Law & Humanities Blog

Grand Juries and "The Good Wife"

2012-01-31T13:03:00.000-05:00

Findlaw's Stephanie Rabiner examines the legal accuracy of this week's Good Wife episode here.

Rex Stout's "Justice Ends at Home"

2012-01-30T18:26:00.000-05:00

Ross E. Davies, George Masson University School of Law; The Green Bag, has published Leg, Culp, and the Evil Judge at 2012 Green Bag Almanac and Reader 321. Here is the abstract.

Nobody could have known it at the time, but when Rex Stout’s novella Justice Ends at Home was published in 1915, it foreshadowed not only the rise of two enduringly popular fictional heroes (Nero Wolfe and Archie Goodwin), but also the fall of one enduringly objectionable actual villain (Judge Martin T. Manton of the United States Court of Appeals for the Second Circuit). Leading scholars of the work of Rex Stout agree that the two main heroic characters in Justice Ends at Home — the flabby, phlegmatic, middle-aged Simon Leg and his sharp, energetic, youthful assistant Dan Culp — prefigured the fat Nero Wolfe and svelte Archie Goodwin who made their first appearance in Stout’s 1934 novel, Fer-de-Lance. As Stout biographer John McAleer puts it, “eighteen years before Fer-de-Lance was written, Wolfe and Archie already lived nebulously in the mind of Rex Stout.” Unlike Simon Leg and Dan Culp, Judge Fraser Manton — the main villainous character in Justice Ends at Home — has passed largely unnoticed by scholars of Stout and of the law. But the fictional Judge Manton is in fact a prefiguration of the infamous real-life Judge Martin T. Manton of the U.S. Court of Appeals for the Second Circuit. The similarities go beyond the names. Indeed, the two Mantons have enough in common to support an inference that Stout based his fictional Judge Fraser Manton on the real Martin Manton, although the real Manton would not become a judge until 1916 — the year after Justice Ends at Home was published. In other words, Stout’s selection of a corrupt Judge Manton for the lead bad-guy role in Justice Ends at Home was intriguingly prescient.
Download the article from SSRN at the link.

Literary Property and Copyright

2012-01-30T18:19:00.001-05:00

Alina Ng, Mississippi College School of Law, has published Literary Property and Copyright in volume 10 of Northwestern Journal of Technology and Intellectual Property (May 2012). Here is the abstract.

Even when the first subject matter of copyright control was literary works, the specific rights of authors who produce these works had never been clearly articulated. Copyright laws have protected a statutory right to distribute the work to the public that may be broadly owned by both author and publisher while the common-law right of property over the work, which would have protected an author’s creative interest in the work, have been dismissed by the courts as a legitimate source of law. This paper examines literary property as a form of authorial rights, which authors may potentially have over works of authorship and which is both separate and distinct from statutory copyright. By looking at publication contracts between manuscript publishers and authors such as John Milton, Ralph Waldo Emerson, Harriet Beecher Stowe, Henry Thoreau, and Oliver Wendell Holmes, this paper suggests that there are two sources of rights over literary and artistic works - one at common-law and another at statute – as evidenced by the fact that authors retained personal property rights over their work after exclusive rights to print were assigned to the publisher. Should the notion of literary property be accepted as another source of right for the author, there will be immense implications for how scholars, jurists, and policy-makers understand and shape copyright laws. If literary property is acknowledged as separate from statutory copyright, then ownership of the work and ownership of the specific rights under §106 of the Copyright Act would entail different entitlements. The author’s role in the copyright system will be more clearly defined as ownership of literary property delineates rights owned and obligations owed by authors who produce literary works for the rest of society. Finally, this paper argues that social expectation to access creative works may be checked against the authors’ right to protect their creative personality and integrity as well as the publishers’ right to receive fair payment for the use of the work if a clear conceptual distinction between literary property and copyright is drawn.

Download the article from SSRN at the link.

Justice Holmes and Pragmatism

2012-01-30T18:17:00.002-05:00

Seth Vannata, Morgan State University, has published Justice Holmes at the Intersection of Philosophical and Legal Pragmatism. Here is the abstract.

Because of the prolific scholarship on legal theory by Judge Richard Posner, especially since his turn away from law and economics toward “pragmatism,” legal scholars began reading “legal pragmatism” as references to Posner’s thought alone. My present task is part of a larger process of rethinking Posner’s version of legal pragmatism. Posner’s inspiration for his turn toward pragmatism can be attributed, in large measure, to Oliver Wendell Holmes, Jr. Posner buys into three central insights of legal pragmatism, whose origins lie in the work of Holmes, anti-formalism, the prediction theory of the law, and a modicum of indeterminacy in judicial decision making. Further, Posner is a methodological pluralist, refusing to reduce the process of adjudication to any one method or approach, such as textual literalism or originalism. He takes the mask off of these judicial theories and claims that underneath each is a pragmatist.

But Posner’s central position, to which the present article is a propadeutic to a more substantial criticism, is that academic philosophy and philosophical pragmatism in particular have no role to play in legal pragmatism as it manifests itself in the process of adjudication or in the process of legal scholarship. Since the legal theory Posner thinks useless is so infected by philosophy, legal theory, according to Posner is not relevant to the law either. If legal theory is not relevant to the law, legal institutions seem intellectually impoverished, ignoring the storehouse of wisdom in philosophy and depriving law of the intelligence necessary for social growth. Posner’s polemical stance has not gone unnoticed in the world of jurisprudence and legal theory. But the result has been that legal scholars have now begun to associate legal pragmatism with Posner’s seeming anti-theory. Thus, an important element in rethinking Posner’s version of legal pragmatism is presenting a defense of Holmes as a philosophical pragmatist and a pragmatist in the tradition of his contemporary, Charles Sanders Peirce. Such is my present task. Holmes’s scholarship resides at the intersection of philosophical and legal pragmatism, where Posner imagines that these roads run parallel to each other and therefore do not intersect.

The central position I advance here is that Holmes’s historical legal scholarship and several of his judicial arguments evince the pragmatic sensibility of C.S. Peirce. Holmes puts to work several elements of Peirce’s pragmatism: (1) that we must infer knowledge internal to the mind by external signs; (2) that the best method to fix our beliefs and settle our doubts relies on a communal inquiry as opposed to authoritarian dictates; (3) that the meaning of a concept, such as law, is found in the effects of its enactment; (4) that falliblism, liberalism, and skepticism of absolute truth are the proper norms to deter dogmatism and authoritarianism; (5) that the reality of values and ideals are found in their functional effects; and (6) that the norms, principles, standards, and rules, which guide the process of judicial inquiry, are generated by the facts of the case, as opposed to being a priori principles (versus natural law theory) and as opposed to lacking any reality at all, (versus nominalism). Peirce offered us the idea that to understand the meaning of a concept, we must look to its practical effects. I offer the idea that if we want to know the meaning of pragmatism itself, we should look to its practical effects in the scholarship and judicial decisions of Oliver Wendell Holmes, Jr.

Download the paper from SSRN at the link.

Dickens On Design

2012-01-25T03:52:00.000-05:00

Here, from The Guardian.

Digital Messing Around

2012-01-25T03:15:00.000-05:00

In his column in the January 23rd New York Times, Stanley Fish suggests that parsing humanities texts using computers may be fun, but it can also lead us to find more than we were looking for.

Musings On Bob Dylan and the Law From Another Blog

2012-01-18T08:55:00.000-05:00

Great post on Bob Dylan and the law here at Nightly Song.

CBS Orders Pilots for New Legal Shows

2012-01-18T08:46:00.001-05:00

CBS has ordered pilots for two new projects, an updated version of Sherlock Holmes, set in New York City, and a new legal drama. According to the Hollywood Reporter, the Sherlock Holmes show, right now titled Elementary, will be written by Robert Doherty, and produced by Sarah Timberman and Carl Doherty. The legal show, Baby Big Shot, is a project from Dana Calvo, Kevin Falls, and Jamie Tarses. Calvo was involved with the legal drama Franklin & Bash. More here from the Chicago Tribune.

Calling Inspector Lewis

2012-01-16T14:34:00.000-05:00

Professor Steven Rawlings, an astrophysicist working on the Square Kilometer Array located at Oxford, died Wednesday night. His colleague, Professor Devinder Sivia, has been arrested by the police, but is now out on bail. Professor's Rawlings widow has said she does not believe Professor Sivia is involved in her husband's death.

The New York Times notes that this story has all the makings of a Colin Dexter Inspector Morse novel. An Inspector Lewis episode actually centers on astronomers and murders (Dark Matter), as do episodes of Murder She Wrote (Harbinger of Death) and Psych (From the Earth to Starbucks).

How Did Pablo Neruda Die?

2012-01-15T16:55:00.002-05:00

Allegations are surfacing that celebrated poet Pablo Neruda (1904-1973) did not die of natural causes, but was murdered. Attorney Eduardo Contreras, a friend of Mr. Neruda's, and Manual Araya, the man who was the poet's bodyguard, say they believe that the poet was poisoned at the clinic at which he was recovering from surgery in 1973. Mr. Contreras would like to have Mr. Neruda's body exhumed and examined. A judge has also ordered an investigation into the death of former President Sergei Frei, who died at the same clinic. More here in a story from MSNBC.

Scotland's Judiciary and the Development of Article III

2012-01-13T18:50:00.000-05:00

James E. Pfander and Daniel D. Birk, Northwestern University School of Law, have published Article III and the Scottish Enlightenment, which is forthcoming in the Harvard Law Review. Here is the abstract.

Historically-minded scholars and jurists invariably turn to English law and precedents in attempting to recapture the legal world of the framers. Blackstone’s famous Commentaries on the Laws of England offer a convenient reference for moderns looking backwards. Yet the generation that framed the Constitution often relied on other sources, including Scottish law and legal institutions. Indeed, the Scottish judicial system provided an important, but overlooked, model for the framing of Article III. Unlike the English system of overlapping original jurisdiction, the Scottish judiciary featured a hierarchical, appellate-style judiciary, with one supreme court sitting at the top and an array of inferior courts of original jurisdiction down below. What’s more, the Scottish judiciary operated within a constitutional framework - the so-called Acts of Union that combined England and Scotland into Great Britain in 1707 - that protected the role of the supreme court from legislative re-modeling.

This Article explores the influence of the Scottish judiciary on the language and structure of Article III. Scotland provided a model for a single “supream” court and multiple inferior courts, and it defined inferior courts as subordinate to, and subject to the supervisory oversight of, the sole supreme court. Moreover, the Acts of Union entrenched this hierarchical judicial system by limiting Parliament to “regulations” for the better administration of justice. Practice under this precursor to Article III’s Exceptions and Regulations Clause establishes that a supreme court’s supervisory authority over inferior courts would survive restrictions on its as-of-right appellate jurisdiction. The Scottish model thus provides important historical support for the scholarly claim that unity, supremacy, and inferiority in Article III operate as textual and structural limits on Congress’s jurisdiction-stripping authority.

Download the article from SSRN at the link.

Judicial History In Medieval and Early Modern England

2012-01-13T18:46:00.000-05:00

Edward Peter Stringham, Fayetteville State University School of Business and Economics, and Todd J. Zywicki, George Mason University School of Law, have published Rivalry and Superior Dispatch: An Analysis of Competing Courts in Medieval and Early Modern England as George Mason University Law & Economics Research Paper No. 10-57. Here is the abstract.

In most areas, economists look to competition to align incentives, but not so with courts. Many believe that competition enables plaintiff forum shopping, but Adam Smith praised rivalry among courts. This article describes the courts when the common law developed. In many areas of law, courts were monopolized and imposed decisions on unwilling participants. In other areas, however, large degrees of competition and consent were present. In many areas, local, hundred, manorial, county, ecclesiastical, law merchant, chancery, and common law courts competed for customers. When parties had a choice, courts needed to provide a forum that was ex ante value maximizing.

Download the paper from SSRN at the link.

Domestic Abuse and the Courts in the Nineteenth Century

2012-01-12T16:04:00.001-05:00

Jerome J. Nadelhaft, University of Maine, has published 'For Every Wrong There is a Remedy': Changing Law and Fleeing Wives in Nineteenth-Century America. Here is the abstract.

Wife abuse was much in the public eye in the nineteenth century. Throughout the century a large but unknown number of wives sought to preserve their lives by abandoning their homes. It was never easy, but at least some were not themselves abandoned by the courts, which dealt with the many issues raised: for example, whether relatives and neighbors were allowed to assist them and even encourage them to flee. Fortunately, the American Revolution inspired a judicial belief that problems could be solved. Equity courts flourished and the chancellors who presided felt comfortable acting where the law was silent. More and more over the course of the century, and over a widening area, chancellors and common law judges could be heard to denounce both wife abuse and the abusers. By the end of the century, they had come to reject any notion that a wife’s provocation justified or excused abuse, that one who was not without fault forfeited her right to be free from violence, that staying with an abuser was condonation. Through judicial activism, some wives found safety and support.

Download the paper from SSRN at the link.

The Best Fictional Detectives

2012-01-10T12:21:00.001-05:00

The Guardian offers its top ten fictional sleuths here. What? No Hercule Poirot? It gives one furiously to think.

There Once Was a Law Prof Named Norman

2012-01-09T18:26:00.002-05:00

Norman Otto Stockmeyer, Cooley Law School, has published Enhancing Caselaw Instruction with Online Limericks, in volume 19 of The Law Teacher (Fall 2012). Here is the abstract.

Quoting from online exchanges with his students, the author explains and illustrates how he uses case-related limericks to supplement classroom instruction in his first-year Contracts course. His TWEN discussion forum, dubbed “Poetic Justice,” encourages students to get turned on to the poetic side of contract law as they attempt to formulate legal rules derived from leading cases.

Download the paper from SSRN at the link.

Justified Returns On FX January 17

2012-01-08T18:47:00.000-05:00

The new season of Justified begins January 17. Jeremy Egner brings us up to speed.

Legal Verse

2012-01-07T23:17:00.000-05:00

Marquette Law School student Gabriel Houghton muses about law and poetry at the Marquette University Law School Faculty blog here.

Charles Addams

2012-01-07T10:51:00.004-05:00

The Google Doodle today, January 7, 2012, honors "graveyard guru" Charles Addams, father of the Addams family, who came into living rooms first through print in the New Yorker and then via television--John Astin as Gomez Addams, Carolyn Jones as Morticia, Jackie Coogan as Uncle Fester (Frump), and Ted Cassidy as Lurch, the butler. The wonderfully scary but ultimately well-intentioned family lives off some kind of stash--a lucky thing, because Gomez, who is after all an attorney, doesn't seem to have any clients. In the 1990s, Raul Julia and Angelica Huston starred in a couple of Addams Family films. More here from PC Magazine and here from the Washington Post. Check out Morticia's Morgue here.

Saint Joan

2012-01-06T22:44:00.002-05:00

She told the heir to a throne her voices led her to him, and to defend her country and her religion. She dressed as a man and scared the pants off the English. Burned as a witch, she's revered as a saint. Kathryn Harrison discusses Joan of Arc's mystique, six hundred years on.

PBS: Show It the Money

2012-01-02T10:16:00.000-05:00

PBS reacts to a loss of federal funding after the debt ceiling crisis and the economic downturn generally by creating a more assertive ad campaign that features its popular series Downton Abbey and Sherlock. By doing so it tries to lure viewers who often tune in to HBO or Showtime. More here from the New York Times.

Downton Abbey Returns For a Second Season

2012-01-01T22:35:00.003-05:00

Season 2 of the series Downton Abbey premieres on January 8 on PBS. As you'll recall, the last episode of season 1 ended with news of the formal declaration of war between Great Britain and Germany, announced at Lord and Lady Crawley's garden party. This popular new series stars Maggie Smith, Dan Stevens, and Elizabeth McGovern and touches on many law-related issues, including an entail (Lord Crawley's daughters cannot inherit his title), women's rights, clashes between the "haves" and the "have-nots", illustrated most clearly by the attitudes of some of the servants working for Lord and Lady Crawley who resent their "downstairs" positions and by the fiery rhetoric of some of the politicians who visit the local town.

Check out The First World War Poetry Digital Archive and the UK's National Archives website for more on the First World War.

I Say Coca, You Think...

2012-01-01T12:43:00.005-05:00

Coca doesn't just mean the plant from which cocaine is derived, and its many associations, or the name of a gifted comedienne, any longer. Spelled COCA, it stands for Corpus of Contemporary American English, a database which tracks new and emerging meanings for English language words. Did The Mentalist's Agent Lisbon just mention that she has requested a "bolo" for some suspect? What is a "bolo," anyway? Search COCA, and discover it's a "be on the lookout" alert (or notice) for a car or suspect as well as a kind of tie. "Be on the lookout" makes more sense in the context of "The Mentalist"'s episode. COCA lets you search for phrases and related words as well. I searched the two word phrase "Socratic method" and got 39 hits; the system gave me context, dates, and classification (about 20 words, academic, popular, or fictional, 1990s-today). Results are laid out in columns and the screen can look a little cluttered, but that's not fatal. Guided tour here.

Another database for emerging words is Wordnik, which presents new terms in their unvarnished glory. Wordnik uses many new sources, such as blogs and Twitter, to find its candidates. When I searched "bolo," I got the usual definitions of "bolo tie." When I capitalized "BOLO," I got "be on the lookout" as a definition. Having to know enough about terminology and searching to try capitalizing the word may be a drawback of this database, since users may not always capitalize the word when they write it, nor may searchers capitalize when they search for the term. When I searched "socratic method," the system found a limited number of hits, but suggested "socratic method" as a phrase. I re-ran the search and found many more hits.

The system also offers alternatives for a search, when it doesn't find many hits. Other features: "random word" and "word of the day." The database is set up differently from COCA. It resembles more precisely a traditional print dictionary: definition on the left and examples on the right. Results are easy to read.

More here from the New York Times about both Wordnik and COCA, and online dictionaries in general.

Keep Watching the Skies

2011-12-30T19:48:00.000-05:00

What actually killed the birds, which inspired Daphne du Maurier to write that short story which Alfred Hitchcock eventually turned into a 1963 thriller? Researchers say it was poisoned plankton, which entered the food chain, and which the feathered flyers eventually ingested. Here's more via an LSU press release on the harmful algae bloom, which LSU professor Sibel Bargu says are "naturally occuring" toxins. Mr. Hitchcock turned the natural phenomenon which occurred in 1961 into a malevolent force--an intentional but seemingly inexplicable attack by the birds of Bodega Bay on the humans of the area--and terrified the dickens out of Rod Taylor, Tippi Hedren, and the rest of us.

From the Capitol Steps: Happy Newt Year (and Other Song Stylings)

2011-12-29T16:29:00.000-05:00

That irreverent group, the Capitol Steps, turns thirty, and has added some Newt Material to its repertoire. I'm referring, of course, to its song, "Three Little Wives of Newt" (cribbing from the Gilbert and Sullivan staple "Three Little Maids From School Are We"). Isn't the protection of the First Amendment wonderful?

Pride and Prejudice and Bodies

2011-12-27T11:36:00.000-05:00

From the New York Times: a review of P.D. James' newest novel, Death at Pemberley. It's Darcy and Elizabeth six years on, dealing with a murder.

Keeping Streets Safe, One Superhero At a Time

2011-12-26T12:25:00.001-05:00

By day they are ordinary citizens. By night they take their inspiration from comic book superheroes and fight crime where they see it on public streets, in subways, in restaurants--wherever they think they're needed. Of course, sometimes their crime-fighting efforts go awry, and duly appointed representatives of the law fight back, as in the case of Seattle-based Phoenix Jones. While Mr. Jones (born Ben Fodor) was never charged for mistakenly intervening in what he thought was a fight but what the people involved said was dancing, he is still awaiting the return of his superhero equipment, which the Seattle PD seized back in October. Such are the challenges of the cape.

Unbuttoned Bob Dylan

2011-12-25T16:00:00.000-05:00

Renee Newman Knake, Michigan State University College of Law, has published Why the Law Needs Music: Revisiting NAACP v. Button Through the Songs of Bob Dylan in volume 38 of the Fordham Urban Law Journal (2011). Here is the abstract.

The law needs music, a truth revealed by revisiting the United States Supreme Court’s opinion in NAACP v. Button through the songs of Bob Dylan and Sandra Seaton’s play Music History. The Court decided Button in 1963, just a few months before the debut of Dylan’s acclaimed album, The Freewheelin’ Bob Dylan. In Button, the Court held that the First Amendment protected the NAACP’s legal assistance to individuals for the enforcement of constitutional and civil rights. The decision was a victory for the NAACP, yet success in the courtroom did not translate entirely to success on the ground. Indeed, in the same year, NAACP Mississippi Field Secretary Medgar Evers was assassinated, and the Birmingham Sixteenth Street Baptist Church was bombed. These events serve as reminders of law’s inadequacies, in that the constitutional protection of legal services in Button did little to stop the needless loss of life and violence that was characteristic of racial desegregation efforts. Not only did tragedy persist, but the NAACP’s long-term vision for racial equality has never been completely realized. Playwright Sandra Seaton focuses on the law’s inadequacies in her drama Music History, also set in the turbulence of 1963. Her characters endure the law’s failings firsthand when a University of Illinois student, Walter, the beloved of Etta, is killed during his work on the voter rights campaign in Mississippi.

Music of the 1960s captured the struggle inherent in attempts to achieve equality when the law proved impotent, particularly as evidenced by Bob Dylan’s work in 1963. This Essay, written for the Fordham University School of Law Bob Dylan and the Law Symposium, offers three connections between the law and music using the works of Dylan and Seaton as illustrations. First, music criticizes the existing cultural and legal regime in a manner that empowers social change in the wake of the law’s failure. Second, while the Button legal opinion memorialized the history of the civil rights era, music (and Seaton’s Music History) continue to influence modern culture in a more pervasive way. Third, Button, Dylan, and Seaton remind us about the importance of exercising our free speech rights, whether the speech involves offering legal assistance to minorities shut out from the political process at the ballot box, singing a song silenced by record and television network executives, or recreating history through drama. In short, we see why the law needs Bob Dylan and Music History.

Download the article from SSRN at the link.

Dickens and Christmas

2011-12-25T13:48:00.000-05:00

Maureen Dowd considers Charles Dickens' thoughts on Christmas at the end of his life, noting that we will celebrate the bicentenary of his birth on February 7, 2012. Michiko Tanukani reviews two new biographies that explore his life and accomplishments.

Imagining Gringo Alley

2011-12-24T15:57:00.000-05:00

Steven W. Bender, Seattle University School of Law, is publishing Gringo Alley in the UC Davis Law Review. Here is the abstract.

As a tribute to the late Professor Keith Aoki, this piece engages an uncompleted collaboration with Professor Aoki sketching through art and words a profoundly dystopian immigration nightmare centered in the Southwestern United States. In detailing the plot and themes of the borderlands gauntlet of "Gringo Alley," the article confronts some of the disturbing recent developments in immigration policy that approach or match the horrors imagined in fictional Gringo Alley. Finally, the article draws on science fiction influence and demographic reality to suggest a frightening future for all U.S. residents -- the prospect of economic collapse in a landscape of stifled Mexican immigration coupled with an aging U.S. population, that leaves us scrambling to meet labor needs in a real-life "Day Without a Mexican."

Download the article from SSRN at the link.

The History of the Idea of "Balance of Power"

2011-12-23T15:53:00.000-05:00

Miloš Vec , Wissenschaftskolleg zu Berlin, has published De-Juridifying ‘Balance of Power’ – A Principle in 19th Century International Legal Doctrine in the European Society of International Law (ESIL) Conference Paper Series. Here is the abstract.

“Balance of Power” has always been one of the leading justification narratives in international relations. In the introduction section this paper gives an overview of the usages of the principle which is not limited to a particular epoch or geographic area. However, it was classically attributed to the European state system, to brand the era between the treaty systems of Utrecht 1713 and Vienna 1815 when it was discussed as legal and political principle. My paper argues that the international legal doctrine of the 19th century became increasingly reluctant in juridically approving this principle. This shift indicates a vanishing sympathy for the balance of power as an adequate instrument to regulate 19th century interstate relations; this was likewise related to a rejection of the restorative Vienna order. Most international lawyers disguised their reserve behind the formal-positivist distinction between international law and politics (which could be understood as moral and political decision). The principle of the balance of power was devaluated as a mere expression of Realpolitik. At the end of the 19th century, the majority of international lawyers regarded the balance of power as political, not juridical principle. It was shifted to the historiography of international law and to political sciences.

Download the paper from SSRN at the link.

The FTC Versus Santa

2011-12-21T22:55:00.000-05:00

Poor Santa. As if he didn't have enough problems, what with having to contend with all those jets in his airspace, and children who question his existence, now he's been hit with a fine levied by the FTC. Apparently he has violated the Children's Online Privacy Protection Act. Read coverage by Jeff Jarvis here.

Hat tip to Daniel Solove at Concurring Opinions.

Lest you think that the FTC action is an isolated occurence, here are accounts of other litigation with which the Jolly Old Elf has had to deal.

Emotional distress and environmental lawsuits
Lawsuit filed over Santa's trampling of Grandma

By the way, can Santa sue you over those tempting (but calorie-laden) treats you leave him under the tree? Fear not. Check out this waiver.

A Gift Idea For the Sherlock Holmes Fancier

2011-12-21T10:38:00.000-05:00

For the Sherlock Holmes fan who has nearly everything, perhaps a Holmes-themed stay at a London hotel? Check out this article at msnbc.com for ideas.

The Top Law-Related TV Series For 2011

2011-12-20T22:53:00.000-05:00

A number of law-related television series have made various "top ten" critics' lists for the year, including Justified, Boardwalk Empire, Southland, The Good Wife, Homeland, and Treme. Here are some lists, compiled by Tim Goodman of The Hollywood Reporter, Adam Vary (listing the AFI's picks) and Willa Paskin of New York Magazine. Here's a link to Metacritic's comprehensive collection of critics' lists.

Here are my choices, some for their originality, some for presenting us with really good acting and writing in nearly every episode, and some because they're just a lot of fun. In alphabetical order they are: Boardwalk Empire, Breaking Bad, Drop Dead Diva, The Good Wife, Justified, The Mentalist, Person of Interest, Sherlock, Treme, and True Blood.

Which shows are your choices for the best law-related tv series of this year?

Comparative Latin American Law

2011-12-20T12:07:00.001-05:00

José Calvo González, University of Malaga, has published "Justianiano en Latinoam érica. Una crónica sobre Técnica legislativa en Derecho comparado", in Cuadernos Electrónicos de Filosofía del Derecho [CEFD] (Universitat de València), n.24 (2011), pp. 22-36. Here is the abstract.

The text reviews the initiatives and development policy from the legislative power in Argentina and Nicaragua have forged in recent collections of their respective legal systems. Such compilations are the Argentine Legal Digest and Nicaraguan Legal Digest and have responded to principles early clearance, inventory, harmonization, normative consolidation and unification of legislation. The author is interested in the achievements of his legislative program of technical development, as well the extent of such approaches in legal and political terms of contribution to legal security and strengthening the rule of law.

Download/read the text (in Spanish) at the link.

Professor Moriarty

2011-12-18T12:00:00.000-05:00

Reviewing the new Sherlock Holmes movie, the Huffington Post's David Germain notes that Professor Moriarty actually appeared in only two Sherlock Holmes stories. Yet he now stands as the ultimate Holmes enemy, says Mr. Germain, "the grandfather of all super-villains." Someone as cerebral and as superior as Holmes needs a rival as clever and as powerful as Moriarty. More here.

British Gun Control and the American Revolution

2011-12-15T15:52:00.000-05:00

David B. Kopel, Denver University College of Law, is publishing How the British Gun Control Program Precipitated the American Revolution in the Charleston Law Review. Here is the abstract.

This Article chronologically reviews the British gun control which precipitated the American Revolution: the 1774 import ban on firearms and gun powder; the 1774-75 confiscations of firearms and gun powder, from individuals and from local governments; and the use of violence to effectuate the confiscations. It was these events which changed a situation of rising political tension into a shooting war. Each of these British abuses provides insights into the scope of the modern Second Amendment.

From the events of 1774-75, we can discern that import restrictions or bans on firearms or ammunition are constitutionally suspect — at least if their purpose is to disarm the public, rather than for the normal purposes of import controls (e.g., raising tax revenue, or protecting domestic industry). We can discern that broad attempts to disarm the people of a town, or to render them defenseless, are anathema to the Second Amendment; such disarmament is what the British tried to impose, and what the Americans fought a war to ensure could never again happen in America. Similarly, gun licensing laws which have the purpose or effect of only allowing a minority of the people to keep and bear arms would be unconstitutional. Finally, we see that government violence, which should always be carefully constrained and controlled, should be especially discouraged when it is used to take firearms away from peaceable citizens. Use of the military for law enforcement is particularly odious to the principles upon which the American Revolution was based.

Download the article from SSRN at the link.

A New Website To Search Supreme Court Decisions

2011-12-15T14:08:00.001-05:00

Faculty at Michigan State University Law School and Emory University School of Law announce a new website, LegalLanguageExplorer (in beta test). Julie Seaman, a faculty member at Emory, urges people to try out the site.

Check it out and please feel free to share with others including blogs, etc. We would love to get some web-traffic so we can identify bugs, etc. and make the site better for everyone.

Feel free to play around with the site - have your students try it out - it is tons of fun!

HERE IS THE BASIC IDEA OF THE SITE:

For Free, we offer you the chance to search the history of the United States Supreme Court (1791-2005) for ANY PHRASE and get a frequency plot and the full text case results for that phrase. Additional corpora such as US Ct. of Appeals Coming Very Soon!

We are just getting started here with this project and anticipate many features that will be rolling out to you in the near future. We have announced it to world - so please feel free to share it with others.

In addition, as we are still in Beta Pre-Release -- please feel free to send us your feedback / comments on the site. Subject to resource and feasibility limitations, we are looking to make improvements to the site as we go.

SCOPE OF COVERAGE: In the current version, we are offering FULL TEXT results for EVERY decision of the United States Supreme Court (1791-2005). We plan to soon expand to other corpora including the U.S. Court of Appeals, etc.

BASIC FEATURES:

Instant Return of a Time Series Plot for One or More Comma Separated Phrases.

When you access the site, the default search is currently interstate commerce, railroad, deed (with plots for each of the term displayed simultaneously).

Feel free to test out ANY phrase of Up to Four Words in length.

Here are just a few of our favorites:

Habeas Corpus 

Clear and Present Danger

Custodial Interrogation

Due Process

Economics

Unconstitutional

 Property

Privacy

FULL TEXT CASE ACCESS:

Each of the Phrases you search will be highlighted in Blue. If you click on these highlighted phrases you will be taken to the full list of United States Supreme Court decisions that employ the selected phrase.

Click to export the list to Excel or Click on an individual case and you will be able to access this case for free thanks to Carl Malamud at Public Resource.org (a Google Sponsored Public Interest Non Profit).

ADVANCED FEATURES:

Check out the advanced features including normalization (controlling for docket size) and alternative graphing tools.

PAPER: Daniel Martin Katz, Michael J. Bommarito II, Julie Seaman, Adam Candeub & Eugene Agichtein, Legal N-Grams? A Simple Approach to Track the ‘Evolution’ of Legal Language in Proceedings of Jurix: The 24th International Conference on Legal Knowledge and Information Systems (Vienna 2011) available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1971953

HELP / TUTORIAL:

Go Here and You Will Be Directed to a Brief Slide Based Tutorial Designed to Highlight Various Functions Available on the Site. http://www.slideshare.net/Danielkatz/legal-language-explorer-com-tutorial

Again, I hope you enjoy the site. Please feel free to send along any feedback. This is just phase one - there are lots more really cool features to come.

Others involved in creating the site are Daniel Martin Katz (MSU), Adam Candeub (MSU), Eugene Agichtein (Emory), and Michael J. Bommarito.

All In the Family

2011-12-12T12:19:00.000-05:00

The New York Times' Dave Itzkoff discusses incest on tv in three current HBO series, Boardwalk Empire, Game of Thrones, and Bored To Death. (Hmmm, talk about keeping it in the family). And by the way, what is that language they're speaking on Game of Thrones?

Theodor Mommsen's View of Roman Public Law

2011-12-10T11:39:00.000-05:00

Fabio Espitia Garzon, Universidad Externado de Colombia, has published Dictadura,'Estado De Sitio' Y Provocatio Ad Populum En La Obra De Mommsen (Dictatorship, 'State of Siege' and Provocatio Ad Populum in the Works of Mommsen) in number 21 of the Revista de Derecho Privado (2011). Here is the abstract.

In this contribution the author returns to the Mommsen’s Roman Public Law, to establish if addressing issues of dictatorship and provocatio ad populum, the imposing German jurist also adopted bourgeois ideology, and in doing so superposed ideas and schemes foreign to the Roman concepts, ignoring the specificity of the different powers granted in the Roman dictatorship. The author indicates that the view of Mommsen’s Roman dictatorship reflects the design of Montesquieu, ignoring that this attribution was a summa potestas limited only in some cases led to discretionary exercise of criminal repression; hence the easy confusion between dictatorship and tyranny as a form of government, this confusion is characteristic of bourgeois thought. Likewise, the author notes that the Mommsen’s proposal also ignore Machiavelli, who asserted that no dictator ever caused to the republic than benefits, and emphasized its temporary and limited powers, and Rousseau, who remembered that a dictator could in certain cases suspend civil liberties but without ever undermining them.

Download the full text of the article from SSRN at the link. NB: the text is in Spanish.

Haldane In Context

2011-12-09T11:38:00.000-05:00

David Schneiderman, University of Toronto Faculty of Law, has published Haldane Unrevealed, in volume 57 of the McGill Law Journal (2012). Here is the abstract.

When historians proffer historical truths they “must not merely tell truths,” they must “demonstrate their truthfulness as well,” observes Hackett Fisher. As against this standard, Frederick Vaughan’s intellectual biography of Richard Burdon Haldane does not fare so well. Vaughan argues that Viscount Haldane’s jurisprudential tilt, which favoured the provinces in Canadian federalism cases before the Judicial Committee of the Privy Council (JCPC), was rooted in Haldane’s philosophizing about Hegel. He does so, however, without much reference to the political and legal currents within which Haldane thought, wrote, and thrived. More remarkably, Vaughan does not derive from his reading of Haldane and Hegel any clear preference for the local over the national. We are left to look elsewhere for an explanation for Haldane’s favouring of the provincial side in division-of-powers cases. Vaughan additionally speculates about why Haldane’s predecessor Lord Watson took a similar judicial path, yet offers only tired and unconvincing rationales. Vaughan, lastly, rips Haldane out of historical context for the purpose of condemning contemporary Supreme Court of Canada decision-making under the Charter. Under the guise of purposive interpretation, Vaughan claims that the justices are guilty of constitutionalizing a “historical relativism” that Vaughan wrongly alleges Hegel to have propounded. While passing judgment on the book’s merits, the purpose of this review essay is to evaluate the book by situating it in the historiographic record, a record that Vaughan ignores at his peril.

Download the essay at the link.

Justinian's Influence

2011-12-09T11:33:00.000-05:00

Mariateresa Cellurale, Universidad Externado de Colombia, has published Romani Y Gothi En Italia. La Comunión De Derecho En La República Unida De Justiniano (Romani and Gothi in Italy: The Community of Law in Justinian’s United Republic) in Revista de Derecho Privado, no. 21 (2011). Here is the abstract.

The pragmatica sanctio pro petitione Vigilii of 554 did not extend Justinian’s codes to Italy, but rather reaffirmed more vigorously the obligation to apply such codes which had entered into force since the very moment of their previous transmission sub edictali programmate. The Ostrogoth kings acted as magistrates of the Empire and guardians of Roman law, which was applied as ius commune for Goths and Romans, while at the same time the “national” Goth law remained in force, in accordance to the federative principle that was the basis for the building and expansion of the imperium populi Romani.

Download the article from SSRN at the link.

Law, Cultural Anthropology, and Rehabilitation

2011-12-07T16:53:00.000-05:00

José Calvo González, University of Malaga School of Law, has published Odia el delito, y compadece al delincuente». Memoria de Correccionalismo, Antropología cultural y Literatura popular [Hate crime, and pity the criminal». Memory of Correctionalism, Cultural anthropology and Popular literature] in the online journal ISLL Papers. Here is the abstract.

The work covers the circumstances of misleading ascription to the writer Concepción Arenal (1820-1893) as creator the slogan "Hate crime, and pity the criminal". Place the place and date on which this author is mentioned and its context and scope. Determines the direction of the reference according theory of correctionalism to a new horizon; that of social reintegration based on the principle of fraternity. Also use of cultural anthropology and popular literature to show the excesses and deficits of interpretation of the idea of fraternity among the pious institutions (Compagnia del Santissimo Crocifisso in Italy, XVI-XIX centuries) and mendicant groups (Hermandad de Ciegos de Madrid in Spain, XVI-XIX centuries) related to offenders sentenced to death. Finally, the Author suggests that the motto "Hate crime, and pity the criminal" back in the news as a marker of our convictions in the field of public morality and the idea of Human Dignity.

Download the article at the link.

Chinese Legal Philosophy

2011-12-07T16:46:00.000-05:00

Alex Chu Kwong Chan and Angus Young, Department of Accountancy, Hang Seng Management College; School of International Law, Southwest University of Political Science and Law, Centre for International Corporate Governance Research, Victoria University, have published Reinterpreting the Chinese Legal Doctrine of Li: Beyond Rites, Ritual and Ceremonies. Here is the abstract.

For thousands of years Chinese scholars had characterized China’s system of regulation as li yi zhi bang. This literally means that China is governed by the doctrine of li. However, there a general misconception that the doctrine of li was conceived by Confucius, in fact it predates his birth. This paper aims to re-examine this doctrine with the aid of Chinese classics from 1100 B.C., in conjunction with Confucius’s works to explain the meaning and workings of this regulatory concept. Li is multifaceted, versatile, and dynamic doctrine because it more than mere rituals, rites, and ceremonies. It is a form of non-legal and non-rule based regulatory doctrine that centre upon virtue, actualized and practiced through unwritten codes of conduct and behavior. This regulatory doctrine is also varies according to the social hierarchy between individuals, the context of the application, and the heritage of a particular li. The ultimate goal of li to create a civil society, where everyone is in tune with the cosmic order that li is a sub set. Thus, this pre-modern regulatory doctrine has elements of natural law. Yet, the plurality of this regulatory doctrine appears to be similar to postmodernist views about law and regulation.

Download the text of the paper from SSRN at the link.

Cross-Currents: Reassessing a Relationship Between French and Louisiana Law

2011-12-07T16:39:00.000-05:00

Benjamin West Janke, Baker, Donelson, Bearman, Caldwell & Berkowitz, and François-Xavier Licari, University of Metz Faculty of Law have published Des rives de la Seine à celles du Mississipi: le fabuleux destin de la maxime contra non valentem agere non currit praescriptio (From the Banks of the Seine to Those of Mississipi: The Fabulous Destiny of the Maxim Contra Non Valentem Agere Non Currit Praescriptio) at 63 Revue Internationale de Droit Comparé, Vol. 63, 809 (2011).

The relationship between Louisiana and France is not limited to written law. It also exists in one important extra-codal principle of prescription law: "contra non valentem agere non currit praescriptio". In this regard, the juridical parenthood is tight. We will show that "contra non valentem" in Louisiana is the fruit of French doctrine and jurisprudence. Furthermore, we will bring to light the noticeable similarity of the maxim’s fate in France and Louisiana. Courts in both jurisdictions proclaimed it as dead, but despite the antagonism it faced, contra non valentem evolved as a major component of prescription’s institution. Finally, we will dispel a deep-rooted myth that contra non valentem does not apply to the domain of acquisitive prescription and reveal another strong convergence between Louisiana and France.

La relation entre la France et la Louisiane ne se limite pas au droit légiféré. Elle se manifeste aussi en ce qui concerne un important principe non écrit du droit de la prescription: "contra non valentem agere non currit praescriptio". En ce domaine, la parenté juridique est étroite. En Louisiane, "contra non valentem" est le fruit de la doctrine et de la jurisprudence françaises. Nous mettrons aussi en lumière la similarité notable entre le destin de la maxime en France et en Louisiane. Dans ces deux pays, les tribunaux l’ont déclarée morte, mais malgré l’hostilité à laquelle elle a été confrontée, elle est devenue une pièce majeure de l’institution de la prescription. En dernier lieu, nous briserons le mythe bien enraciné selon lequel contra non valentem ne s’applique pas en droit louisianais de la prescription acquisitive, révélant ainsi une autre convergence de taille entre la France et la Louisiane.

Download the article from SSRN at the link.

They Shouldn't Have Gone On; They Went On

2011-12-07T12:53:00.000-05:00

James C. Oldham, Georgetown University Law Center, is publishing Only Eleven Shillings: Abusing Public Justice in England in the Late Eighteenth Century in the volume for 2012 of The Green Bag. Here is the abstract.

This eleven-shilling tempest started in 1786 in a local Court of Requests in Yarmouth, then generated, sequentially, a perjury indictment, three jury trials at the assizes (all before special juries), a jury verdict for £3,000 with costs of £800, an indictment for libeling the public justice of England, and a fourth jury trial (also before a special jury). Among the questions that the proceedings invite are: Why did the parties risk being bankrupted by this seemingly trivial dispute? How open to challenge were jury verdicts? When could a jury verdict be overturned because the damages assessed by the jury were considered by the reviewing court to be excessive? Could a jury verdict be thrown out based on a post-trial affidavit of one or more of the jurors claiming that the verdict had been reached by an improper method? How impressionable were the jurors, even special jurors, in response to the eloquence and forensic skills of the barristers? Who ultimately paid for the preparation and conduct of this pile of proceedings?

Download the article from SSRN at the link.

Arizona Attorney's Creative Arts Competition--For Attorneys!

2011-12-06T18:44:00.000-05:00

Arizona Attorney has announced its Arts Competition for 2012. More here from the magazine.

Critical Autopoiesis: Law and the Environment

2011-12-06T13:55:00.001-05:00

Andreas Philippopoulous-Mihalopoulos, University of Westminster, the Westminster International Law and Theory Centre, has published Critical Autopoiesis: The Environment of the Law, in Law's Environment: Critical Legal Perspectives (Bald de Vries and Lyana Francot eds.; The Hague, Eleven International Publishing, 2011). Here is the abstract.

Law and Environment enter a connection of disrupted continuum. The recent 'turns' in law towards materiality, spatiality, corporeality, disconnect the usual distance between law and its environment and enhance the visibility of materiality continuum between the two. Law is no longer abstract but spatially emplaced, corporeally felt, materially present. The environment, be it in the form of human/non-human bodies, technology, weather phenomena, and the wider, open ecology of material presence, destabilises the system, rendering it more precarious and more distant from its usual self-description.

Building on Luhmann's theory of autopoiesis, I present my reading of what I call Critical Autopoiesis, namely the autopoietics of materiality, spatiality and corporeality as they emerge from contemporary legal theory. I am employing Deleuze and Guattari in connection to Luhmann in order to multiply and indeed fractally explode the Luhmannian boundaries between law and its environment.

Download the essay from SSRN at the link.

Some New Books Of Interest

2011-12-01T15:18:00.001-05:00

Reading over the holidays?

Bailey, Quentin, Wordsworth's Vagrants: Police, Prisons, and Poetry in the 1790s (Ashgate Publishing Company, 2011).

Freeman, Nicholas, 1895: Drama, Disaster, and Disgrace in Late Victorian Britain (Edinburgh University Press, 2011).

Voss, Ralph F. ,Truman Capote and the Legacy of "In Cold Blood" (University of Alabama Press, 2011).

Rex Stout's Influences

2011-12-01T15:02:00.001-05:00

Ross E. Davies, George Mason University School of Law & The Green Bag, and Cattleya M. Concepcion, The Green Bag, have published Fore-Shadowed: Where Rex Stout Got the Idea for Fer-De-Lance, at 2012 Green Bag Almanac and Reader 151. Here is the abstract.

Researchers describing the discovery of something they are not equipped to fully understand run the risk that their reach will exceed their grasp. And so, as mere enthusiastic newcomers to the study of author Rex Stout, we will limit ourselves to: (1) reporting that we have run across an early (1916) detective story written by Stout and (2) sharing a few thoughts that would likely occur on first reading to anyone - and especially a lawyer - familiar with Stout’s later (beginning in 1934) detective stories featuring his Nero Wolfe and Archie Goodwin characters.

Download the article from SSRN at the link.

An Artistic Mystery In Edinburgh

2011-12-01T12:28:00.000-05:00

Over the past few months an unidentified someone has left ten paper miniatures in various cultural sites and libraries around Edinburgh to signal her (and it seems to be a her) gratitude for the inspiration that the humanities bring to our lives. The miniatures are made from appropriate materials--in the case of a mini Tyrannosaurus Rex, a copy of Sir Arthur Conan Doyle's The Lost World. More here (discussion and photographs) from the site Community This Is Central Station and Krulwich's blogpost The Library Phantom Returns!

A Charles Dickens Exhibit

2011-12-01T11:32:00.000-05:00

Care for a little Dickens with your December? The British Library has mounted a new exhibit, A Hankering After Ghosts: Charles Dickens and and the Supernatural, which features, in addition to materials from "A Christmas Carol" (we have to see those), a letter from Dickens to his wife Catherine (marital flap), and documentation of his views on spiritualism (he had his doubts). More on the exhibit, Dickens, ghosts, general spookiness, and whether the writer might just have gotten his idea for one ghost story from another author from the Guardian.

Law, Politics, Poland, and "High Noon"

2011-11-28T18:20:00.000-05:00

Michal Kuz, Louisiana State University Department of Political Science, has published 'High Noon' and Polish Republican Symbolism in Relation to American Political Culture. Here is the abstract.

This paper examines the fate of certain Polish republican symbols and notions with reference to the American political culture. It focuses especially on the image of Gary Cooper from High Noon that became a widely recognized symbol of the first Polish free elections after World War II. The histories of modern Polish and American republicanisms are, however, intertwined since the very beginning of both traditions of political thought. Unfortunately, because of unfavorable geopolitical circumstances and internal turmoil Poles lost their first state. Hamilton wrote that due to its 'anarchy and weakness' Polish-Lithuanian Commonwealth was: 'unfit for self-government and self-defense' (Federalists 2001, 94). This anarchy, embodied by the liberum-veto rule, was, nevertheless, a corrupted form of political individualism that made Polish political culture so similar to the American one. In line with that tradition when in 1989 for the first time since World War II time Polish citizens voted in elections over which Moscow had no substantive influence, the pro-democratic Solidarity block used a picture of Garry Cooper from the film 'High Noon' on its posters. The sheriff, who wore a 'Solidarity' badge was; holding not a gun, but a folded ballot. 'July the 6th, 'High Noon' - said the slogan. The message was clear. It said that it is time for every citizen to make an individual decision about what he thinks is right and do so disregarding the multitude of those, who may want to oppose such a decision. Referring to that specific film suggested that even against the many, the cause of the democratic opposition would prevail. Indeed this approach may be deemed the positive 'liberum veto.'

Download the paper from SSRN at the link.

A "Reverse CSI Effect"?

2011-11-28T18:16:00.000-05:00

Mark Godsey, University of Cincinnati College of Law, and Marie Alou have published She Blinded Me with Science: Wrongful Convictions and the 'Reverse CSI-Effect' in volume 17 of Texas Wesleyan Law Review (2011). Here is the abstract.

Prosecutors in the United States are often heard to complain these days of the "CSI-effect.'' Jurors today, the theory goes, have become spoiled as a result of the proliferation of these "high-tech" forensic shows, and now unrealistically expect conclusive scientific proof of guilt before they will convict. What I have come to notice, however, is a different kind a reverberation from the CSI-type shows that I believe often hurts defendants and benefits the prosecution. While not reported or discussed in the popular media as is the "CSI Effect," the other side of the coin, which I will call the "Reverse CSI Effect:' may be more damaging to the criminal justice system and the interests of justice than the opposite impact of which prosecutors complain. The "Reverse CSI Effect," as I call it, can be stated as follows: while jurors may have come to expect, as a result of CSI-type shows, high-tech forensic testimony in criminal cases, and may inappropriately acquit when such evidence is lacking, these same jurors, as a result of these same CSI-type shows, often place too much weight on forensic evidence in cases where forensic evidence IS in fact produced by the prosecution, resulting in convictions in cases where the defendant probably should have been acquitted.

Download the article from SSRN at the link.

The Reception of the Code Napoleon In the German States

2011-11-28T17:57:00.000-05:00

T. T. Arvind, University of York, York Law School, and Lindsay James Stirton, University of Sheffield Law School, have published Explaining the Reception of the Code Napoleon in Germany: A Fuzzy-Set Qualitative Comparative Analysis, at 30 Legal Studies 1 (2010). Here is the abstract.

This paper examines the diverse responses of the German states to the Code Napoleon at the beginning of the nineteenth century. These states differed both in the extent to which they adopted the Code, and the extent to which they retained the Code after Napoleon’s influence waned. In order to identify the causes of adoption and retention of the Code, we use fuzzy-set qualitative comparative analysis (fsQCA). This method is now well established in comparative research in the social sciences but has been little used in comparative legal analysis. We find the following to be among the conditions relevant to the reception of the Code: territorial diversity, control by Napoleon, central state institutions, a feudal economy and society, liberal (enlightened absolutist) rule, nativism among the governing elites and popular anti-French sentiment. The paper also serves to demonstrate the potential of fsQCA as a method for comparative lawyers.

The full text is not available from SSRN.

Husbands, Wives, and Early Federalist Thought

2011-11-28T17:44:00.001-05:00

Angela Fernandez, University of Toronto Faculty of Law, has published Tapping Reeve, Nathan Dane, and James Kent: Three Fading Federalists on Marital Unity. Here is the abstract.

Tapping Reeve wrote in his treatise on the law of husband and wife, Baron and Femme (1816), that husband and wife were not one person in law. His rejection of Blackstone’s maxim is not as well-known as it should be. Yet, his position was not idiosyncratic, as it was also adopted by Nathan Dane in his important General Abridgment and Digest of American Law (1823). However, James Kent did not follow it in his Commentaries on American Law (1826-30). This paper explores whether Dane’s agreement with Reeve in rebelling against marital unity was based on their New England background (Reeve lived in Connecticut and Dane in Massachusetts), which Kent (from New York) simply did not share. Reeve, Dane, and Kent were all “Fading Federalists,” using their legal expertise and their position as law book writers and law teachers as a way to continue to exert influence lost to them in the political world. They turned to the creation of an American common law as a way to continue to have influence on what America would become. Like Reeve, Dane was involved in various moral campaigns, including the temperance movement, which was an early kind of women’s movement. He was also religious like Reeve and against slavery -- according to some, Dane was responsible for the anti-slavery clause in the North West Ordinance. Kent was not interested in these causes or interests and, indeed, considered those who were to be fanatics or zealots. This helps explain why, when he wrote about married women he was inclined to choose the traditional English approach, Coke and Blackstone, over the indigenous position that jurists in New England were cultivating that sought to emphasize the rights of married women.

Download the paper from SSRN at the link.

Don Quixote and Law

2011-11-17T12:47:00.005-05:00

From Jose Calvo González, University of Malaga, the announcement of a conference at the Centro de Ciências Jurídicas, Universidade Federal de Santa Catarina (Florianópolis. Brazil), organized by Dr. Luis Carlos Cancellier de Olivo, and as part of the de Pos-Graduação en Direito. The conference, "Seminar on Law and Literature," will take place from November 28 to December 2, 2011. As part of the Conference, Professor Calvo González will give a talk, "Don Quixote and Law." He will also deliver the closing lecture, "Puppetry and Law: Sancho´s Justice and judgements in the puppet opera " VIDA DO GRANDE D. Quixote de la Mancha e do gordo Sancho Pança, by António José da Silva.(1705-1739)."

Crime On Display

2011-11-13T19:20:00.000-05:00

Laura Huey, University of Western Ontario, has published Crime behind the glass: Exploring the sublime in crime at the Vienna Kriminalmuseum at 15 Theoretical Criminology 381 (November 2011). Here is the abstract.

Scholars have noted an ever-increasing growth in the number of crime-themed leisure and tourism venues. Within this article I examine one such site: the Vienna Kriminalmuseum. An analysis of this site provides an opportunity to explore how the ‘sublime in crime’ is presented to the Museum’s visitors in ways that intentionally merge the macabre with the educational. This presentation says much, I suggest, not only about the Museum’s goals, but about its intended audience, an audience seeking to be exposed to elements of the darkest side of humanity, now sanitized for wider public consumption through the union of educational and entertainment strategies.

Hat tip to NuT.

More On the Intersection of Bob Dylan and the Law

2011-11-10T14:11:00.000-05:00

Another lawyer inspired by Bob Dylan's work: Philadelphia's Tom Kline. More here.

Upcoming Events

2011-11-09T18:29:00.001-05:00

A wonderful list of upcoming conferences, workshops, and other events in the legal history area from Rechtgeschiedenis Blog.

The Poetry of (the) Law

2011-11-09T18:25:00.000-05:00

John C. Kleefeld, University of Saskatchewan, College of Law, has published From Brouhahas to Brehon Laws: Poetic Impulse in the Law, at 4 Law and Humanities 21 (2010). Here is the abstract.

Over the ages and across the lands, poetry and the law have coming led in courtroom and classroom, debuted together in judicial decisions and dissents, and emerged as one in systems as diverse as the Courts of Equity and the law of the brehons - the poet-judges of ancient Ireland. Lyrical language and the poetic impulse have thus helped to inform, persuade, and advance the law.

Under the literary conceit of a time travel, the author considers the persistence of poetry in law, addressing the artistic expression of devotees and the commentary of critics. Manifestations of the poetic impulse include poetry as ornament to legal argument, judgments written in poetic form (hence the brouhahas), and the use in law of metre, metaphor, imagination, ambiguity, alliteration, and rhyme. The role of poetry in legal education, from Coke's Reports in Verse to law school haiku, is also traversed. Accompany the author on his journey through the legal ages and hear his case for a continued, albeit cautious, role for poetry-in-law.

The Hanseatic League As a Functional Overlapping Competing Jurisdiction

2011-11-08T14:51:00.000-05:00

Alexander Fink, University of Leipzig, has published The Hanseatic League and the Concept of Functional Overlapping Competing Jurisdictions. Here is the abstract.

In light of the concept of functional overlapping competing jurisdictions (FOCJ) discussed by Frey and Eichenberger (1996, 1999, 2000) I analyze the Hanseatic League; the medieval association of northern European traders and cities that existed from the 12th to the 17th century. I show that the Hanseatic League came close to representing an example of a FOCJ. But in contrast to the FOCJ outlined by Frey and Eichenberger, I find that the polycentric Hanseatic League was not a political authority with the power to tax and regulate its members. The arrangements between the members of the Hanseatic League therefore had to be self-enforcing. Building on my investigation of the Hanseatic League, I further provide a general discussion of the costs and benefits of a central political authority in a system of functional overlapping competing units.

Download the paper from SSRN at the link.

NPR's Three Books: Suggestions For Good Reading Help Clarify Connections Between Law and Society

2011-11-07T11:17:00.001-05:00

NPR has started a new series, Three Books, in which commentators share a personal story or discuss an issue of interest to them and then recommend three books that carry on the theme. In his essay, NPR's Tony D'Souza reflects on the divergent career paths he and a childhood acquaintance have taken and suggests examining these crime novels for a more nuanced understanding of the interaction of crime and society. More from the NPR series Three Books here, from Bruce Machart, who discusses a friend's encounter with the legal system after a family tragedy, and asks why we gobble up novels about murder, and here, from Lisa Tucker, who talks about Hallowe'en and fall.

Even more Three Books selections here.

Bram Stoker's Journal To Be Published

2011-10-31T23:33:00.001-04:00

A "bloody good" (or a "bloody" good) story for Hallowe'en: the discovery of author Bram Stoker's journal on his descendant's Isle of Wight bookshelf. Noel Dobbs didn't know what he had until someone doing research contacted him to ask if he might have some information about Stoker's journal. Mr. Dobbs checked, and found the slim volume. Another relative, great-grand nephew Dacre Stoker, who resurrected a Bram Stoker novel called Dracula: The Un-Dead (due out next year) will also help publish the journal. The Lost Journal will also appear next year, the 100th anniversary of the death of Dracula's author.

Indigenous Peoples and the Protection of Intellectual Property: The Case of the Zia

2011-10-28T13:10:00.001-04:00

Stephanie B. Turner, Yale Law School, is publishing The Case of the Zia: Moving Beyond Intellectual Property Laws To Protect Cultural Rights, in the Chicago-Kent Journal of Intellectual Property. Here is the abstract.

This Article focuses on an ongoing dispute in trademark law: the case of the Zia. Located near Albuquerque, New Mexico, this Native American pueblo has been using its sacred sun symbol in religious ceremonies since 1200 C.E. The symbol now appears on the New Mexico State flag, letterhead, and license plate, and on commercial products ranging from chemical fertilizers to portable toilets. The tribe claims that the State appropriated the symbol without permission in 1925, and that the continued use of the symbol by various parties dilutes its sacred meaning and disparages the tribe in violation of Section 2(a) of the Trademark Act. This Article tells the Zia story, focusing on the harms the tribe faces when others appropriate its symbol and the possible solutions. It concludes by suggesting that indigenous groups like the Zia should move beyond intellectual property laws in the fight to protect their cultural rights.

Download the article from SSRN at the link.

Law, Narrative, and Health Care

2011-10-28T13:04:00.000-04:00

Kenneth D. Chestek, Indiana University School of Law (Indianapolis) has published Competing Stories: A Case Study of the Role of Narrative Reasoning in Judicial Decisions. Here is the abstract.

Within minutes after President Obama signed into law the Patient Protection and Affordable Care Act (derisively referred to by some as the “Obamacare” law), the lawsuits started flying. Literally dozens of suits were filed all across the country. Some were frivolous, but many others raised serious issues of federalism and the reach of Congress’ power under the Commerce Clause.

Of the initial spate of lawsuits, ultimately five were decided by various trial courts on the merits of the Commerce Clause issue. Three judges found the law constitutional, and two others found it unconstitutional. But since the issue is almost purely a question of law (it is the same Commerce Clause and the same body of Supreme Court precedent interpreting it in all five cases), the question arises: why did these cases come out differently?

The mainstream media has seized upon a political explanation: the three judges who found the law constitutional were appointed by Democratic Presidents, while the two judges who found the law unconstitutional were appointed by Republican Presidents. This article challenges that assumption, and suggests a more nuanced explanation: each of the plaintiffs in these cases had different stories to tell. The article explores narrative reasoning (defined as norm-based thinking instead of pure rule-based reasoning) as a possible explanation for the divergent results in these cases.

Download the paper from SSRN at the link.

2011-10-27T18:34:00.000-04:00

Michael Lobban has published Legal Theory and Judge-Made Law in England, 1850-1920 as Queen Mary School of Law Legal Studies Research Paper No. 91/2011. Here is the abstract.

Many nineteenth century jurists agreed that John Austin’s separation of the spheres of law and morality lay the foundations for a scientific analysis of law. However, they remained uneasy with his definition of law as the command of a sovereign, preferring to speak of rules enforced by the state. The jurists who succeeded Austin strove to analyze law in terms of rules enforced by the state, and used Austin’s tools to put order to the mass of common law materials. However, when it came to discussing how judges should develop the law, they continued to defend the interpretive approach distinctive of the common law tradition. Rather than identifying rules, this entailed applying principles found in older case law to new situations and thereby adapting the law to the changing needs of the community. Consequently, jurists who found Austin’s strict separation of law and morality a useful tool for analysis continued to feel that the interpretative work done by the judges needed to take into account the moral needs of the community, and numerous jurists argued explicitly for a connection between law and morality.

In the debates over codification of the 1860s, many judges and jurists who admired the analytical method which allowed them to make sense of a mass of legal materials resisted the aspiration to put all common law into rules. They explicitly defended the common law as a system of principles. In their view, the problems caused by the proliferation of case law resulted from judges looking to find a rule from every reported case, rather than looking to principles. They therefore argued that efforts should be made to digest the principles of the common law, which would allow the law to continue to develop flexibly by reasoning at case level. In response, a number of analytical jurists argued that if the common law could be seen to generate series of authoritative propositions, they could be codified into rules. For them, a digest was a mere preparatory to a code, where judges would apply and not make law. They specifically linked the analytical project, premised on the separation of law and morality, with the codification project. However, by the 1870s, jurists like J.F. Stephen began to separate the codification project from the analytical one. Instead of needing to find an ideal analytical model, Stephen argued, different areas of law could be codified for convenience. By the end of the century, those who argued for codification no longer felt that it would curtail the role of the judge in developing the law in an interpretive way.

The article ends by briefly looking at three jurists who accepted Austin’s analytical models, while rejecting (in various degrees) his arguments on the separation of law and morals. William Markby, John Salmond and W. Jethro Brown all argued that legal and moral norms were related, if distinct, and that judges were to look to moral sources, including the moral needs of the community, on developing the law.

Looking Back at "Buck v. Bell"

2011-10-27T17:47:00.000-04:00

Edward Larson, Pepperdine University School of Law, has published Putting Buck v. Bell in Scientific and Historical Context in volume 39 of the Pepperdine Law Review (2011). Here is the abstract.

In this article written for a law-review symposium in response to a presentation on the infamous 1927 U.S. Supreme Court opinion in Buck v. Bell, Edward J. Larson argues that, at the time that the case was decided, eugenics was on the incline, not the decline. In the 1920s, the American scientific and medical community broadly backed eugenic remedies for various forms of mental illness and retardation. Legislatures, lawyers, and jurists took their cue from this scientific and medical consensus. Absent any question that the statute at issue in Buck v. Bell was validly passed by the Virginia legislature or that due process was provided for the persons subject to its reach, the law should have withstood constitutional challenge. The tragedy of Buck v. Bell, Larson argues, was that Carrie Buck never received the due process guaranteed under Virginia’s eugenic sterilization statute and that neither her lawyers nor the courts protected her from a flagrant violation of her basic constitutional and statutory rights. Under the fact that should have been brought out at trial, Carrie Buck would not have been sterilized. More fundamentally, had due process been provided in this and other instances, while eugenics would still have been a scientific and medical mistake, it would not be a legal one.

Download the article from SSRN at the link.

Shakespeare and War Crimes Trials

2011-10-27T17:40:00.003-04:00

Will Fitzgibbon, Australian National University College of Law, has published Visions of Justice: Shakespeare and Duch’s Proposed ‘Return to Humanity’. Here is the abstract.

Completed in the first half of 2010, this thesis received a First Class and was supervised by Professor Margaret Thornton. This article provides an analysis of the story and the trial of the Khmer Rouge official, Kaing Geuk Eav, alias Duch, in the Extraordinary Chambers in the Courts of Cambodia (ECCC) through a Shakespearean lens – particularly drawing upon three plays; The Winter’s Tale, Coriolanus, and Richard III. Duch’s Defence Counsel Mr Francois Roux contended that the real question of Duch’s trial was whether ‘the hearings would allow one who has exited from humanity to return to humanity’. Using Shakespearean exempla, the essay examines the persuasiveness of Duch and his Defence team in its effort to have Duch ‘return to humanity’. This article first details Duch’s life and crimes. In what follows, this article analyses through a Shakespearean lens strengths and weaknesses of the Defence’s appeal for Duch’s ‘return to humanity’ in light of his alleged recognition of guilty and expression of remorse.

Download the thesis from SSRN at the link.

William Shakespeare: Genius or Stand-In

2011-10-25T10:50:00.002-04:00

Do filmgoers care about a movie's historical accuracy? Does an audience take the plot of a docudrama "based on historical events" literally? The Guardian has asked its readers just this question in the case of the new film Anonymous, which takes the position that someone other than William Shakespeare wrote Shakespeare.

Candidates and alternative theories abound. Did Francis Bacon actually write the plays and poems? Christopher Marlowe? The Earl of Essex? Sir Walter Raleigh? The Earl of Derby? Steven Dutch surveys some of the candidates and theories here; James Shapiro in his recent book Contested Will discusses the issue at length. Schools and institutions have sponsored symposia on the subject. Frontline presented a program on the authorship of the plays. Even Justice Stevens offers an opinion. His pick is the Earl of Oxford.

If you can't decide, you can take a fallback position on the question of who wrote Shakespeare's works. William Shakespeare.

Bibliography:

James Shapiro, Contested Will: Who Wrote Shakespeare (Simon and Shuster, 2010).

Symposium: Who Wrote Shakespeare: An Evidentiary Puzzle 72 Tenn. L. Rev 1 (Fall 2004).

VARA and Moral Rights

2011-10-24T17:51:00.000-04:00

Nathan M. Davis has published As Good As New: Conserving Artwork and the Destruction of Moral Rights in volume 29 of the Cardozo Arts & Entertainment Law Journal (2011). Here is the abstract.

American legal protections afforded to artists with respect to their own works are so narrowly focused, and the statutory language so loosely defined, that it is not clear whether certain measures to conserve artworks may have the counterintuitive, adverse effects of depriving artists of the protections contemplated in the Visual Artists Rights Act of 1990 (VARA). This Note explores problem areas in the nexus of conserving works of art and VARA jurisprudence, arguing that the statute’s narrow scope confers inconsistent and unpredictable protections over artworks such that the ever-evolving best practices of arts professionals — those who work to conserve artworks or otherwise play a stewardship role for artists’ creations — may indiscriminately jeopardize artists’ rights in their works.
Part I presents an overview of VARA from a practical perspective, contrasting the expansive scope of visual artistic media over the last one hundred years with the restrictive designations of moral rights protections, demonstrating a philosophical gap between the statute and the artworks it was designed to protect. Part II addresses the statute’s case law, which casts a divide between VARA’s application and the practical scenarios that arts professionals encounter in preserving artworks, examining two cases: Flack v. Friends of Queen Catherine and Board of Managers of SoHo International Arts Condominium v. City of New York (Board IV). Lastly, Part III suggests an amendment to VARA in order to effectuate its purpose when applied to common conservation practices and puts forward a set of guidelines for arts professionals to reduce the likelihood that conserving an artwork could jeopardize artist rights in it or otherwise run afoul of VARA’s protections.

Download the article from SSRN at the link.

The Writer and the Law

2011-10-20T18:13:00.000-04:00

John James Berry, Barry University School of Law, has published The Law, The Writer and The Work: How an Author's Interaction with the Legal System Impacts His Writing. Here is the abstract.

By tracing the lives led by four famous authors and exploring the societies which produced them, this article will show how law affects literature in ways that many readers may not notice. Rather than explore what was expressed by the author, this work will examine the affect the background of the author has on the tone of the works of literature which they produce, the affect the law and their culture's legal system had on their background, and how the characteristics of the cultures and authors reflect the characteristics of the governing legal system. Ultimately, this piece shows that, rather than a society's legal system reflecting its' underlying culture, the power of the law has the ability to shape the culture which it is supposed to serve.

Download the paper from SSRN at the link.

Amazing Guys In "Suits"

2011-10-17T17:47:00.001-04:00

Math professor and guest blogger Ed Aboufadel explains the math behind an amazing client save on the show "Suits."

Part 2 here.

Copyright In Shakespeare's Works

2011-10-17T11:52:00.000-04:00

Jeffrey M. Gaba, Southern Methodist School of Law, has published Copyrighting Shakespeare: Jacob Tonson, Eighteenth Century English Copyright, and the Birth of Shakespeare Scholarship. Here is the abstract.

In 1709, Jacob Tonson, the premier publisher of his age, purchased the “copyright” to Shakespeare. Tonson and his family over the next fifty years went on to publish some of the most significant editions of the collected works of Shakespeare, edited by the likes of Nicholas Rowe, Alexander Pope and Samuel Johnson. In many ways, the Tonsons were responsible for the growth of Shakespeare’s popularity and the critical study of his work.

This article discusses the significance of copyright to the Tonsons’ publication decisions. It suggests that the Tonson copyright did not significantly “encourage” their contributions to Shakespeare scholarship. First, Jacob Tonson could not have relied on statutory copyright for protection of his seminal 1709 Rowe edition. Tonson, quite simply, did hold the copyrights at that point, and the Statute of Anne had not yet been introduced, let alone passed, by Parliament. Second, the Tonsons’ publication of later editions would not, as some have asserted, have perpetuated any common law or statutory copyright claim Tonson might have to the works of Shakespeare. Third, although the textual notes and comments contributed by his editors may have been copyrighted, most of the significant editorial contributions to Shakespeare scholarship would not themselves have been subject to copyright protection. Selection of plays in the legitimate Shakespeare canon, for example, and selection of the appropriate text from earlier quarto and Folio editions would not have been subject to copyright protection. Fourth, the expansion of public access to cheaper, more widely available editions of the Shakespeare plays arose in spite of, rather than because of, copyright protections. It was a challenge by a book “pirate” that caused the Tonsons, not to seek legal protection through their claimed copyright, but to flood the market with their own cheap editions of the plays.

Finally, the article suggests a reason why the Tonsons, whose name appears as plaintiff in many of the early copyright cases, never sought to litigate their claim to a copyright in Shakespeare. Simply put, litigating a claim to copyright in Shakespeare would have been a poor “test case” to secure what the Bookseller’s sought at that time – a perpetual common law copyright based on the natural rights of authors.

This article suggests that copyright issues, although certainly important, were ancillary to the Tonsons’ publication decisions. Market forces, the protections from competition afforded by a Bookseller cartel, and a respect for Shakespeare’s works, more than copyright protections, appeared to drive the Tonsons’ actions and therefore the growth of Shakespeare scholarship.

Download the paper from SSRN at the link.

Fielding a Story: Tracking Down an Anecdote About David Dudley Field

2011-10-14T11:04:00.001-04:00

Ross E. Davies, George Mason School of Law, has published The Judiciary Funded: The Generosity of David Dudley Field at 14 The Green Bag 2d 433 (Summer 2011). Here is the abstract.

In mid-1894, shortly after the death of David Dudley Field (one of the most powerful and famous, and least-loved, American lawyers of the 19th century), lawyer-journalist Irving Browne published an implausibly laudatory anecdote about Field, based on a letter in which Field claimed to have engaged in a longstanding act of secret philanthropy that was wholly out of character. An experienced observer of public affairs in 1894, or in 2011, surely could be forgiven for doubting the veracity of such a self-serving, out-of-character story, told only posthumously by a friendly journalist, and with no evidence to back it up. The Gilded Age was, after all, a time when politicians and power-mongers like Field could rely on select reporters and editors to serve as virtual publicists – mixing innuendo with truths, half-truths, and non-truths (often supplied by unidentified sources) in news stories that boosted their favorites. Neither Browne nor anyone else seems to have made any effort to verify Field’s story, even though there were seemingly easy ways to do so. It is perhaps for those reasons that Browne’s parable of the secretly saintly David Dudley Field, revealed only post-mortem in all the glory of his selfless kindness and generosity, was largely ignored at the time and has been ever since. But the story is true, or true at least as to Field’s initial generosity. And there is evidence to back it up.

Download the article from SSRN at the link.

A Bibliography of Derrick Bell's Works

2011-10-13T14:11:00.002-04:00

As promised, a bibliography of Derrick Bell's books and articles, prepared by Kevin Baggett, Circulation Librarian at the LSU Law Center Library. Posted with permission.

Derrick A. Bell Bibliography

Books

1. Faces at the Bottom of the Well: The Permanence of Racism. New York, NY: Basic Books, 1992

2. Silent Covenants: Brown v. Board of Education and the Unfulfilled Hopes for Racial Reform. Oxford; New York: Oxford University Press, 2004.

3. And We Are Not Saved: The Elusive Quest for Racial Justice. New York: Basic Books, 1987.

4. Confronting Authority: Reflections of an Ardent Protester. Boston: Beacon Press, 1994.

5. Shades of Brown: New Perspectives on School Desegregation. New York: Teachers College Press, Columbia University, 1980.

6. The Age of Segregation: Race Relations in the South, 1890-1945: Essays (Co-author Robert J. Haws). Jackson: University Press of Mississippi, 1978.

7. Ethical Ambition: Living a Life of Meaning and Worth. New York: Bloomsbury: Distributed by Holtzbrinck Publishers, 2002.

8. Gospel Choirs: Psalms of Survival for an Alien Land Called Home. New York. NY: Basic Books, 1996.

9. Afrolantica Legacies. Chicago: Third World Press, 1998.

10. Race, Racism, and American Law. Boston, Little, Brown, 1973.

11. The Derrick Bell Reader (Co-authors Richard Delgado, Jean Stefancic). New York: New York University Press, 2005.

12. Civil Rights – Leading Cases. Boston: Little, Brown, 1980.

13. And We Are Not Saved: The Elusive Quest for Racial Justice. New York, Basic Books, 1989.

14. Constitutional Conflicts: Cincinnati: Anderson Pub. Co., 1997.

15. Faces at the Bottom of the Well: The Permanence of Racism. New York, NY: Basic Books, 1992.

16. Silent Covenants: Brown v. Board of Education and the Unfulfilled Hopes for Racial Reform. Oxford; New York: Oxford University Press, 2004.

17. And we are Not Saved: The Elusive Quest for Racial Justice. New York, Basic Books, 1987.

18. Confronting Authority: Reflections of an Ardent Protester. Boston: Beacon Press, 1994.

19. Shades of Brown: New Perspectives on School Desegregation. New York: Teachers College Press, Columbia University, 1980.

20. The Age of Segregation: Race Relations in the South, 1890-1945: Essays (Co-author Robert J. Haws). Jackson: University Press of Mississippi, 1978.

21. Ethical Ambition: Living a Life of Meaning and Worth. New York: Bloomsbury: Distributed by Holtzbrinck Publishers, 2002.

22. Gospel Choirs: Psalms of Survival for an Alien Land Called Home. New York. NY: Basic Books, 1996.

23. Afrolantica Legacies. Chicago: Third World Press, 1998.

24. Race, Racism, and American Law. Boston, Little, Brown, 1973.

25. Civil Rights – Leading Cases. Boston: Little, Brown, 1980.

26. Constitutional Conflicts: Cincinnati: Anderson Pub. Co., 1997.

27. When Race Becomes Real: Black and White Writers Confront Their Personal Histories (Co-Author Bernestine Singley). Chicago, Ill.: Lawrence Hill; Lancaster: Gazelle, 2004.

28. Civil Rights in 2004: Where Will We Be? College Park, Md.: Center for Philosophy and Public Policy, 1985.

29. The African American Law School Survival Guide: Information, Advice, and Strategies to Prepare You for the Challenges of the Law School Experience (Co-author Evangeline M. Mitchell). Houston, Tex.: Hope’s Promise Pub., 2006.

30. Ask Your Mama; 12 Moods for Jazz (Co authors Langston Hughes, Arnold Rampersad, and others). New York: Alfred A. Knopf, Art Farm West, 2009, 1961.

31. In Defense of Minority Admissions Programs: A Response to Professor Graglia (co-author Lino A. Graglia). Philadelphia, 1970.

Articles

Bell, Derrick A., Jr.. 2007. "A Prophesy for Effective Schooling in an Uncaring World." Boston College Third World Law Journal 27, no. 1: 1-12.

Bell, Derrick A.. 2004. "The Unintended Lessons in Brown v. Board of Education." New York Law School Law Review 49, no. 4: 1053-67.

Bell, Derrick A.. 2000. "Wanted: a white leader able to free whites of racism.." U.C. Davis Law Review 33, no. 3: 527-44.

Bell, Derrick A.. 2000. "Brown v. Board of Education {74 S. Ct. 686 (1954)}: forty-five years after the fact." Ohio Northern University Law Review 26, no. 2: 171-81.

Bell, Derrick A.. 1999. "“Here come de judge”: the role of faith in progressive decision-making." The Hastings Law Journal 51, no. 1: 1-16.

Bell, Derrick A.. 1999. "A colony at risk." Touro Law Review 15, no. 2: 347-9.

Bell, Derrick A.. 1999. "The power of narrative." Legal Studies Forum 23, no. 3: 315-48.

Bell, Derrick A.. 1999. "Getting beyond a property right in race." Washington University Journal of Law and Policy 1: 27-36.

Bell, Derrick A.. 1998. "Constitutional conflicts: the perils and rewards of pioneering in the law school classroom." Seattle University Law Review 21, no. 4: 1039-51.

Bell, Derrick A.. 1997. "California's Proposition 209: a temporary diversion on the road to racial disaster." Loyola of Los Angeles Law Review 30: 1447-64.

Bell, Derrick A.. 1997. "A gift of unrequited justice." Howard Law Journal 40, no. 2: 305-13.

Bell, Derrick A.. 1996. "Racial libel as American ritual." Washburn Law Journal 36: 1-17.

Bell, Derrick A.. 1996. "A pre-memorial message on law school teaching." New York University Review of Law and Social Change 23, no. 2: 205-15.

Bell, Derrick A.. 1995. "Black history and America's future." Valparaiso University Law Review 29: 1179-91.

Bell, Derrick A.. 1995. "1995 commencement address—Howard University School of Law." Howard Law Journal 38: 463-71.

Bell, Derrick A.. 1995. "The triumph in challenge." Maryland Law Review 54: 1691-9.

Bell, Derrick A.. 1995. "Who's afraid of critical race theory?." University of Illinois Law Review 1995: 893-910.

Bell, Derrick A. and Linda Singer. 1993. "Making a record." Connecticut Law Review 26: 265-84.

Bell, Derrick A.. 1993. "Diversity and academic freedom." Journal of Legal Education 43: 371-9.

Bell, Derrick A. and Erin Edmonds. 1993. "Students as teachers, teachers as learners." Michigan Law Review 91: 2025-52.

Bell, Derrick A.. 1993. "The racism is permanent thesis: courageous revelation or unconscious denial of racial genocide." Capital University Law Review 22: 571-87.

Bell, Derrick A.. 1993. "An epistolary exploration for a Thurgood Marshall biography." Southern University Law Review 20: 83-105.

Bell, Derrick A.. 1993. "Political reality testing: 1993." Fordham Law Review 61: 1033-43.

Bell, Derrick A.. 1993. "Learning the three “I's” of America's slave heritage." Chicago-Kent Law Review 68: 1037-49.

Bell, Derrick A.. 1993. "The permanence of racism." Southwestern University Law Review 22: 1103-13.

Bell, Derrick A.. 1992. "The Racial Preference Licensing Act. A fable about the politics of hate." American Bar Association Journal 78: 50-5.

Bell, Derrick A.. 1992. "Racial realism." Connecticut Law Review 24: 363-79.

Bell, Derrick A.. 1992. "Reconstruction's racial realities." Rutgers Law Journal 23: 261-70

Bell, Derrick A.. 1991. "Racism is here to stay: now what?." Howard Law Journal 35: 79-93.

Bell, Derrick A.. 1991. "Foreword: the final Civil Rights Act." California Law Review 79: 597-611.

Bell, Derrick A., Tracy Higgins and Sung-Hee Suh. 1990. "Racial reflections: dialogues in the direction of liberation." UCLA Law Review 37: 1037-100.

Bell, Derrick A.. 1990. "After we're gone: prudent speculations on America in a post-racial epoch." Saint Louis University Law Journal 34: 393-405.

Bell, Derrick A.. 1989. "Racism: a prophecy for the year 2000." Rutgers Law Review 42: 93-108.

Bell, Derrick A.. 1989. "Xerces and the affirmative action mystique." The George Washington Law Review 57: 1595-613.

Bell, Derrick A.. 1989. "The final report: Harvard's affirmative action allegory." Michigan Law Review 87: 2382-410.

Bell, Derrick A.. 1988. "White superiority in America: its legal legacy, its economic costs." Villanova Law Review 33: 767-79.

Bell, Derrick A.. 1988. "The republican revival and racial politics." The Yale Law Journal 97: 1609-21.

Bell, Derrick A.. 1988. "The constitution at 200: reflections on the past—implications for the future." New York Law School Journal of Human Rights 5: 331-44.

Bell, Derrick A.. 1986. "The dilemma of the responsible law reform lawyer in the post-free enterprise era." Law & Inequality 4: 231-43.

Bell, Derrick A.. 1986. "Strangers in academic paradise: law teachers of color in still white schools." University of San Francisco Law Review 20: 385-95.

Bell, Derrick A.. 1986. "Application of the “tipping point” principle to law faculty hiring policies." Nova Law Journal 10: 319-27.

Bell, Derrick A.. 1985. "The Supreme Court, 1984 term—foreword: the civil rights chronicles." Harvard Law Review 99: 4-83.

Bell, Derrick A.. 1984. "An American fairy tale: the income-related neutralization of race law precedent." Suffolk University Law Review 18: 331-45.

Bell, Derrick A.. 1984. "A tragedy of timing." Harvard Civil Rights-Civil Liberties Law Review 19: 277-9.

Bell, Derrick A.. 1984. "A holiday for Dr. King: the significance of symbols in the black freedom struggle." U.C. Davis Law Review 17: 433-44.

Bell, Derrick A., Alan Freeman, Monroe Fordham and Sidney Willhelm. 1984. "A hurdle too high: class-based roadblocks to racial remediation: a panel." Buffalo Law Review 33: 1-34.

Bell, Derrick A.. 1983. "A school desegregation post-mortem." Texas Law Review 62: 175-90.

Bell, Derrick A.. 1981. "Private clubs and public judges: a nonsubstantive debate about symbols." Texas Law Review 59: 733-54.

Freeman, Alan, Derrick A. Bell and Henry McGee. 1981. "Race, class, and the contradictions of affirmative action." The Black Law Journal 7: 270-89.

Bell, Derrick A.. 1981. "Law school exams and minority-group students." The Black Law Journal 7: 304-13.

The History of the Full Faith and Credit Clause

2011-10-13T11:03:00.000-04:00

Charles M. Yablon, Cardozo School of Law, has published Madison's Full Faith and Credit Clause: A Historical Analysis at 33 Cardozo Law Review 125 (2011). Here is the abstract.

The Defense of Marriage Act (DOMA) has created a new wave of interest in the Full Faith and Credit Clause and its apparent contradictions. Important recent scholarship has shown that American lawyers in the eighteenth century often viewed the term “full faith and credit” as referring to an evidentiary rule. This interpretation ameliorates, but does not actually resolve, the apparent conflict between the first sentence of the Clause, which seems to create a mandatory rule of sister state deference, and the second sentence of the Clause, which seems to give Congress plenary power to abrogate that rule. Rather than seek a chimerical general understanding of the Clause, this Article focuses on James Madison to provide a new and strikingly different historical account of the creation of the Full Faith and Credit Clause. It shows how the Full Faith and Credit Clause was part of a broader plan by Madison and others to curb the ability of states to take acts that were harmful to one another and to the nation, particularly those which, by interfering with vested contract and property rights, jeopardized the country’s economic well-being. Madison purposely sought a Clause that would embody a vague but dynamic deference obligation that could be increased by Congress over time.

Madison’s actions and writings regarding the Full Faith and Credit Clause strongly suggest that he would have considered congressional actions to weaken or abrogate existing deference obligations not just unwise and unjust, but unconstitutional. Unlike powers which appropriately belonged to the federal legislature irrespective of how they were exercised, Madison’s justification for the powers granted under the second sentence of the Clause was based on how Madison expected those powers to be used, namely, to “provide for the harmony and proper intercourse among the states.” What emerges from this analysis is a picture of the Full Faith and Credit Clause that has significant similarities to the “one way ratchet” interpretation which has been used to argue that the DOMA is unconstitutional, but one in which the presumed constraints on congressional action are the product of national interest, political virtue, and natural law as well as the language of the Full Faith and Credit Clause.

Download the article from SSRN at the link.

Are We In Kansas? Free Love and the Right of Privacy In State v. Walker

2011-10-13T10:54:00.001-04:00

Charles J. Reid, Jr., University of St. Thomas School of Law (Minnesota) has published The Devil Comes to Kansas: A Story of Free Love and the Law as University of St. Thomas Legal Studies Research Paper No. 11-26.

State v. Walker (1887) is an important but hitherto neglected landmark case in the development of the right of privacy. The case involved the "autonomistic" or "free-love" marriage of Edwin C. Walker and Lillian Harman, daughter of Moses Harman, the radical newspaperman.

Edwin and Lillian, who rejected state control over marriage, proclaimed themselves married in the fall of 1887, although they declared that their union was neither permanent or exclusive. Prosecuted for illegal cohabitation because of their refusal to obtain a marriage license, they and their defenders developed a vocabulary that would profoundly influence the future path of American law.

Their supporters in the radical press began to speak of the right of women to control their own bodies, woman's right to reproductive autonomy, and a right of sexual privacy. Indeed, it was in the midst of this controversy that the expression "freedom of choice" was used, probably for the first time, in its modern meaning by Lillian Harman writing from prison.

The Kansas Supreme Court, which ruled on the appeal of their convictions, was, in contrast, a deeply conservative and Christian group of men who were publicly known for their religious fidelity and who brought their religious feelings to bear in the case.

Thanks to the survival of both a substantial body of newspapers and the personal papers of the three justices who ruled on the appeal, it is possible to reconstruct a vivid account of this first skirmish in the American culture wars.

Download the paper from SSRN at the link.

Faulkner On Voting Rights

2011-10-11T18:46:00.004-04:00

Joel Heller has published Faulkner’s Voting Rights Act: The Sound and Fury of Section Five. Here is the abstract.

In its most recent examination of the Voting Rights Act, the Supreme Court told a story about the South. Although the Court ultimately did not rule on the continued constitutionality of § 5, the VRA provision that singles out certain jurisdictions with a history of racially discriminatory voting practices for additional regulation, its opinion expressed significant doubt that the measure was still justified. In this tale of progress and redemption, the Court concluded that “things have changed in the South.”
One body of commentary that was not considered in this story was the region’s literature. Yet many of these works, in particular the novels of William Faulkner, address some of the same thematic and sociological concerns that animate § 5. Specifically, Faulkner’s novels explore the power of memory in the South and the ongoing influence of the past on present actions and attitudes. In his depiction of the burden of memory, Faulkner suggests a distinct role for § 5 that policymakers and commentators should consider in the debate over its continued necessity. Rather than punishing the sons for the sins of the fathers, the provision can be seen as targeting the independent concern of a past-haunted society and the uncertain results which the unchecked power of memory can produce in the present.
This Article explores how Faulkner’s novels can contribute to a better understanding of the role § 5 serves in the modern South and thus inform the debate over whether the law remains constitutional. In doing so, it also considers the role literature can play in legal analysis beyond the uses typically identified by the law and literature movement.

Download the paper from SSRN at the link.

Enter, Pursued By Student Loans

2011-10-11T18:28:00.004-04:00

William A. Chamberlain, assistant dean, Law Career Strategy and Advancement, Northwestern University School of Law, discusses how acting skills can rev up that job search for young attorneys.

Life upon the wicked stage

Ain't ever what a girl supposes/

Stage door Johnnies aren't raging

Over you with gems and roses/

When you let a feller hold your hand

(Which means an extra beer or sandwich)

Eve'rybody whispers: 'Ain't her life a whirl?'/

Though you're warned against a roue'

Ruining your reputation/

I have played around the one-night trade

Around a great big nation/

Wild old men who give jewels and sables

Only live in Aesop's Fables/

Life upon the wicked stage

Ain't nothing for a girl.

"Life Upon the Wicked Stage", Showboat

Jerome Kern/Oscar Hammerstein II (1927)

Nineteenth-Century Contract Law

2011-10-11T18:22:00.000-04:00

Anat Rosenberg, Radzyner School of Law, Interdisciplinary Center Herzliya, has published Classical Contract Law, Past and Present. Here is the abstract.

This paper synthesizes and refocuses a wide range of histories of nineteenth-century contract law. It shows how despite significant controversies among historians, a widely shared consensus has it that nineteenth-century contract law embodied an elaborate version of individualism; that the alternatives to its individualism were status and collectivism - but they functioned as external critiques until well into the twentieth century if not ever since, and so left contract's conceptual link with individualism intact; and that the individualism grounded in contract law was in keeping with the individualism of its age.

The consensus effectively entrenches a questionable historical artifact: the idea of a single meaning of contract at the decisive era for modern contract law's development. This idea's persistence bears implications for present thought as it negotiates visions of contract, and as it explores law's constitutive effects on social consciousness.

Latin in the Law

2011-10-11T18:17:00.000-04:00

Teodor Sambrian has published Interpreting Law from the Roman Concept Interpretation to Modern Interpreting, Through the Adages of Juridical Latin in volume 5 of the Romanian Review of Private Law (2011). Here is the abstract.

The work is divided into six sections. In the preliminaries, we precise the sense of certain terms and we enumerate the most frequently used Latin adages that Romanian authors do mention while interpreting law. In the second and third sections, we do discuss the main causes which brought as necessary the development of interpreting law as an institution. The interpreting forms employed in Roman law are evoked. We do approach the methods used for interpreting law (in the fourth section) and we propose the substitution of the designation as "grammatical interpreting" by the designation: "linguistical interpreting", understood as an aggregate of procedures used for analysis – in etymology, semantics and grammar – in order to elucidate the sense of a normative or juridical act. The fifth section, the most extended one, is dedicated to the Roman principles and rules applied in order to interpret law, and to the way through which they were transferred, through juridical Latin, into Romanian law. This process involves as well legislation by itself and the great juridical tomes of doctrine. In the sixth section, where conclusions are drawn, we do launch the proposal of elaborating a dictionary of juridical Latin, which ought to be more panoramic than the dictionaries of this kind published in Romania until now, and which should contain, inter alia, all the Latin words, phrases, adages and quoted passages which should be relevant, as they are actually used by Romanian works in private and public law.

The full text is not available from SSRN.

Trials In the News

2011-10-07T14:30:00.000-04:00

Commenting on the popularity of high profile trials, including those of Casey Anthony, Amanda Knox, and Conrad Murray, CNN offers a list of its top five courtroom dramas.

The Future of Law Librarianship

2011-10-06T11:53:00.001-04:00

Robert C. Berring, University of California, Berkeley, School of Law, has published The End of Scholarly Bibliography: Reconceptualizing Law Librarianship. Here is the abstract.

The dawning of the age of digital information shifts the paradigm of the traditional scholar librarian. As three dimensional representations of information wither away, [t]he scholarly legal bibliographer, a fixture in legal academia is devolving into an antiquarian. This brings into question the future of academic law librarianship and how it can be saved.

Download the paper from SSRN at the link.

A Giant Passes From the Scene

2011-10-06T11:38:00.000-04:00

Derrick Bell, the first tenured African-American professor at Harvard Law School, died Wedneday at the age of 80. According to this article, published today in the New York Times, Professor Bell suffered from carcenoid cancer. Professor Bell also taught at New York University Law School and was Dean of the University of Oregon Law School. Early on, Professor Bell espoused the use of narrative and allegory to explain the workings of law and he became one of the founders of the critical race studies movement. His contributions are many, and he will be missed.

More here from The Root, here from National Visionary Leadership Project.

I will post a bibliography of Professor Bell's works sometime in the next few days.

Musical Rhetoric in Legal Language

2011-10-03T19:04:00.001-04:00

Ian Gallacher, Syracuse University College of Law, has published The Count's Dilemma, or, Harmony and Dissonance in Legal Language in Legal Communication & Rhetoric, no. 9 (2012). Here is the abstract.

Lawyers have had a long, but ambivalent, relationship with metaphor. Viewed by some as a mere literary device, a trick of language that "adds little of substance to an argument," metaphor is seen by others as an essential component of legal language, a rhetorical device inseparable from thought. On one thing, though, all can agree: lawyers only have words to express their thoughts, so they have an obligation to use words, whether used metaphorically or not, as exactly as possible.

This article offers a critique of the way lawyers meet this obligation when they use metaphors based in musical language. In particular, the article examines the ways in which the musical term "harmony" is used as a metaphor to explain the nature of the relationship between disparate elements of the law and concludes that the metaphor fails to convey its intended meaning. In order to reach this conclusion, the article explores the meaning of "harmony" in music and then shows how the musical and assumed legal usages diverge, making "harmony" an inexact metaphor for lawyers to use. Although recognizing that "harmony" will likely continue to be used, the article proposes "tonality" as a better, more precise, alternative musical term for lawyers to use.

Download the article from SSRN at the link.

The Impeachment of Samuel Chase

2011-10-03T18:29:00.000-04:00

Adam A. Perlin has published The Impeachment of Samuel Chase: Redefining Judicial Independence at 62 Rutgers Law Review 725 (2010). Here is the abstract.

This article hopes to make the following contributions to the existing academic scholarship:

First, some legal scholars have ignored how the impeachment contributed to the modern apolitical judiciary or have construed its contribution too narrowly. This article provides a fuller explanation of the impeachment’s contributions to our modern understanding of judicial independence and what properly constitutes an impeachable offense.

Second, the article touches upon the contribution the debates over Chase’s impeachment made to more peripheral subjects, such as the debates over jury nullification and judicial review.

Third, this article fills a void in the academic literature, as there are almost no articles fully addressing the “story” of Chase’s impeachment and even fewer which analyze the importance of the debates in the House of Representatives and the examination of the trial witnesses.

Given the increasing attention devoted to judicial activism and persistent calls for the impeachment of federal judges, the lessons of the Chase impeachment are perhaps more relevant today than ever before. By addressing the issues mentioned above, this article endeavors to draw greater attention to a major event in American legal history and to give a turning point in the history of impeachment and the judicial branch the attention it deserves.

The Lindbergh Law and the Press

2011-10-03T18:24:00.001-04:00

Barry Cushman, University of Virginia School of Law, has published Headline Kidnappings and the Origins of the Lindbergh Law, in volume 55 of the St. Louis Law Journal. Here is the abstract.

The federal kidnapping statute of 1932 -- which prohibits the transportation of a kidnapped person across state lines -- is commonly known as the Lindbergh Law due to its enactment in the immediate wake of the abduction of Charles and Anne Lindbergh’s child in March of that year. Indeed, but for the commission of that crime the statute probably would not have been enacted. But the Lindbergh affair alone cannot explain the form that the congressional reaction took. For the Lindbergh baby was found murdered fewer than four miles from his home, and there was no evidence that he had been transported across a state line. Had the Lindbergh Law been in effect when young Charles Lindbergh was kidnapped, it would not have applied to the offense. In fact, the bill that ultimately became the Lindbergh law was not introduced in the wake of that sensational crime, nor was it introduced by members of the New Jersey delegation that represented the Lindbergh family and the state in which the crime had been committed. Instead it had been introduced three months before the Lindbergh abduction by Senator Roscoe Conkling Patterson of Missouri and Representative John Joseph Cochrane of St. Louis.

The congressional hearing on the bill, which took place a week before the Lindbergh kidnapping, was dominated by testimony of officials from St. Louis. Owing to its strategic location on the state border with Illinois, that city had become a center of profitable activity for the organized criminals running the midwestern "snatch racket." This essay, prepared as a comment on Professor Lawrence Friedman’s Childress Lecture on "headline trials" at St. Louis University School of Law, explores the high-profile abductions of the early 1930s that spurred St. Louis leaders to seek federal legislation to address the scourge. These included kidnappings of scions of the Anheuser-Busch and International Shoe fortunes; but the story that dominated headlines and riveted the attention of the community for much of the decade involved the 1931 interstate abduction of the city’s leading otolaryngologist by a group of mobsters and ex-convicts led by a prominent St. Louis socialite named Nellie Muench. Nellie, whose underworld nickname was "Goldie" due to her exceptional interest in lucre, was married to a local physician, was the daughter of a well-known Baptist minister, and was the sister of a judge on the Missouri Supreme Court. The saga of Nellie and her partners in crime involved a parade of colorful figures participating in multiple criminal trials; the drive-by machine-gunning of a key witness; a near-fatal attack on the chief prosecutor; a faked pregnancy and two illegal adoptions (one of which resulted in an infant’s death) in order to curry favor with her criminal jury; an unsuccessful attempt to retain custody of the surviving child in a hearing before Special Commissioner Rush Limbaugh, Sr.; and ultimately a mail fraud conviction for seeking to extort $250,000 from the bachelor with whom she had initiated an affair and had told that he was the father of her child.

Download the article from SSRN at the link.

This Year's List of Ig-Nobel Prize Winners

2011-09-30T12:47:00.000-04:00

Coverage here from the Chronicle of Higher Education. More here at the Improbable Research website. Nobel Prize winners hand out the Ig-Nobel prizes. Some are winners in both categories, like physicist Andre Geim (Nobel Prize winner in 2010, Ig-Nobel Prize winner in 2000). I wonder which one he treasures more.

Philosopher Kings and Melville's Captain Vere

2011-09-30T12:38:00.000-04:00

Rob Atkinson Jr., Florida State University College of Law, has published Averting the Captain Vere 'Veer': Billy Budd as Melville's Republican Response to Plato, as FSU College of Law Public Law Research Paper No. 539. Here is the abstract.

This article shows how Melville’s Billy Budd, rightly one of law and literature’s most widely studied canonical texts, answers Plato’s challenge in Book X of the Republic: Show how “poets” create better citizens, especially better rulers, or banish them from the commonwealth of reasoned law. Captain Vere is a flawed but instructive version of the Republic’s philosopher-king, even as his story is precisely the sort of “poetry” that Plato should willing allow, by his own republican principles, into the ideal polity. Not surprisingly, the novella shows how law’s agents must be wise, even as their law must be philosophical, if they are to do justice. Paradoxically, the novella also shows how “poetry” can save law’s agents, particularly the more Platonic, from Captain Vere’s “veer,” a dangerous turn from fully legal justice to false and fatal severity.

Captain Vere has a “tragic flaw” all too common among leaders otherwise completely conscientious and competent: When faced with a range of courses - all legal, moral, and practicable - Vere invariably charts the most personally painful. Part of his “no pain, no gain” course steers him into fastidious studies that exclude both “mere” fiction and “pure” theory, ironically banishing Plato himself along with his “poets.” But Vere’s own story, with its narrator’s frequent theoretical interruptions and occasional allusions to Plato, demonstrates that the reading of just such stories may deliver leaders like him from over-harsh treatment of themselves and their most vulnerable charges. The novella, then, not only reveals Captain Vere’s “veer”; it also shows a way to avert that ever dangerous, often fatal tack. If the studious captain had been prepared to study stories like his own, his readings might have made him a vastly better guardian of his symbolic flock, particularly of Billy Budd, his most innocent sheep; had “Starry” Vere been more a philosopher-king and less a surrogate father-god, he need never have made his excruciating mistake, sacrificing his most beloved foster son to save their microcosmic world.

Download the paper from SSRN at the link.

Free Speech and the Fight Against Terrorism

2011-09-28T18:56:00.001-04:00

Owen Fiss, Yale University Law School, has published The World We Live In, at 83 Temple Law Review 295-308 (Winter 2011).

This Essay focuses on a threat to our constitutional order — the curtailment of freedom of speech in the name of fighting terrorism. Specifically, my subject is the Supreme Court’s decision last June in Holder v. Humanitarian Law Project, which upheld the authority of Congress to criminalize political advocacy on behalf of foreign terrorist organizations. Like warrantless wiretapping, the risk of a criminal prosecution for political advocacy — for example, an utterance by an American citizen in an American forum that a foreign terrorist organization has a just cause — poses a threat to our democracy, but the danger is greater. The risk of warrantless wiretapping inhibits speech; the risk of a criminal prosecution stops it altogether.

Download the article from SSRN at the link.

The Nature of Law

2011-09-28T18:46:00.001-04:00

Frederick Schauer, University of Virginia School of Law, has published On Open Texture of Law as Virginia Public Law and Legal Theory Research Paper No. 2011-35. Here is the abstract.

This paper, prepared for the University of Frankfurt Symposium on Defeasibility in Epistemology, Ethics, law and Logic, addresses the claim of H.L.A. Hart and others that law is open-textured. It is in the nature of law, they say, that it necessarily possesses an open texture going beyond the open texture of the language in which legal rules are written. But when we examine the question of open texture in light of Hart’s claim that the open texture of law entails the necessary defeasibility of legal rules, we discover that Hart and his followers are mistaken. Both the alleged open texture of law qua law (as opposed to the open texture occasioned by the open texture of the language used by law) and the defeasibility of legal rules are contingent features of certain legal rules in certain legal regimes, but neither are necessary components of the nature of law or the nature of rules.

Download the paper from SSRN at the link.

Law and Narrative

2011-09-23T14:55:00.001-04:00

Lea B. Vaughn, University of Washington School of Law, is publishing Feeling at Home: Law, Cognitive Science, and Narrative in the McGeorge Law Review. Here is the abstract.

What is the “how and why” of law’s affinity for narrative? In order to explain why the use of stories is such an effective teaching and presentation strategy in the law, this paper will consider theories and accounts from cognitive as well as evolutionary psychology, neuroscience, and, briefly, cultural anthropology. This account seeks to address “how” narrative helps us learn and use the law as well as “why” we are so compelled to use stories in teaching and in practice.

Brain science, simplified here, suggests that the first task is to “grab” someone’s attention. Emotionally charged events are more likely to capture our attention and to be remembered. Because of their emotional content, stories and narrative (which will be used interchangeably here) seize the attention of listeners and readers, students and jurors. In turn, this emotional fixation focuses attention on context and meaning. Studies suggest that this context is the platform that allows later and successive integration of details. Thus, stories “work” because they focus attention and provide a context for learning the “details,” i.e., the law. Moreover, the same principles that apply to the success of using stories in the classroom also bear fruit in practice. Our culture, and perhaps our genetic make-up, compel us to use stories as a way to both comprehend and transmit the law.

Download the article from SSRN at the link.

Lord Cornbury's Strange Practice

2011-09-22T13:04:00.000-04:00

Wolfgang Nebodity, University of Vienna, has published Lord Cornbury and the Arcana Practice. Here is the abstract.

In 1702 Queen Anne, the second daughter born to James II and his first wife, Anne Hyde, appointed her cousin, Lord Cornbury, governor of the Province of New York. He turned out as one of colonial New York's unique and controversial figures. This was mainly due to the fact that he kept the “arcana imperii” of his queen. He claimed that “he represented a woman and ought in all respects to represent her as faithfully as he could.” Thus he acquired the rituals and rhetoric of queenship. His power depended on the role of the female monarch, both as a symbol of harmony and dynastic stability and as a potential focus for political factionalism, disunity and discontent.

Download the paper from SSRN at the link.

Call For Papers

2011-09-20T19:01:00.001-04:00

From Tucker Culbertson, Syracuse University College of Law

Call for Papers for a Special Issue of the Journal of Homosexuality (http://www.tandf.co.uk/journals/WJHM ): “Trans Sexualities”

The Journal of Homosexuality ( http://www.tandf.co.uk/journals/wjhm ) invites the submission of extended abstracts for a special issue expected to publish in Fall 2012.

In this volume, we seek to not only conceptually disentangle gender and sexual identities, but to reveal the myriad ways in which their intersections can be both illuminating and perplexing. To date, in academic scholarship on LGBTQ sexualities, “transgender” too often remains present in acronym only, with very real consequences for inclusion and exclusion both in terms of transgender and transsexual personhood as well as to moving studies of gender and sexual identities, and sexual practices (including sexual labor) forward. In this special issue, we seek proposals for papers that focus critically on sexual identities and practices among transgender and transsexual individuals and their partners to begin to fill the existing lacuna in scholarship and theorizing around transgender and transsexual sexualities. To this end, we seek papers that address (but are not limited to) the following issues and topics:

Trans identities complicating binary notions of “gay,” “lesbian,” and “bisexual” sexualities (e.g., the experiences of gay trans men and lesbian trans women, making meaning of the term and concept of “hetero/homo/bi/sexuality” in the context of trans identity, how trans sexualities contribute to the “queering” of sexualities in general)

“Doing” masculinity, femininity, and androgyny as a trans person in the context of sexual identity and how sexual identities of trans people and their partners are often (mis)“read” and (mis)understood

Fluidity (or not) of sexual identities and/or practices in the lives of those who are trans and/or their sexual partners

The role of language in shaping sexual identities and/or practices among trans people and/or their sexual partners

Trans persons’ engagement with sex work and sexualized labor ·

International representations, understandings, and depictions of trans sexualities

Fetishization and commodification of trans sexualities—including the phenomenon, impacts, and effects of trans (in/hyper)visibility in the media (e.g., trans sexual voyeurism)

Intersections between trans bodies and trans sexualities ·

Trans sex, sexualities, and partnerships (and the challenges of conducting ethical scholarship around these issues considering the history of exploitive representations of transgender and transsexual lives) ·

Inclusion and exclusion of trans people within sexual rights movements and potentials for coalition building across social movements focusing on sexualities

Sexual safety and wellbeing of trans persons (and consideration of safer sex practices, sexual marginalization, sexual harassment, sexual assault, access to healthcare)

“Counting” trans people (to ensure that trans people count)—demographic studies of trans sexualities

Reviews of institutions, services, and programs that provide services and programs that include (or don’t) focus on trans sexualities

Methods for studying trans sexual identities, sexual practices, and sexual partnerships (and, further, identity and standpoint of the “researcher” and “researched”—how identity matters, considerations of cissexual and cisgender privilege)

We currently seek 1,200-1,500 word extended abstracts for proposed papers that provide a title, brief summary of your central arguments and evidence used to support these arguments, methods to investigate the topic under study (if applicable), and how your proposed paper contributes to, challenges, and/or extends existing scholarship on trans sexualities. Please be clear about the current status of the proposed paper in terms of whether it is at an incipient or advanced stage and provide a brief statement on how you intend to complete the final paper by March 2012. We seek proposals for both theoretical and empirical papers.

International work and work by trans scholars is particularly encouraged.

All abstracts and papers will undergo blinded peer review by a Special Editorial Board of interdisciplinary trans and non-trans scholars conversant with ethical scholarship on trans issues. To facilitate blind review, please prepare a cover page with your name, contact information, and proposal title, but do not include your name or other identifying information on subsequent pages—do include your proposal title at the top of each page. Send inquiries and extended abstracts to the Guest Editor of this Special Issue, Carla A. Pfeffer, at cpfeffer@purdue.edu by November 1, 2011. Final manuscripts should be approximately 7,500 words (about 25 pages) and will be due in March 2012.

Guest Editor: Carla A. Pfeffer (Sociology), Department of Social Sciences, Purdue University - North Central

Special Editorial Board:

Walter O. Bockting (Psychology) Department of Family Medicine and Community Health, University of Minnesota Medical School

Nicola R. Brown (Psychology) Centre for Addiction and Mental Health, Toronto, Canada

Aaron H. Devor (Sociology) Department of Sociology, University of Victoria, Canada

Marcia Ochoa (Cultural and Social Anthropology) Feminist Studies, University of California - Santa Cruz

Tam Sanger (Sociology and Gender Studies) Childhood and Youth Research Institute, Anglia Ruskin University, United Kingdom

Julia Serano (Biology) Molecular and Cell Biology, University of California - Berkeley

Susan Stryker (United States History) Department of Gender and Women’s Studies, Arizona State University

Salvador Vidal-Ortiz (Sociology) Department of Sociology, American University

It's Always Something: Love and Litigation At the Opera House

2011-09-20T13:29:00.002-04:00

Sarah Lynnda Swan, Columbia University Law School, has published A New Tortious Interference with Contractual Relations: Gender and Erotic Triangles in Lumley v. Gye, in volume 35 of the Harvard Journal of Law and Gender (2012). Here is the abstract.

The tort of interference with contractual relations has many puzzling features that conflict with fundamental principles of contract and tort law. This Article considers how gender influenced the structure of the tort and gave rise to many of these anomalies. Lumley v. Gye, the English case that first established interference with contractual relations, arose from a specifically gendered dispute: two men fighting over a woman. This type of male—male—female configuration creates an erotic triangle, a common archetype in Western culture. The causes of action that served as the legal precedents for interference with contractual relations – enticement, seduction, and criminal conversation – are previous instances where the law regulated gendered triangular conflicts. Enticement prohibited a rival male from taking another man’s servant, seduction prohibited a rival male from taking another man’s daughter, and criminal conversation prohibited a rival male from taking another man’s wife.

In Lumley v. Gye, the court expanded these precedents and created a cause of action that allowed Lumley to bring an action against his male rival for essentially “taking” his contracted female employee. The gendered basis for the tort explains its most problematic aspects, including why it imposes obligations on non-contractual parties, ignores the role of the breaching promisor in causing the wrong, and treats her as the property of the original promisee. In order to remedy these problematic features, the tort should be restructured as one of mixed joint liability. Further, damages should be limited to those available in contract.

Download the article from SSRN at the link.

A New Law and Culture (and Other) Blog

2011-09-20T11:37:00.002-04:00

Pierre Schlag and Sarah Krakoff of the University of Colorado School of Law have started the blog brazenandtenured--law politics nature and culture. Among the posts: The Monty Python Example No. 1 and Kandinsky or Hart? Aesthetics No. 1. This blog, as Hercule Poirot would say about other matters, gives me furiously to think.

Bob Dylan, Jurisprude

2011-09-19T17:42:00.000-04:00

Michael L. Perlin, New York Law School, has published Tangled Up in Law: The Jurisprudence of Bob Dylan. Here is the abstract.

As a careful examination of Bob Dylan’s lyrics reveals a writer - a scholar - with a well-developed jurisprudence, ranging over a broad array of topics that relate to civil and criminal law, public and private law. His lyrics reflect the work of a thinker who takes “the law” seriously in multiple iterations - the role of lawyers, the role of judges, the disparities between the ways the law treats the rich and the poor, the inequality of the criminal and civil justice systems, the corruption of government, the police, and the judiciary, and more. In this paper, I seek to create a topography of Dylan-as-jurisprudential scholar, and will seek to do this by looking at selected Dylan songs in these discrete areas of law (and law-and-society):
• Civil rights
• Inequality of the criminal justice system
• Institutions
• Governmental/judicial corruption
• Equality and emancipation (political and economic)
• Poverty, the environment, and Inequality of the civil justice system, and
• The role of lawyers and the legal process.

Download the paper from SSRN at the link.

The Institute for the Public Life of Arts and Ideas Hosts a Conference On the Art and Politics of Irony

2011-09-19T15:10:00.000-04:00

The Art and Politics of Irony | L’art et la politique de l’ironie

12-14 April 2012 ~ Montréal, QC

An interdisciplinary conference hosted by the Institute for the Public Life of Arts and Ideas, McGill University, in collaboration with Improvisation, Community and Social Practice (SSHRC-MCRI) and the Département d’études anglaises, Université de Montréal

Call for papers (http://www.mcgill.ca/iplai/conferences/)

“The ironist does not have the new within his power . . . he destroys the given actuality by the given actuality itself.” Søren Kierkegaard

Irony makes the world new by putting the world that exists in question. Its strength lies in its destabilizing power—it is the politics of art, the art of politics, and the language of dissent. By enabling critical representations of the world as it is known, but from within and against the familiarity of our own expectations, irony gives art and discourse special kinds of access to the public sphere, especially by mining beneath the given, the actual, and the known.

In politics, philosophy, art and literature, across post-modernism, post-colonialism, and globalization, the question of irony is of expanding relevance to a range of fields of cultural formation and inquiry. Yet it remains insufficiently noticed, understood, or theorized; ironically powerful and silent at once. What is the meaning of irony? What does it accomplish and exactly how and with what effects? Is irony impoverished or indispensable, disenchanted or enchanting, world-breaking or world-making?

Conference organizers invite proposals for papers addressing the public and public-making function of irony across time and through a range of contexts and media. Disciplines may include but are not limited to:

Architecture and Design

Art History

Classics

Film

Fine Arts

Gender and Sexuality

History

Law

Literature

Media and Communications

Musicology and Music Performance

Philosophy

Politics

Theatre and Performance

Proposals for complete panels as well as for individual papers in English or French are welcome. Researchers are invited to submit paper abstracts of 250 words and brief (2 page) cvs to: irony@mcgill.ca. Deadline for submissions: 30 September 2011

Princeton University, Program in Law and Public Affairs/Fellowships and Positions Available

2011-09-19T13:42:00.000-04:00

From Susan Sage Heinzelman, University of Texas, Austin:

Princeton University’s Program in Law and Public Affairs (LAPA) invites
outstanding faculty, independent scholars, lawyers, and judges to apply
for appointments as resident Fellows for the academic year 2012-2013. We
anticipate naming up to five Fellows who are engaged in substantial
research on topics broadly related to law and public affairs or law and
normative inquiry, including one Microsoft/LAPA Fellow specializing in
intellectual property or the legal regulation of the economy. Successful
candidates will devote an academic year in residence at Princeton to
research, discussion, and scholarly collaboration. Applicants must have
a doctorate, JD or an equivalent professional postgraduate degree.
Further information can be found at

*http://lapa.princeton.edu/fellowships.php*.

**

*APPLICATION DEADLINE IS 5:00 PM (EST) MONDAY, NOVEMBER 7, 2011.*

Princeton University is an equal opportunity employer and complies with
applicable EEO and affirmative action regulations.

Law and Society Fellowship Available at University of Wisconsin

2011-09-19T10:35:00.000-04:00

From Susan Sage Heinzelman at the University of Texas, Austin:

Law and Society Post-Doctoral Fellowship at Wisconsin (one year term)

One-year fellowship for early-career scholars who work in the "law and society" tradition and who will be competing for university-level teaching jobs in the U.S. market.

For 2012-13 academic year, apply by 1/9/12.

Complete information can be found at: http://law.wisc.edu/ils/lawandsocietyfellowship.html