist of the Thirteenth Amendment @IowaLawSchool

Lea S. VanderVelde, University of Iowa College of Law, has published Henry Wilson: Cobbler of the Frayed Constitution, Strategist of the Thirteenth Amendment at 15 Georgetown Journal of Law & Public Policy 173 (2017). Here is the abstract.
This article explores the extraordinary but rarely recognized contribution of Senator Henry Wilson in accomplishing the passage of the Thirteenth Amendment, motivated as he was by free labor ideology. Wilson played a key role in directing the strategic moves made by Congress to prepare the ground for passage of the Thirteenth Amendment and for its implementation. Born into poverty, Wilson worked his way up as a cobbler, developing along the way a strong commitment to the work ethic and the Republican ‘free labor’ ideology. Free labor ideology informed his opposition to slavery and advocacy on behalf of oppressed workers. Understanding Wilson’s free labor ideology has important implications for understanding the Thirteenth Amendment as a broader and more profound enactment designed to eliminate caste, class, and racial distinctions beyond simply banning chattel slavery. A deeper understanding of Wilson’s thoughts and deeds is valuable to our contemporary debates regarding the amendment and its continuing role in our republic.
Download the article from SSRN at the link.

Call For Panels: Comparative Law, Faith, and Religion: The Role of Faith in Law, October 26-28, 2017, Annual Meeting of the American Society of Comparative Law

From the mailbox:



Announcement and Call for Panels

Annual Meeting of the American Society of Comparative Law
Comparative Law, Faith and Religion:
The Role of Faith in Law

October 26-28, 2017
American University Washington College of Law
Washington D.C.

The American Society of Comparative Law and American University College of Law invite all interested scholars to consider submitting a panel proposal for the upcoming Annual Meeting of the American Society of Comparative Law that will be held between Thursday, October 26, and Saturday, October 28, 2017, at American University Washington College of Law, Washington D.C.  entitled Comparative law, Faith and Religion:  The Role of Faith in Law.

This conference was in large part inspired by the work of the late Patrick Glenn on legal traditions.  Professor Glenn bravely undertook to “compare the world” with his emphasis on legal “traditions” and by extending the scope of comparative law beyond what most comparative scholars are comfortable with.  Glenn looked beyond the civil and common law legal traditions to the Chthonic, the near eastern Jewish and Islamic legal traditions, and to the Confucian and Hindu traditions that challenge our basic assumptions about the rule of law.

The conference organizers have distinguished between faith and religion. The term “faith” is defined as having “complete trust and confidence”, while the term religion is traditionally used to include the doctrine and institutions.  Of course, it is possible to have faith in God or a religion but it is also possible to have faith in a secular text such as the U.S. Constitution or a civil code, and this faith may be of such fervor that it could be called a secular religion.

Examples of diverse topics that such a conference could address are:  (1) historical or modern day attitudes that result in having faith in a legal tradition or developing religious attitudes towards secular texts such as the U.S. constitution; (2) a comparison of secular faith with religious faith in a legal system, perhaps looking at the history and development of western democracies; (3) the role of Christianity in development of common and/or civil law traditions; (4) comparative approaches to legal ethics and the influence of religion on development and implementation of ethical rules for lawyers and judges; (5) Islamic visions of dispute settlement and the role of Islamic law in modern day commercial arbitration; (6) the role of Catholicism in development of family law in Latin America; (7) Laws of the nation’s secular authority as faithless law;  (8) the continuing influence of Hindu “law”; (9) whether there is such a thing as Buddhist law?; (10) the influence of the Talmud on modern western legal systems or (11) the challenge of teaching about religion in a law school setting; etc.  Interdisciplinary work is encouraged.

The Annual Meeting of the ASCL will have two time slots for concurrent panels on Friday, October 27, 2017. One of these time slots will include panels organized around a common theme, while the other time slot will include panels arranged by region that may include more than one theme on comparative law, faith, and religion. We will consider all panel proposals but for the regional panels we especially encourage submissions focused on Africa, Asia, the Caribbean, Latin America, the Middle East, and any other region or subregion that includes developing countries.

The Annual Meeting Committee of the American Society of Comparative Law will select the panels that will be held at the meeting in consultation with American University Washington College of Law. Panel proposals should include up to four speakers, a panel title, and a one-to-two-paragraph description of the ideas that the panel will explore. Panel proposals should be submitted via e-mail to Tra Pham at tpham@wcl.american.edu of American University Washington College of Law no later than June 1, 2017, and copied to Máximo Langer from the American Society of Comparative law at langer@law.ucla.edu.

Any questions about the panel proposals should be addressed to Máximo Langer and copied to Fernanda Nicola (fnicola@wcl.american.edu) and Padideh Alai (palai@wcl.american.edu)



April 10, 2017

Conference on Lalangue and the Intersections of Politics, Law, and Desire: Birkbeck, University of London, April 25-26, 2017



From the mailbox:


Registration is currently open for:

'Lalangue and the Intersections of Politics, Law and Desire' - [Birkbeck, University of London, 25th-26th April 2017].

Our first keynote speaker is the linguist, philosopher and essayist Jean-Claude Milner (Professor Emeritus of Linguistics at the Université de Paris-VII). Milner is a former president of the Collège International de Philosophie [1998-2001], a specialist in the fields of linguistics, psychoanalysis, European culture & the Jewish question. A former student of Althusser, Lacan and Roland Barthes, Milner will speak on Psychoanalysis and his new book 'Relire la Révolution.' 

Our second is the philosopher Guillaume Sibertin-Blanc (University of Toulouse II - le Mirail). His research interests include contemporary French philosophy, critical anthropology, Marxist and post-Marxist philosophy, psychopathology and psychoanalysis. He will be speaking on the mot d'ordre through Fanon, Lenin and Benveniste and will discuss his latest book 'State & Politics: Deleuze and Guattari on Marx.'


Register here:



April 7, 2017

Tiago Ferreira on Modern Day Slavery: A Reading of Orwell's Animal Farm

Pedro Tiago Ferreira, University of Lisbon, Faculty of Arts and School of Law, is publishing Modern Day Slavery: A Reading of Orwell's Animal Farm in series Iii, No. 11, of the Revista Anglo Saxonia (2016). Here is the abstract.
This article intends to call attention to the fact that slavery is not solely a legal institution. The rules that make up the institution of slavery are also social, moral and religious. This means that the revocation of the legal rules which are a component of the institution of slavery is not enough to abolish the institution as a whole. In order to understand the weight that the non-legal rules have on modern slavery—i.e. slavery which is not condoned by the law—George Orwell’s Animal Farm is discussed, as this tale of apparent liberation turns out to be one of de facto, or modern day, slavery. Before turning to Animal Farm, I discuss slavery as an institution, and whether or not it still remains a legal possibility in the United States.
Download the article from SSRN at the link.

Woodring on Liberty To Misread: Sanctuary and Possibility in The Comedy of Errors

Benjamin Woodring, Ph.D. Harvard, J.D. Yale, has published Liberty to Misread: Sanctuary and Possibility in The Comedy of Errors at 28 Yale Journal of Law & the Humanities 319 (2016). Here is the abstract.
Today’s hotly contested debates about “sanctuary cities” would feel very familiar to someone living in Shakespeare’s London. In this piece, which is part of a larger forthcoming book project titled Shakespeare’s Sanctuary Cities, I argue that Shakespeare is fascinated by the dramatic possibilities inherent in an asylum space situated on the fault line of a jurisdictional battle. A refuge site sits between life and death. At the same time, Elizabethan sanctuary was a contradictory swirl of concepts: something both holy and debauched, something at the same time archaic and unpredictably present. Shakespeare’s use of a sanctuary in The Comedy of Errors is not a simple endorsement of Christian mercy. It is rather a deeper reflection on genre and possibility: comedy is predicated on some escape valve from accumulating conflicts and obligations, while tragedy is ultimately insulated from such releases. Shakespeare creates an asylum episode in this play different from anything in Plautus or Gower, his main sources. The abbey, which jealously defends its sanctuary rights, is a space allowing for recognition and reintegration after long sequences of confusion and chaos. But it is also, I argue, a site for further potential misreadings. The sanctuary in Shakespeare’s play does not provide perfect resolutions. The sanctuary’s Abbess arguably bungles the play’s moral. But in the end, this imperfection is not only vastly preferable to tragedy’s irreversible misunderstandings, it is also a sign of Shakespeare’s nuanced unpacking of a generative social and spatial concept.
Download the article from SSRN at the link.

Davies on The Fan-Judges: Clues To a Jurisculture of Sherlockian Fandom @georgemasonlaw

Ross E. Davies, George Mason School of Law, is publishing The Fan-Judges: Clues to a Jurisculture of Sherlockian Fandom in volume 23 of Transformative Works and Cultures (2017). Here is the abstract.
American judges sometimes encourage other participants in the legal system to behave like Sherlock Holmes. They are relying on a shared culture that both appreciates a literary figure and recognizes a human capacity to emulate an imaginary creature (here, Sherlock) outside the context in which it was created. Consciously or not, the judges are tapping into classic fandom, but do they think of it that way, and should they?
Download the article from SSRN at the link.

Pop Culture, Academia, and Tenure Track Free-For-Alls

In a recent article, Slate's Rebecca Schuman suggests that "all of Hollywood's depictions" of college tenure processes are incorrect.  While all of the depictions might not be wrong, Ms. Schuman does point to some egregious examples, and one is one of my favorites, an off-the-rails episode of CBS's The Big Bang Theory (TBBT). In it, Sheldon, Raj, and Leonard all compete for a tenure track position at Cal Tech after a member of the tenured faculty suddenly passes away. The implication is that tenure at U.S. educational institutions is a gladitatorial free-for-all in which smoozing and sex appeal (represented by the guys' significant others) have as much to do with ultimate success on the intellectual battlefield as degrees and other academicc criteria. Other weirdness that comes out in the episode: the H.R. head, Janine, is on the committee that makes the decision.

No. Just no. Watch my lips (figuratively speaking). No.

The episode might be funny (although I didn't laugh much, and I actually like this show for several reasons), but as Ms. Schuman points out, it misleads viewers about how tenure actually works and how academic institutions actually seek out candidates for tenure track positions.

It also reinforces the notions that people with no experience or exposure to educational institutions have about how universities work, which is not a Good Thing At All. Too many taxpayers already think that public universities "waste" money on professor salaries, for example. One of my students said in class the other day that universities spend too money on frivolous things like dorm luxuries. In the next breath he also talked about students as consumers. I pointed out that colleges now have to compete in these areas to attract students like him. Students don't consider quality of faculty or libraries. They look for things like microwaves in dorm rooms and whether the pools are heated and how many of them there are. I remarked that if students are consumers (an analogy I don't favor), then colleges have to compete for them and offer them products they want.  Those products are shiny. They're not ultimately very useful for brain development, although they're pleasant for the after class environment. He did acknowledge that I had a point.

This TBBT episode gets a number of things wrong, as I note, but probably does so for satiric purposes. What does it get wrong, and why? First, none of the characters, Sheldon, Leonard, and Raj, seem to have been hired initially into a tenure track line. Thus, none is eligible for the position. In order to be eligible initially, you would need to apply for the position at the start, go through the interview process, and receive an offer (which would go through the faculty, chair, dean, provost, president, and board of trustees). It's a long process, and might be slightly different depending on the institution, but most institutions follow this pattern. These searches generally get many applicants, weed through them to a pool of qualified candidates whom they interview, perhaps by phone or in person off-campus, and then bring some to campus to interview for a day or two, and then discuss the finalists. Then someone gets and offer, negotiates with the chair, and then accepts (or declines). If the finalist declines, the department might move on to the second choice, if it wants to, if it still has the money in the budget, if the second choice is still available. There's none of the wackiness, including the mass schmoozing that you see at the cocktail party, in the episode.The candidates wouldn't meet. Generally if you are candidate for such a position, you would not know who else is a candidate for that position.  If Raj, Leonard, or Sheldon wanted to be considered, they would have had to apply when the position was finally posted, and the posting would have need to be open for a specific amount of time. Given Cal Tech's prestige, the posting would certainly have been nationally posted, and perhaps even internationally advertised, and probably for several months at least. Raj, Leonard, and Sheldon would have been in competition with scientists from around the world, not just with one another.

Why does TBBT present such a situation? It probably wants to show these characters in conflict. It wants to show some infighting in an academic setting. Maybe the show wants to suggest some (supposed) inanity at academic institutions. There certainly can be some. But not this kind.

Second, Janine, the HR head, and her staff certainly could have helped with the writing and the posting of the job description (which as I note would have taken months). She and the staff would done triage on all the applications once they received them. But she would not have served on the search committee. That committee would have been up of faculty members from the hiring department, and perhaps a faculty member or two from another department. Perhaps a staff member with knowledge of the research area might have been invited to search on the committee. But Janine would have had no place in the interviewing interactions. She would have had a role to play in informing on-campus candidates of job benefits. Again, why does the episode show her involvement? Because it wants to heighten the conflict--she's been involved with these characters before. But again, the notion that in real life such a staff member would weigh in formally on such a hire by being on the search committee--no.

Finally, the department apparently decides not to make a hire from among the three candidates. At an institution like Cal Tech, which loses a prestigious prof, is this outcome likely? I'd suggest the answer is no. But that's the outcome the episode ends with, again probably heighten the conflict. A real department, assuming that it has the money to hire, would try its best to make a hire, because it has invested months, and perhaps a year, in seeking a replacement for the late, lamented, prof and it wouldn't want to lose the line (although there are things it could do to save it).

TBBT actually has a real life physics prof around to the physics that appears on the dry erase boards on the show. The writers could have asked him about the tenure procedure. Of course, maybe they did, and just didn't follow his guidance in this area. In any case, the result is a disappointing episode, and one that TBBT didn't really need to make. There are many ways to depict conflict among the physicists and engineers on this show. This one wasn't necessary.

We also see a certain amount of bickering among Sheldon, Leonard, and Raj (to a lesser degree) over offices. In one episode, Sheldon and Barry Kripke fight over possession of an office vacated by a recently retired prof. Neither Sheldon nor Barry is a tenure track prof. Why would they be entitled to such a prestigious office, and why would the department chair indulge them in such a way, even if they are relatively famous scientists, bring in big grants, and run big labs? The tenured profs in his department are, one presumes, even bigger names and bring in even larger grants and run even bigger labs than do Sheldon and Barry. The kind of posturing and bickering that Sheldon and Barry carry on is childish. If they are unhappy about their circumstances, and truly that brilliant, they could seek out opportunities elsewhere (M.I.T, Princeton, Berkeley?)  Again, TBBT is showing up the kind of conflict it may presume goes in academia, probably just for the entertainment value. Yes, there is conflict in academia. But the real thing is actually, I'd suggest much more interesting than this kind of thing, which seems silly and suggests that grown men with brilliant minds are ultimately toddlers. I'm frankly happy to see that in season 10 Sheldon is finally developing some personal and behavioral skills.

These kinds of things aren't the only ones that pop culture gets wrong about academia. Some of them are some basic that I wonder why they're incorrect. What purpose does it serve to misrepresent them. In a lot of shows, and some films, college classes end with the ringing of a bell to show that class is over, usually right when the prof is saying something important, so that she has to give the next assignment and wrap up quickly (right when a student is asking a question). I'm going to be very clear about this next point. Classes at universities DO NOT END WITH BELLS RINGING. That happens in elementary and secondary education. You would think that writers, many of whom have actually been to college, know perfectly well that college classes don't have bells. One could signal in the script that class is over by having the instructor say, "I see that we're out of time today. For next time, please read..." as if there's no syllabus (although again, there are syllabi in college classes, and again you'd the writers would know this).  Those bells really need to go.

If pop culture wants to dramatize some of the interesting academic issues today, there are a lot that would make riveting tv and film. Stories about sexual harassment (think about David Mamet's Oleanna), or firing a prof for the use of  profanity in the classroom (and the prof responding that profanity is part of the learning experience), actual conflict between scientists for credit, or plagiarism, or falsifying data, or the dramatization of a sexual attack on campus by a star athlete--these would make great tv or film experiences and opportunities for thoughtful discussion about the educational environment and the responsibilities of higher education to its students, staff, and faculty, as well as the public.  If some writer would like assistance with developing some of these ideas, email or tweet me. Happy to help.




April 6, 2017

Better Call Saul (Season Three)

Call For Papers: AALS Section of Law and Humanities Panel on AI/Robots, Law, and the Humanities

Call for papers for an AALS Section of Law and the Humanities panel at the 2018 Annual Meeting, San Diego, January 3-January 6, 2018,  on the theme of the image of robots and AI in the humanities, communication, film, tv, art, commercials, philosophy, and related disciplines. Should robots and AI have rights? If so what rights? 

Please send expressions of interest, your affiliation, and a short description (100-250 words) of the proposed paper by May 15, 2017 to

Christine Corcos (christine.corcos@law.lsu.edu)


Thank you.


DesBaillets on Magna Carta in Canada at 800: Happy Birthday or Identity Crisis? @DDesBaillets

David DesBaillets, University of Quebec at Montreal (UQAM), Faculty of Law, has published Magna Carta in Canada at 800: Happy Birthday or Identity Crisis? Here is the abstract.
When Canada celebrated the 800th anniversary of the Magna Carta in 2015, it did so in grand fashion. This event was marked by a nationwide tour, essay writing contests and countless speeches made by politicians, jurists and academics on its central place in the legal foundation of Canadian human rights, Constitutionalism, judiciary and representative democracy. As has been said enthusiastically by any number of Canadian legal historians “the Magna Carta…informs the legal system in English Canada, and the Canadian Charter of Rights and Freedoms.” However, a more critical lens is needed in order to better understand this document and the way in which it has shaped and continues to influence law, proceduralism and constitutionalism in Canada’s modern legal institutions. Starting from the premise that the ways in which justice is represented is often a reflection of the values that legal institutions aspire to represent, this paper demonstrates the power of Magna Carta as a legal symbol to legitimize and create a rights based discourse that portrays our current human rights paradigm as originating in an ancient historical and mystical common law past. In the first half, it looks at the semiotic, historical, anthropological and metaphorical uses of Magna Carta as well as in present day legal institutions and provides an overview of its specific relevance to the modern human rights narrative in Canada’s judiciary. The second half of this paper will re-examine these symbols with a critical lens in order to demonstrate the reality of Magna Carta as a human rights instrument without formal legal status. The significance of a foreign statute which has no direct bearing on Canadian human rights will be scrutinized in its, human rights law, criminal law, indigenous law and administrative law contexts. The primary sources of legal doctrine, jurisprudence, and constitutional interpretations involving Magna Carta as well, secondary sources of critical analysis will be used in attempt to demonstrate that the influence of Magna Carta, both historically and in contemporary discourses on human rights, can be seen as both positive and negative. Finally the paper will describe the paradox of the Magna Carta as both a source of proceduralism, on the one hand, and substantive rights and civil liberties, on the other, in the contentious Canadian debate between these two interrelated conceptions of human rights law as it relates to contemporary anti-terror legislation.
Download the article from SSRN at the link.

April 5, 2017

Finkelman on Frederick Douglass's Constitution

Paul Finkelman, University of Pittsburgh, School of Law, Albany Law School, Government Law Center, has published Frederick Douglas's [sic] Constitution: From Garrisonian Abolitionist to Lincoln Republican at 81 Missouri Law Review 1 (2016). Here is the abstract.
This Article explores how the great black abolitionist Frederick Douglass was both a constitutional actor and a constitutional theorist. Unlike most constitutional actors, Douglass was not a judge, lawyer, professor, or an elected official. Nevertheless, throughout much of his life, Douglass shaped the Constitution through his actions. He was also shaped by the Constitution as he went from being a fugitive slave – and thus an “object” of the Constitution – to being a free citizen and an appointed officeholder. He became a constitutional theorist who brought his theories into action through his speeches, writings, and activities as an abolitionist, as an antislavery activist, and then as a spokesman for African Americans during the Civil War. This Article provides insights into antebellum constitutional thought and the background to the Fourteenth Amendment. This Article also explores our understanding of the Constitution and its relationship to slavery through the lens of Frederick Douglass. First, the Article looks at how the Constitution impacted Douglass and how Douglass was himself a “constitutional actor,” even though he held no public office and was not even considered a U.S. citizen under the holding in Dred Scott v. Sandford. For example, Douglass was a constitutional actor when he escaped from slavery – and thus came under the Fugitive Slave Act of 1793 and Article IV, Section 2, Clause 3 of the Constitution; when he married in New York but was still a fugitive from Maryland; when he applied for, and received, a copyright for his first autobiography, even though he was a fugitive slave at the time; and when he left the United States for Great Britain without a passport. This Article also explores Douglass’s constitutional theories and understandings and how he used the Constitution to oppose slavery. I argue, in part, that his understanding of the Constitution and his approach to constitutional interpretation changed as his life circumstances changed. Thus, when he returned from England, he was a free man because British friends had purchased his liberty. This led him to a new understanding of how to approach the Constitution and how to fight slavery under the Constitution. While essentially a work of legal history, this Article also offers ways of understanding constitutional theory and the elements of being a constitutional actor. The Article also raises issues of interstate comity and the recognition in one state of a status created in another. While not explicitly stated – because this is a work of legal history – this Article obviously has implications for modern issues surrounding marriage equality, child-custody based on interstate recognitions of status changes, the interstate recognition of gender transitions, and the legal rights of non-citizens within the United States.
Download the article from SSRN at the link.

Advice About "Consent," a New Play by Nina Raine

From the Guardian: a review of a production of Nina Raine's Consent, a play about a rape surviver and the personal and professional lives of the barristers involved in the case. More here. 

Says reviewer Michael Billington in part, "Consent is a play that stimulates debate rather than stifles it. ...This is a very good play that reminds us that drama, like the law, depends on antithetical narratives in which we become judge and jury."

More here from the Independent, the Evening Standard.