December 15, 2017

Ablavsky on "With the Indian Tribes": Race, Citizenship, and Original Constitutional Meanings @StanfordLaw

Gregory Ablavsky, Stanford Law School, is publishing 'With the Indian Tribes': Race, Citizenship, and Original Constitutional Meanings in the Stanford Law Review. Here is the abstract.
Under black-letter law declared in Morton v. Mancari, federal classifications of individuals as “Indian” based on membership in a federally recognized tribe rely on a political, not a racial, distinction, and so are generally subject only to rational-basis review. But the Supreme Court recently questioned this long-standing dichotomy, resulting in renewed challenges arguing that, because tribal membership usually requires Native ancestry, such classifications are race-based. The term “Indian” appears twice in the original U.S. Constitution. A large and important scholarly literature has developed arguing that this specific constitutional inclusion of “Indian tribes” mitigates equal protection concerns. Missing from these discussions, however, is much consideration of these terms’ meaning at the time of the Constitution’s adoption. Most scholars have concluded that there is a lack of evidence on this point—a “gap” in the historical record. This Essay uses legal, intellectual, and cultural history to close that “gap” and reconstruct the historical meanings of “tribe” and “Indian” in the late eighteenth century. Rather than a single “original meaning,” it finds duality: Anglo-Americans of the time also alternated between referring to Native communities as “nations,” which connoted equality, and “tribes,” which conveyed Natives’ purported uncivilized status. They also defined “Indians” both in racial terms, as non-white, and in jurisdictional terms, as non-citizens. These contrasting meanings, I argue, have potentially important doctrinal implications for current debates in Indian law, depending on the interpretive approach applied. Although the term “tribe” had at times derogatory connotations, its use in the Constitution bolsters arguments emphasizing the significance of Native descent and arguably weakens current attacks on Native sovereignty based on invidious legal distinctions among Native communities. Similarly, there is convincing evidence to read “Indian” in the Constitution in political terms, justifying Morton’s dichotomy. But interpreting “Indian” as a “racial” category also provides little solace to Indian law’s critics, since it fundamentally undermines their insistence on a colorblind Constitution.
Download the article from SSRN at the link.

Treanor on the Genius of Hamilton and the Birth of the Modern Theory of the Judiciary @GeorgetownLaw

William Michael Treanor, Georgetown University Law Center, is publishing The Genius of Hamilton and the Birth of the Modern Theory of the Judiciary in the Cambridge Companion to the Federalist (Jack Rakove & Colleen Sheehan eds., Cambridge University Press Forthcoming). Here is the abstract.
In late May 1788, with the essays of the Federalist on the Congress (Article I) and the Executive (Article II) completed, Alexander Hamilton turned, finally, to Article III and the judiciary. The Federalist’s essays 78 to 83 – the essays on the judiciary - had limited effect on ratification. No newspaper outside New York reprinted them, and they appeared very late in the ratification process – after eight states had ratified. But, if these essays had little immediate impact – essentially limited to the ratification debates in New York and, perhaps, Virginia – they were a stunning intellectual achievement. Modern scholars have made Madison’s political and constitutional theory the great story of the Federalist, and Federalist 10, in particular, has long been “in the center of constitutional debate.” But careful study of essays 78 through 83 reveals that Hamilton had an innovative and consequential vision of the law and the judicial role that deserves at least as much attention as Madison’s contributions.
Download the essay from SSRN at the link.

December 14, 2017

Lincoln on The Silmarillion and the Lord of the Rings as a Lens into Constitutional Interpretation: A Possible Synthesis of Natural and Positive Law

Charles Edward Andrew Lincoln, IV, Boston University (Students), University of Amsterdam, has published The Silmarillion and the Lord of the Rings as a Lens into Constitutional Interpretation: A Possible Synthesis of Natural and Positive Law. Here is the abstract.
The nature of identity in the U.S. lies in the Constitution. Perhaps this is due to “veneration” of the document. It has also been argued that the Declaration of Independence holds a seminal role in the American identity. The rift seems to occur with the concept of a “living constitution,” whereby the concept of an ever-evolving jurisprudence allows for an evolving interpretation of the Constitution as society changes. This rift is demonstrated the world of J.R.R. Tolkien. In The Lord of the Rings and Silmarillion, the various being of Middle Earth have distinct natures. The elves seek beautiful things, the orcs are former elves that have been corrupted, the dwarves are logical, etc. However, their natures are subject to change. This is exemplified when Melkor one of the original beings, created by Eru Ilúvatar (the original being), turns dark when the original singing of the Ainur becomes dissonant with Melkor’s choice to sing differently. Natural law has been compared to originalism. Again, it may be fair to compare natural law to the order set by Eru Ilúvatar. If this premise is accepted that natural law is originalism, the order set by Eru Ilúvatar, then the dissonance caused by Melkor can arguably be the concept of a living constitution. This deviation from Eru Ilúvatar’s original plan does not have to necessarily be negative. There are others who fall out of line with the original conception of Eru Ilúvatar, such as men who are endowed with the gift of a short life and thus are industrious and creative. Arguably, it could also be extended to the world of Hobbits who are evidently related to men -- but their origin story is never clearly delineated in any of Tolkien’s writings. Thus, this shows that the story of the Silmarillion primarily and in part The Lord of the Rings can exemplify rifts of originalism and living constitution doctrines. These perhaps are not just relevant for US Constitutional interpretation purposes.
Download the article from SSRN at the link.

December 12, 2017

Newly Published: Anne C. Dailey: Law and the Unconscious: A Psychoanalytic Perspective @yalepress @uconnlaw

Newly published: Anne C. Dailey, Professor of Law, University of Connecticut, has published Law and the Unconscious: A Psychoanalytic Perspective (Yale University Press, 2017). Here from the publisher's website is a description of the book's contents.
How can psychoanalysis help us understand irrational actions and bad choices? Our legal system relies on the idea that people act reasonably and of their own free will, yet some still commit crimes with a high likelihood of being caught, sign obviously one-sided contracts, or violate their own moral codes—behavior many would call fundamentally irrational. Anne Dailey shows that a psychoanalytic perspective grounded in solid clinical work can bring the law into line with the reality of psychological experience. Approaching contemporary legal debates with fresh insights, this original and powerful critique sheds new light on issues of overriding social importance, including false confessions, sexual consent, threats of violence, and criminal responsibility. By challenging basic legal assumptions with a nuanced and humane perspective, Dailey shows how psychoanalysis can further our legal system’s highest ideals of individual fairness and systemic justice.

 

Annual Comparative Law Works-in-Progress Workshop, 23-24 February 2018, Princeton University: Extended Deadline: Announcement and CFP

From the mailbox:



Annual Comparative Law Work-in-Progress Workshop
23-24 February 2018
Princeton University

EXTENDED DEADLINE: Announcement and Call for Papers

Co-Organized and Co-Hosted by Kim Lane Scheppele (Princeton University), Jacqueline Ross (University of Illinois College of Law), and Jacques DeLisle (University of Pennsylvania Law School)

Co-sponsored by Princeton University, the University of Illinois College of Law, the University of Pennsylvania Law School, and the American Society of Comparative Law


We invite all interested comparative law scholars to consider submitting a paper to the next annual Comparative Law Work-in-Progress Workshop, which will be held February 23-24, 2018 at Princeton University. 

            Interested authors should submit papers to Kim Lane Scheppele at kimlane@princeton.edu.  We have extended the deadline and ask for papers to submitted by January 8, 2018.  We will inform authors of our decision by January 20.   Participants whose papers have been accepted should plan to arrive in Princeton by Thursday night on February 22 and to leave on Saturday afternoon or Sunday morning.   

The annual workshop continues to be an important forum in which comparative law work in progress can be explored among colleagues in a serious and thorough manner that will be truly helpful to the respective authors.   "Work in progress" means scholarship that has reached a stage at which it is substantial enough to merit serious discussion and critique but that has not yet appeared in print (and can still be revised after the workshop, if it has already been accepted for publication.)   It includes law review articles, book chapters or outlines, substantial book reviews, and other appropriate genres.

We ask for only one contribution per author and also ask authors to limit their papers to 50 pages in length, or, if the paper (or book chapter) is longer, to indicate which 50 pages they would like to have read and discussed. 

            Our objective is not only to provide an opportunity for the discussion of scholarly work but also to create the opportunity for comparative lawyers to get together for two days devoted to nothing but talking shop, both in the sessions and outside. We hope that this will create synergy that fosters more dialogue, cooperation, and an increased sense of coherence for the discipline.

The participants in the workshop will consist of the respective authors, commentators, and faculty members of the host institutions.  The overall group will be kept small enough to sit around a large table and to allow serious discussion.  The papers will not be presented at the workshop. They will be distributed well in advance and every participant must have read them before attending the meeting.  Each paper will be introduced and discussed first by two commentators before opening the discussion to the other workshop participants.  Each of the authors selected for the workshop is expected to have read and to be prepared to discuss each of the papers selected.  The author of each paper will be given an opportunity to respond and ask questions of his or her own.  There are no plans to publish the papers. Instead, it is up to the authors to seek publication if, and wherever, they wish.  The goal of the workshop is to improve the work before publication. 

            The Workshop will be funded by the host school and by the American Society of Comparative Law. Authors of papers and commentators will be reimbursed for their travel expenses and accommodation up to $600, by either by the American Society of Comparative Law or Princeton University, in accordance with the ASCL reimbursement policy (as posted on its webpage.)  We ask that authors inquire into funding opportunities at their home institutions before applying for reimbursement by the ASCL or by the Princeton University.

In this cycle of our annual workshop, we are excited to welcome our newest co-organizer, Professor Jacques DeLisle, Stephen A. Cozen Professor of Law and Professor of Political Science and Director of the Center for East Asian Studies at the University of Pennsylvania Law School and we bid a fond farewell to Professor Maximo Langer of the UCLA School of Law, with whom we have greatly enjoyed co-hosting many meetings of this annual workshop series.   


December 11, 2017

Call For Applications: Jerome Hall Postdoctoral Fellowship, Center for Law, Society, & Culture, and Indiana University, School of Law

From the mailbox:
Jerome Hall Postdoctoral Fellowship
The Center for Law, Society & Culture and the Indiana University Maurer School of Law invite applications from scholars of law, the humanities, or social sciences working in the field of sociolegal studies for the Jerome Hall Postdoctoral Fellowship.
The fellow will devote substantial time to research and writing in furtherance of a major scholarly project and will participate in the activities of the Center, which include an annual symposium, a colloquia series, and regular workshops and lectures. The fellowship provides a salary plus a research allowance, health insurance, other benefits, and workspace at the School of Law. If both sides are amenable, the option of teaching a research seminar is also possible, with a commensurate adjustment to the salary. The term of the appointment will be 24 months, beginning August 1, 2018.
In evaluating applications, the Center will focus on: 1) The originality and significance of the candidate’s proposed research project within the field of sociolegal studies; 2) the candidate’s scholarly promise, achievements, and ability to complete the project; and 3) the potential contribution of the candidate to the intellectual life of the Center, the School of Law, and Indiana University.
Scholars of law, the humanities, or social sciences working in the field of sociolegal studies. Pre-tenure scholars, recently awarded PhDs, and those with equivalent professional degrees are encouraged to apply. Advanced graduate students may also apply, but evidence of completion of the doctoral degree or its equivalent is required before beginning the fellowship.
Questions regarding the position or application process can be directed to Professor Victor Quintanilla, IU Maurer School of Law 211 S. Indiana Ave., Bloomington, IN 47405 or vdq@indiana.edu.
https://indiana.peopleadmin.com/postings/4947

Stajnphiler on Plagiarism and Power Relations in Legal Academia and Legal Education @IISJOnati

Tilen Stajnphiler, University of Ljubljana, is publishing On Plagiarism and Power Relations in Legal Academia and Legal Education in volume 7, no. 8, of Oñati Socio-Legal Series (2017). Here is the abstract.
English Abstract: The article challenges the misconception that legal academia is a harmonious community without internal discrepancies, characterised by common interests, a coherent set of values and standards of behaviour that are unilaterally transposed into the legal profession through the process of legal education. The paper focuses on a case study of a public dispute between two law professors initiated by an article published in one of the main national law magazines wherein one accused the other of plagiarism. Even though the dispute did not come to an unequivocal conclusion, it deserves a closer examination as it clearly exposed two important issues. Firstly, it revealed certain unresolved issues concerning legal writing and legal ethics that are essential elements of the legal profession, as they have a profound impact on legal education and legal practice, and, secondly, it showed that these divergences are at least to some extent related to the latent network of power relations and struggles that dominate the legal (academic) field.
Spanish Abstract: Este artículo cuestiona la creencia de que el mundo jurídico-académico es una comunidad armoniosa sin discrepancias internas, caracterizada por intereses comunes, valores coherentes y parámetros de comportamiento que se transponen de forma unilateral al ejercicio de la profesión jurídica a través de la educación en Derecho. El artículo se centra en el estudio de una disputa entre dos profesores de Derecho, en la cual uno acusaba al otro de plagio. A pesar de que la disputa no se resolvió de forma clara, merece un análisis más cuidadoso, ya que puso de manifiesto dos temas importantes: en primer lugar, algunos conflictos sin resolver sobre la escritura y la ética del derecho que son elementos esenciales de la profesión jurídica, pues tienen un profundo impacto sobre la educación y la práctica del Derecho; y, en segundo lugar, que estos desacuerdos están relacionados con las redes latentes de poder que dominan el campo jurídico-académico.

Download the article from SSRN at the link. 

Annual Meeting of the Alabama Political Science Association CFP

From the mailbox:
Annual Meeting of the Alabama Political Science Association
Call for Papers, Panels, and Moderators March 16-17, 2018 – University of South Alabama Campus
The Alabama Political Science Association (ALaPSA) is looking for professors, graduate, and undergraduate students in all areas of political science and related fields to contribute to our annual statewide conference in beautiful Mobile in March 2018. Participants representing other disciplines related to politics, and participants from outside Alabama, are welcome!
HOW YOU CAN PARTICIPATE:
1. Propose a research paper for delivery at an AlaPSA panel (professors and graduate students): Submit a brief proposal at the hyperlink listed below. Papers on all political topics are welcome, and, if accepted, will be placed on topic-appropriate panels. Please indicate if you are a graduate student.
2. Propose a paper for delivery at an undergraduate student panel: Submit a brief proposal at the hyperlink listed below. Papers will be placed on special undergraduates-only panels with a faculty or graduate student moderator. Papers involving original research are preferred, but insightful, well-written and substantial literature reviews or essays will be considered.
3. Propose “pre-fabricated” complete faculty, graduate, or undergraduate, student panels: If you and some colleagues would like to pre-arrange an entire panel (i.e. you supply the topic, moderator, and research presenters), we’ll supply the room and an audience. Submit your general panel theme and brief proposals or summaries of the component papers (as well as complete contact information for all proposed participants) at the hyperlink listed below.
4. Propose “roundtables” offering academic expertise on scholarly and practical problems and issues (faculty): We welcome the opportunity for groups of more senior experts on particular topics to share their collective wisdom in a less structured, more speculative, and more wide-ranging way. If you would like to suggest an idea for such a scholarly roundtable, and/or offer to participate in one, please submit your suggestions at the hyperlink listed below. 5. Offering service as a panel moderator and/or roundtable participant (faculty and graduate students): As with all academic conferences, we need people to facilitate the panels and offer comments and suggestions on the papers presented. If you would enjoy doing this, submit a request at the hyperlink listed below.
HOW TO SUBMIT YOUR PROPOSAL
The following link will take you to the conference registration website:
https://conferencebit.com/alabama-political-science-association-conference-2018
If this is your first time to the website, you will need to register. Once you have registered, you will be able to submit your proposal. Please add the appropriate tags to your proposal. Tags include the topic area as well as any special information about the proposal, i.e., whether it is a graduate or undergraduate panel, or whether you are proposing a roundtable or to be a moderator.
There will be a place to upload your paper. You will not need to upload the paper until closer to the actual time of the conference. Once a proposal is submitted, you will receive notification of whether your proposal was accepted.
As we approach the submission deadline, accepted proposals will be organized into panels and you will receive notification of your panel assignment. Those submitting paper proposals will receive information on how to pay for the conference registration in their acceptance emails. Additional information on paying for conference registration will be sent to others in a later email.
If you have any questions please contact: Jaclyn Bunch, ALaPSA Program Chair Department of Political Science and Criminal Justice University of South Alabama Mobile, AL 36688
E-mail: jbunch@southalabama.edu Tel: (251) 460-7852 Fax: (251) 460-6567 APPLICATION DEADLINE: January 5, 2018

December 10, 2017

ICYMI: Pritikin on Whether Law and Literature Can Be Practical @concordlaw

ICYMI: Martin H. Pritikin, Concord Law School, has published Can Law and Literature Be Practical? The Crucible and the Federal Rules of Evidence at 115 West Virginia Law Review 687 (2012).
Counter-intuitively, one of the best ways to learn the practice-oriented topic of evidence may be by studying a work of fiction — specifically, Arthur Miller’s The Crucible, which dramatizes the 17th century Salem witch trials. The play puts the reader in the position of legal advocate, and invites strategic analysis of evidentiary issues. A close analysis of the dialogue presents an opportunity to explore both the doctrinal nuances of and policy considerations underlying the most important topics covered by the Federal Rules of Evidence, including relevance, character evidence and impeachment, opinion testimony, hearsay, and the mode and order of interrogation.
Download the article from SSRN at the link.

December 7, 2017

Niezen on Street Justice: Graffiti and Claims-Making in Urban Public Space @mcgillu @LAWMcGill

Ronald Niezen, McGill University Faculty of Law, has published Street Justice: Graffiti and Claims-Making in Urban Public Space. Here is the abstract.
It is getting increasingly difficult to avoid the notion that justice claims are not limited to the formal venues of law or even the public accountability processes of journalism, but are also expressed in everyday activities of public outreach. We can see this outreach in informal efforts toward mass communication, in graffiti and Internet communication (and connections between the two, as we will see) oriented toward passers by and browsers, consumers of information, the possible-to-convince sympathizers of the plights of others. This non-professional realm of justice claims tells us something about the extent to which justice is experienced and expressed outside the law, but at the same time through the influence of law. Human rights in particular can be seen as a source of inspiration and expression of new and emerging forms of rights-consciousness and the public expression of grievance. This consciousness, in turn, relates to the popular dynamics of human rights lobbying and a corresponding awareness of humanity as a reference point for what is fair, equitable, and honorable, grounded as they are in the “soft” processes of persuasion and mass influence.
Download the article from SSRN at the link.

Tomlins on A Poetics for Spatial Justice: Materialism and Legal Historiography, from Bachelard to Benjmin

Christopher Tomlins, University of California, Berkeley, Jurisprudence and Social Policy Program, is publishing A Poetics for Spatial Justice: Materialism and Legal Historiography, from Bachelard to Benjamin in the Oxford Handbook of Law and Humanities (forthcoming). Here is the abstract.
As the linguistic/cultural turn of the last forty years has begun to ebb, socio-legal and legal-humanist scholarship has seen an accelerating return to materiality. This paper asks what relationship may be forthcoming between the “new materialisms” and “vibrant matter” of recent years, and older materialisms – both historical and literary, both Marxist and non-Marxist – that held sway prior to post-structuralism? What impact might such a relationship have on the forms, notably “spatial justice,” that materiality is assuming in current legal studies? To attempt answers, the paper turns to two figures from more than half a century ago: Gaston Bachelard – once famous, now mostly forgotten; and Walter Benjamin – once largely forgotten, now famous. A prolific and much-admired writer between 1930 and 1960, Bachelard pursued two trajectories of inquiry: a dialectical and materialist and historical (but non-Marxist) philosophy of science; and a poetics of the material imagination based on inquiry into the literary reception and representation of the prime elements – earth, water, fire, and air. Between the late 1920s and 1940, meanwhile, Benjamin developed an idiosyncratic but potent form of historical materialism dedicated to “arousing [the world] from its dream of itself.” The paper argues that by mobilizing Bachelard and Benjamin for scholarship at the intersection of law and the humanities, old and new materialisms can be brought into a satisfying conjunction that simultaneously offers a poetics for spatial justice and lays a foundation for a materialist legal historiography for the twenty-first century.
Download the essay from SSRN at the link.

December 6, 2017

Kjaer on Claim-Making and Parallel Universes: Legal Pluralism From Church and Empire to Statehood and the European Union @Poul_Kjaer

Poul F. Kjaer, Copenhagen Business School, has published Claim-Making and Parallel Universes: Legal Pluralism from Church and Empire to Statehood and the European Union. Here is the abstract.
When Neil MacCormick, in the wake of the launch of the Maastricht Treaty on European Union, went “beyond the Sovereign State” in 1993, he fundamentally challenged the heretofore dominant paradigm of legal ordering in the European context which considered law to be singular, unified and confined within sovereign nation states. The original insight of MacCormick might, however, be pushed even further, as a historical re-construction reveals that legal pluralism is not only a trademark of recent historical times, marked by the European integration process, but has also been at the very core of legal evolution in Europe throughout its modern history. The introduction of modern law in Europe can be traced back to the eleventh and twelfth century Investiture Conflict between the Church and the Emperor, a conflict which solidified the existence of two parallel universes of law, one Church-based and one empire-based, both of which rested, in principle, upon mutually exclusive claims to superiority, but which nonetheless became institutionally stabilized in a manner which allowed for mutual co-existence between them. The existence of such parallel universes of law has throughout, also in the “Westphalian world”, been a central characteristic of European law. It is suggested that the current constellation between the EU and its Member States should be viewed in this light.
Download the article from SSRN at the link.

Fitzgibbon on the Promotion of Personhood as a Principal Good of Law

Scott Thomas Fitzgibbon, Boston College Law School, has published The Promotion of Personhood is a Principal Good of Law. Here is the abstract.
A great good promoted by a well constructed legal system is the protection and promotion of character. Many other purposes prove to be justifiable, if at all, based on their instrumentality to this good. When guided by this thesis, jurisprudence brings the discussion of law – what law is and what law ought to be – into constant conversation with anthropology: the perennial inquiry which our species conducts into the nature of the person.
Download the article from SSRN at the link.

December 5, 2017

David Armitage's New Book, Civil Wars: A History in Ideas @DavidRArmitage @maksdelmar

ICYMI: David Armitage, Department of History, Harvard University, has published Civil Wars: A History in Ideas (Yale University Press, 2017). Here from the publisher's website is a description of the book's contents.
We think we know civil war when we see it. Yet ideas of what it is, and isn't, have a long and contested history. Defining the term is acutely political, for ideas about what makes a war "civil" often depend on whether one is ruler or rebel, victor or vanquished, sufferer or outsider; it can also shape a conflict’s outcome, determining whether external powers are involved or stand aside. From the American Revolution to the Iraq war, pivotal decisions have hung on such shifts of perspective. The West’s age of civil war may be over, but elsewhere it has exploded – from the Balkans to Rwanda, Burundi, Somalia, Sri Lanka and, most recently, Syria. And the language of civil war has burgeoned as democratic politics has become more violently fought. This book's unique perspective on the roots, dynamics and shaping force of civil war will be essential to our ongoing struggles with this seemingly interminable problem.


 Civil Wars: A History in Ideas

Kendall on Magna Carta: An Old Curiosity, a Mere Social Fact, or a Modern Constitutive and Substantive Part of American Law? @JMLSChicago

Walter J. Kendall, John Marshall Law School, has published Magna Carta - An Old Curiosity, A Mere Social Fact, or a Modern Constitutive and Substantive Part of American Law? Here is the abstract.
Magna Carta an argument: both the beginning of and continuing vital part of Anglo-American law.
Download the article from SSRN at the link.

Cuéllar on Three Pivotal Transitions in American Law and Society Since 1886

Mariano-Florentino Cuéllar, Stanford Law School; Freeman Spogli Institute for International Studies, is publishing Adaptation Nation: Three Pivotal Transitions in American Law & Society Since 1886 in volume 70 of the Oklahoma Law Review. Here is the abstract.
Drawing on perspectives from administrative law as well as the study of law and development, this article analyzes three important transitions in American law and society since the Chicago Haymarket Square Riot of 1886. First, between the Haymarket Square Riot and 1950, the United States made great strides in the use and capacity of its institutions. At the outset, Americans lived in what could be reasonably described as a developing country constrained by violent labor conflicts, fragile institutions, and economic uncertainty. By the end of this period the United States was a preeminent global power making routine use of courts and agencies to resolve societal disputes. Second, in the latter half of the twentieth century and the early twenty-first century, Americans saw their country experience major demographic changes arising from the United States' distinctive approach to immigration. To implement its distinctive approach to mass immigration following the 1965 Immigration and Nationality Act amendments, the United States relied on elaborate mechanism for administrative adjudication and enforcement on a massive scale, as well as a more decentralized mechanism of regionally-based integration that could further both social cohesion and geopolitical aims. And third, the United States now faces emerging governance and regulatory challenges as technological developments involving networked computers and so-called “artificial intelligence” increasingly affect society and the nature of work. Once associated with the public contracting infrastructure used to support defense-related research and development, this transition is now catalyzing interest in regulatory and liability-related frameworks to govern the division of responsibility between human decision-makers and machine intelligence. I reflect on some of the similarities and differences associated with these transitions. I place them in the context of related legal developments, and assess what they reveal about the United States’ historical legacies and arrangements for pluralist governance. Ultimately, an understanding of these transitions provides not only indispensable context for the United States’ early twenty-first century institutional dilemmas, but also an appreciation of how a pivotal geopolitical power adapted to forge –– however imperfectly –– legal arrangements incorporating norms of non-arbitrariness in different settings where law affects development.
Download the article from SSRN at the link.

David on Love, Law, and the Judeo-Christian Separation-Individuation

Joseph E. David, Sapir Academic College School of Law, has published Love, Law and the Judeo-Christian Separation-Individuation. Here is the abstract.
Borrowed from a psychological theory, the principle of ‘separation-individuation’ refers to a developmental phase in which a subject develops sense of differentiation from her past or present origins and sense of autonomous selfhood and independency. The article suggests viewing the typology of anomist and legalist religions not as a consistent phenomenology but rather in relation to the above principle and the need to differentiate and create a religious self-identification.
Download the article from SSRN at the link.

December 4, 2017

Robinson on More Reasons Why Jurisprudence Is Not Legal Philosophy @otago

Michael Spencer Robertson, Faculty of Law, University of Otago, has published More Reasons Why Jurisprudence is Not Legal Philosophy at 30 Ratio Juris 403 (2017). Here is the abstract.
It is generally assumed, without argument, that legal theory, legal philosophy, philosophy of law, and jurisprudence all mean the same thing. This paper rejects that assumption, and in particular the assumption that jurisprudence is the same thing as legal philosophy. This assumption has recently been challenged by Roger Cotterrell in his article “Why Jurisprudence Is Not Legal Philosophy,” and I seek to build on his arguments by adding insights found in the work of Stanley Fish.
The full text is not available from SSRN. Download from Ratio Juris here.

December 3, 2017

Professor Marianne Constable To Give Lecture on Law, Literature, and Repetition at the University of Wollongong, December 7, 2017

Professor Marianne Constable, University of California, Berkeley, is giving a seminar on Subversive Legacies: Law, Literature, and Repetition, on December 7, at the University of Woollongong. More here.

December 1, 2017

Ortuoste on Literature, Society, and Law: A Three-Sided Mirror: The Basque Case

Lorena Ortuoste, Independent, is publishing Literature, Society and Law: A Three-Sided Mirror. The Basque Case. How Contemporary Literature Reflects Identity, Conflict and Memory in the 'Spanish' Basque Country: A Tridimensional Mirror in volume 7 of Oñati Socio-Legal Series (2017). Here is the abstract (in English and Spanish).
English Abstract: The aim in this thesis is to show how the Basque-culture identity struggles are reflected within the Basque literature and how their actions, behaviour, traditions, culture, memory, language, etcetera, define them as a community or minority. In order to show the reflection of the law in five chosen novels written in Basque, firstly I will try to explain the link between law and literature, and afterwards, a double analytical construction will take place: on the first hand, a descriptive and historical explanation to provide the audience with the meaning of the three basic concepts which constitute the Basque culture -identity, conflict and memory-, and with a socio-historical context; on the second hand, this analysis will be based on the content analysis of the five novels that have been chosen, and contextualized or in relation to the period that goes from the Civil War (1936-1939) to the post-war and nowadays, with special insistences in the decade of the 1980s and 1990s.

Spanish Abstract: El objetivo de esta tesis es mostrar cómo los conflictos identitarios de la cultura vasca se reflejan en la literatura, y cómo sus acciones, comportamiento, tradiciones, cultura, memoria, lengua, etc., lo definen como comunidad o minoría. Para mostrar la manera en que se refleja lo jurídico en cinco novelas seleccionadas escritas en lengua vasca, primero intentaré explicar la relación entre derecho y literatura, y después, llevaré a cabo una doble construcción analítica: de un lado, una explicación descriptiva e histórica, para proporcionar tanto un significado de los tres conceptos básicos que constituyen la cultura vasca -identidad, conflicto y memoria- como un contexto sociohistórico; y, por otro lado, este análisis se basa en el análisis de contenido de las cinco novelas seleccionadas y contextualizadas en, o en relación con el período entre la Guerra civil (1936-1939) y posguerra, y la actualidad, con especial insistencia en la década de los 80 y los 90.
Download the article from SSRN at the link.

Henderson on Daredevil: Legal (and Moral?) Vigilante @UofOklahomaLaw

Stephen E. Henderson, Unviversity of Oklahoma College of Law, is publishing Daredevil: Legal (and Moral?) Vigilante in volume 15 of the Ohio State Journal of Criminal Law (2017). Here is the abstract.
In 1964, the comic world was introduced to its first physically disabled practicing attorney: Matt Murdock. Initially a proud graduate of “State College” and later more impressively pedigreed as a graduate of either Columbia or Harvard Law, Murdock supplemented his day job as attorney with a side of vigilante justice as Daredevil. In 2003, Murdock became the only attorney superhero to appear as the title character in a movie. A truly awful movie, yes, but a movie all the same. And then in 2015, thanks to the talents of Drew Goddard, Murdock became the star of a terrific television series. But while it makes for good comics and television, does it make for good law? Good policy? Is there such a thing as moral vigilantism, and, if so, is Matt Murdock a moral vigilante? What of his foil, the Punisher, or the police officer who comes around to assisting Daredevil’s endeavors? I propose preliminary answers to these questions, including considering vigilantism as theorized by Paul and Sarah Robinson, Les Johnston, and Travis Dumsday. Their metrics are helpful and illuminating, but not, I think, a fully satisfying articulation of what constitutes moral vigilantism. And if we cannot adequately discern moral vigilantism in fictional characters, we will fare no better in the real world. There remains more good work to be done—and more good comics to be written.
Download the article from SSRN at the link.

November 30, 2017

American Bar Association Invites Entries For the 61st Annual Silver Gavel Awards for Media and the Arts @ABAesq

The American Bar Association invites entries for the 2017 Silver Gavel Awards for Media and the Arts. Below is information about the process from the ABA.


The nine eligible categories include: books, magazines, newspapers, commentary, drama and literature, documentaries, television, radio, or multimedia. 
All entries must have been originally published, produced, or presented in the 2017 calendar year.

Distinguished past awardees include:
- Sidney Lumet’s jury room drama Twelve Angry Men- PBS Fred Friendly series “The Constitution: That Delicate Balance”
- Jonathan Harr's A Civil Action (Random House)
Serial: Season OneMaking a Murderer- Matthew Desmond's Evicted: Poverty and Profit in the American City (Crown)


The entry deadline is January 8, 2018.

Here is a link to the guidelines and the entry form.

November 28, 2017

Shucha on Wisconsin's Early Sex Trade @shucha @WisconsinLaw @WisBlawg

Bonnie J. Shucha, University of Wisconsin Law School, has published Badger State Infamy: Wisconsin's Early Sex Trade at Wisconsin Lawyer 22 (October 2017). Here is the abstract.
This article describes the early sex trade in northern Wisconsin. Alarmed by numerous newspaper reports of sex trafficking, concerned citizens pressed the governor, state legislators, and law enforcement officials to rein in the booming sex trade. Results were mixed, but the efforts in Wisconsin were only the first of many to protect vulnerable adults and children from human trafficking, attempts that continue to the present day.
Download the article from SSRN at the link.

Petrovic on International Legal Protection for Culture at Risk in War @MonashUni

Jadranka Petrovic, Monash University, is publishing International Legal Protection for Culture at Risk in War in volume 18 of International Humanitarian Law Magazine (2016). Here is the abstract.
Cultural objects have been innocent victims of warfare from time immemorial. While some destruction has been incidental, frequently objects which are today considered 'cultural property' have been targeted willfully. These include immovable structures (eg, buildings and bridges) and movable objects (eg, artworks, books) which have architectural, historical, artistic, archaeological or scientific interest. The deliberate destruction of the world's largest Buddha statutes in Afghanistan, the looting of Iraq's national museum and the ongoing cultural onslaught on Aleppo, Palmyra and other cultural property sites in Syria, are the recent grim reminders that cultural wrongs ate not buried in the past. In fact, since the 1990s, with the changing nature of armed conflict and the escalation of terrorism and other non-conventional methods of warfare, the mistreatment of cultural property has intensified. Cultural property - with its symbolic, identity-generating and economic dimensions - has increasingly become the target of deliberate and systematic attacks. This is often done with the aim to belittle, humiliate and shock the 'other', permanently scare them away from their territory, 'erase' the past and provoke public outrage. It has been observed - particularly in relation to ISIS (the armed group which has brutally destroyed cultural heritage in present day Iraq and Syria) and the powerful tools they use for disseminating their savage acts - that the loss of human life has become such a regular feature in the coverage of conflict that it often takes something beyond the 'ordinary' to draw attention. These acts and similarly vicious approaches to cultural property are in disturbing dissonance with law.
The full text is not available from SSRN.

November 27, 2017

Behrens on the Life and Work of Thomas M. McDade @DukeLawLibrary

Jennifer L. Behrens, J. Michael Goodson Law Library, Duke University School of Law, has published Beyond 'The Annals of Murder': The Life and Works of Thomas M. McDade. Here is the abstract.
Thomas M. McDade is best known (if not well-known enough) for his seminal 1961 reference bibliography, The Annals of Murder: A Bibliography of Books and Pamphlets on American Murders from Colonial Times to 1900. Beyond that singular text on early American murder trial accounts, though, lies more than 70 additional publications on American legal history, law enforcement, and literature, gathered together for the first time in an annotated bibliography of McDade’s lesser-known writings. The article also examines McDade’s fascinating life and varied career as an early FBI agent, World War II veteran, corporate executive, and true crime chronicler.
Download the article from SSRN at the link.

Call For Papers: Political Theology Network Inaugural Conference, February 15-17, 2018

From the mailbox:
Call For Papers
Political Theology Network Inaugural Conference:
February 15-17, 2018 Emory University Conference Center, Atlanta
Deadline for submission of proposals: December 18, 2017
Notification of acceptance: December 22, 2017
Submissions/Questions: vincent.lloyd@villanova.edu
Keynotes: Hussein Ali Agrama (Anthropology, University of Chicago); Shawn Copeland (Theology, Boston College); Faisal Devji (History, Oxford, UK); Cathleen Kaveny (Law and Theology, Boston College); Elettra Stimilli (Philosophy, Sapienza, Rome)
Conveners: Vincent Lloyd (Villanova) & Ted Smith (Emory)
We invite proposals of 200-300 words for papers exploring political theology, broadly understood as an interdisciplinary conversation about intersections of religious and political ideas and practices. Under the sign of “political theology” political theorists have reflected on analogies between political and theological sovereignty, Christian theologians have reflected on the role of memory and hope in political engagement, and cultural theorists have performed ideology critique. We are looking for papers that may draw on but also challenge and transform such classic conversations about political theology. In doing so, we aim to bring together scholars working with ethnographic, theoretical, theological, historical, literary, and cultural studies methods motivated by a concern for justice. We are particularly interested in proposals that speak to the following themes: economies, ecologies, legalities, embodiments, and racializations. Proposals engaging non-Christian and/or non-Western traditions are encouraged. This conference will inaugurate a professional network connecting scholars of political theology across varying fields and traditions, and we are eager for proposals to advance conversations about what political theology in the academy could look like.
Funding is available to cover travel and registration costs of a limited number of contingent faculty or graduate student participants with exceptional proposals. Please indicate if you would like to be considered for this funding opportunity.
Conference registration is not required to submit proposals. Nor is a proposal required to register.
To register, visit bit.do/ptn-register

Marber on Bloody Foundation? The Equestrian Statue of Theodore Roosevelt at the American Museum of Natural History

Sinclaire Deverux Marber, London School of Economics, Law Department, has published Bloody Foundation? The Equestrian Statue of Theodore Roosevelt at the American Museum of Natural History. Here is the abstract.
On October 27, 2017, protestors calling themselves the Monument Removal Brigade ("MRB") splashed red paint on the base of an equestrian statue of Theodore Roosevelt outside the American Museum of Natural History in New York ("AMNH" or the "Museum"). The portrait of the twenty-sixth President of the United States is flanked on either side by African and Native American men intended to represent their respective continents. On its anonymous blog, MRB called for the statue's removal and claimed, “[t]he true damage lies with the patriarchy, white supremacy, and settler-colonialism embodied by the statue.” The Museum responded that because the sculpture rests on public land, AMNH does not have the power to remove it. The AMNH protest occurs within a larger national debate about the place of public monuments. That the equestrian statue is situated on museum grounds presents a unique opportunity to foster thoughtful dialogue around this topic. The AMNH today uses science to look forward, but also to interpret the past. Natural history museums have their own dark histories of discriminatory practices; modern investigations should not just be relegated to artifacts, but to institutional histories. Who created this sculpture? What traditions inform the way it represents these three men? Why does the city own it? What did Theodore Roosevelt have to do with the museum? This interdisciplinary article will present the history of a particular statue and proposals for its future as a case study in dealing with controversial monuments.
The full text is not available for download from SSRN.

Gibson on Taming Uncivil Discourse: Does Reappropriating Group Insults Work? @WUSTL @SimonTheTam

James L. Gibson, Washington University in St. Louis, Department of Political Science, has published Taming Uncivil Discourse: Does Reappropriating Group Insults Work? Here is the abstract.
In an era of increasingly intense populist politics, a variety of issues of intergroup prejudice, discrimination, and conflict have moved center stage in American politics. Among these is “political correctness” and, in particular, what constitutes a legitimate discourse of political conflict and opposition. Yet the meaning of legitimate discourse is being turned on its head as some disparaged groups seek to reclaim, or reappropriate, the slurs directed against them. Using a Supreme Court decision about whether “The Slants” – a band named after a traditional slur against Asians – can trademark its name, we test several hypotheses about reappropriation processes, based on a nationally representative sample with an oversample of Asian-Americans and several survey experiments. In general, we find that contextual factors influence how people understand and evaluate potentially disparaging words, and we suggest that the political discourse of intergroup relations in the U.S. has become more complicated by processes of reappropriation.
Download the article from SSRN at the link.

Duncan On What Not To Do What Your Roommate Is Murdered In Italy: Amanda Knox, Her "Strange" Behavior, and the Italian Legal System @EmoryLaw

Martha Grace Duncan, Emory University School of Law, is publishing What Not to Do When Your Roommate Is Murdered in Italy: Amanda Knox, Her 'Strange' Behavior, and the Italian Legal System, in the Harvard Journal of Gender and the Law. Here is the abstract.
One of the most widely publicized cases of our time is that of Amanda Knox, the college student from West Seattle who was convicted of murdering her British roommate in Italy and served four years in prison before being acquitted and released. Retried in absentia, she was convicted again, only to be exonerated by the Italian Supreme Court, which handed down its final opinion in September, 2015. Throughout its eight-year duration, the case garnered worldwide attention, in part because of the pretty, photogenic defendant and the drug-fueled sex game that the prosecutor adduced as the motive for the crime. Interest in the case spiked again with the release of a Netflix original documentary, Amanda Knox, in the fall of 2016. While the Amanda Knox case has been remarkable for its ability to fascinate an international audience, it is not altogether unique. Rather, it is emblematic of broader themes and a broader problem−that of human beings’ prejudice against “strangeness” and our desperation for a hasty assessment of guilt or innocence‒qualities that can bleed into a legal system to the detriment of the quest for truth. In this Article, I explore the Amanda Knox case in the context of our defective ability to judge. In Part One, I use the conceit of a “What Not to Do” list to highlight the role played by Amanda’s “strangeness” in bringing about her arrest and two convictions. In Part Two, I re-examine the usual rationale for Amanda’s behavior and suggest that a better explanation lies in her age and developmental stage. In Part Three, I shift from the interpreted to the interpreters, arguing that the latter were powerfully affected by the Madonna/whore complex and cultural differences between Perugia and Seattle. In Part Four, I analyze the impact of the Italian legal system, with its deep roots in the inquisitorial paradigm and its limited adversarial reforms. This Article is based not only on scholarly research but also on my four sojourns in Italy, where I retraced Amanda’s footsteps and discussed the case with numerous legal experts. I had the opportunity to interview Amanda herself after she was free in Seattle.
Download the article from SSRN at the link.

Tranter on Law, the Digital, and Time: The Legal Emblems of Doctor Who @GriffLawSchool

Kieran Mark Tranter, Griffith University Law School, is publishing Law, the Digital and Time: The Legal Emblems of Doctor Who in volume 30 of the International Journal for the Semiotics of Law (2017). Here is the abstract.
This article is about time. It is about time, or more precisely, about the absence of time in law’s digital future. It is also about time-travelling and the seemingly ever-popular BBC science fiction television series Doctor Who. Further, it is about law’s timefullness; about law’s pictorial past and the ‘visual baroque’ of its chronological fused future. Ultimately, it is about a time paradox of seeing time run to a time when time runs ‘No More!’ This ‘timey-wimey’ article is in three parts. The first part looks to a hazy remembered past of the legal emblem tradition as presented in Peter Goodrich’s Legal Emblems and the Art of Law to learn visual litercy and also glimps the essential elements of modern legality with authority, decision and violence. The second part maps how these images and icons of modern legality are manifest in the Doctor Who fiftieth year anniversary special ‘The Day of the Doctor.’ The third stage looks beyond these first order meanings to understand the chronological chaos of ‘The Day of the Doctor.’ The technicity of the image as a portal through time and space that the narrative revolves around charts the implications for the digital end of time for law.

Download the article from SSRN at the link. 

November 22, 2017

Via @maksdelmar: Conversation In Law and Society, a Project from the Center for the Study of Law and Society @CSLSatBerkeley

Of interest: Conversations in Law and Society, a project from the Center for the Study of Law and Society, University of California, Berkeley Law.

These discussions began in 2010, and include interviews with Joseph R. Gusfield, Stewart Macaulay, Lawrence Friedman, Laura Nader, Marc Galanter, Jerome Skolnick, Sally Falk Moore, Sanford H. Kadish, William K. Muir, Harry N. Scheiber, Richard D. Schwartz, David M. and Louise G. Trubek, Robert A. Kagan, Sally Engle Merry, John and Jean Comaroff, Malcolm Feeley, Susan S. Silbey, Austin Sarat, and Kitty Calavita.

Via @maksdelmar. 

November 21, 2017

A New Book From Edward Elgar Publishing: Negotiating Cultural Rights, Edited by Lucky Belder and Helle Potsdam @ElgarPublishing

New from Edward Elgar Publishing: Negotiating Cultural Rights: Issues at Stake, Challenges and Recommendations (Lucky Belder and Helle Potsdam, eds., 2017).
The various reports on cultural rights by UN Special Rapporteur Faridah Shaheed have provided a new universal standard for topics ranging from cultural diversity, cultural heritage, the right to artistic freedom and the effects of today's intellectual property regimes. This book’s team of international contributors reflects upon the many aspects of cultural rights discussed in Faridah Shaheed’s reports and discusses how cultural rights support cultural diversity, foster intercultural dialogue and contribute to inclusive social, economic and political development. Drawing from a range of disciplines, the contributing authors explore the meaning and position of cultural rights and the implications these may have for international relations, the international legal order and cross-cultural understanding, while also offering recommendations for the future. Key topics discussed include the link between culture and science, gender and human rights, rights to artistic freedom, the importance of historical narratives and the impact of advertising and marketing on the enjoyment of cultural rights. This worthwhile contribution to the current cultural rights debate will be of interest to academics and students teaching and studying in the fields of culture, heritage and human rights as well as policymakers who are working within cultural rights related issues.









Negotiating Cultural Rights

November 20, 2017

A New Book From Thomas Giddens: On Comics and Legal Aesthetics @ThomGiddens @routledgebooks

Forthcoming from Routledge: Thomas Giddens, St. Mary's University, On Comics and Legal Aesthetics: Multimodality and the Haunted Mask of Knowing (forthcoming, 2018). Here is a description of the book's contents.
What are the implications of comics for law? Tackling this question, On Comics and Legal Aesthetics explores the epistemological dimensions of comics and the way this once-maligned medium can help think about – and reshape – the form of law. Traversing comics, critical, and cultural legal studies, it seeks to enrich the theorisation of comics with a critical aesthetics that expands its value and significance for law, as well as knowledge more generally. It argues that comics’ multimodality – their hybrid structure, which represents a meeting point of text, image, reason, and aesthetics – opens understanding of the limits of law’s rational texts by shifting between multiple frames and modes of presentation. Comics thereby exposes the way all forms of knowledge are shaped out of an unstructured universe, becoming a mask over this chaotic ‘beyond’. This mask of knowing remains haunted – by that which it can never fully capture or represent. Comics thus models knowledge as an infinity of nested frames haunted by the chaos without structure. In such a model, the multiple aspects of law become one region of a vast and bottomless cascade of perspectives – an infinite multiframe that extends far beyond the traditional confines of the comics page, rendering law boundless.

Meyn on Why Civil and Criminal Procedure Are So Different: A Forgotten History @WisconsinLaw

Ion Meyn, University of Wisconsin Law School, has published Why Civil and Criminal Procedure Are So Different: A Forgotten History at 86 Fordham Law Review 697 (2017). Here is the abstract.
Much has been written about the origins of civil procedure. Yet little is known about the origins of criminal procedure, even though it governs how millions of cases in federal and state courts are litigated each year. This Article’s examination of criminal procedure’s origin story questions the prevailing notion that civil and criminal procedure require different treatment. The Article’s starting point is the first draft of the Federal Rules of Criminal Procedure — confidential in 1941 and since forgotten. The draft reveals that reformers of criminal procedure turned to the new rules of civil procedure for guidance. The contents of this draft shed light on an extraordinary moment: reformers initially proposed that all litigation in the United States, civil and criminal, be governed by a unified procedural code. The implementation of this original vision of a unified code would have had dramatic implications for how criminal law is practiced and perceived today. The advisory committee’s final product in 1944, however, set criminal litigation on a very different course. Transcripts of the committee’s initial meetings reveal that the final code of criminal procedure emerged from the clash of ideas presented by two committee members, James Robinson and Alexander Holtzoff. Holtzoff’s traditional views would ultimately persuade other members, cleaving criminal procedure from civil procedure. Since then, differences in civil and criminal litigation have become entrenched and normalized. Yet, at the time the Federal Rules of Criminal Procedure were drafted, a unified code was not just a plausible alternative but the only proposal. The draft’s challenge to the prevailing notion that civil and criminal wrongs inherently require different procedural treatment is a critical contribution to the growing debate over whether the absence of discovery in criminal procedure is justified in light of discovery tools afforded by civil procedure. The first draft of criminal procedure, which called for uniform rules to govern proceedings in all civil and criminal courtrooms, suggests the possibility that current resistance to unification is, to a significant degree, historically contingent.
Download the article from SSRN at the link.

Howlin on Maamtransna: The Trial of Miles Joyce in 1882 @N_Howlin

Niamh Howlin, Sutherland School of Law, University College Dublin, has published Maamtrasna: The Trial of Myles Joyce in 1882 as UCD Working Papers in Law, Criminology, & Socio-Legal Studies Research Papers No. 1817. Here is the abstract.
At Maamtrasna, County Galway, five members of the Joyce family were brutally killed in August 1882. The initial victims were John Joyce his mother, Margaret Joyce, his wife, Bridget Joyce, his daughter, Margaret Joyce (also known as Peggy). John’s son, Michael Joyce, died of his injuries the following day. The sole survivor of the attack was Patsy Joyce, John’s youngest son, aged around nine or ten years. Myles Joyce was convicted in November 1882 of murdering his cousin, Margaret Joyce. He was one of ten men arrested. Two of these men, Anthony Philbin and Thomas Casey, later testified against the others. Five pleaded guilty and received prison sentences; these were Michael Casey, Martin Joyce (Myles’s brother), Patrick Joyce (another brother of Myles), Tom Joyce (Patrick’s son) and John Casey. Three men, Myles Joyce, Patrick Joyce and Patrick Casey were tried, convicted and hanged. Given the number of victims, accused persons and accusers, and the remote, tight-knit nature of the area, it is unsurprising that there were various relationships between the main protagonists. They were neighbours, cousins, brothers, fathers and sons, many of whom shared the same names and surnames. Myles Joyce’s death sentence was executed at Galway Gaol in December 1882. Right up until the point of death Myles protested his innocence, and is now widely accepted as having been innocent of the offence. Two other men who were hanged alongside Myles, (Patrick Joyce and Patrick Casey), claimed responsibility for the murders before they were executed. Both emphasised Myles Joyce’s innocence. The question for this paper is whether the circumstances Myles’s conviction were inconsistent with the legal standards of the period.
Download the article from SSRN at the link.

Richards on an Expressive Theory of Tax @CornellLaw

Kitty Richards, Independent, is publishing An Expressive Theory of Tax in volume 26 of the the Cornell Journal of Law and Public Policy (2017). Here is the abstract.
The tax code is full of ineffective, inefficient, inequitable, or otherwise problematic provisions that make little sense when evaluated through the lens of traditional tax policy analysis, yet remain popular with citizens and legislators alike. The tax literature is equally full of carefully-researched, technically precise, and theoretically sound proposals for reform that nonetheless fail to get traction in the public debate. Why? What tax scholarship is missing is the importance of social meaning: what do our tax laws say about our society’s values, and how is taxation being used to construct cultural ideals in contested spaces? This article applies expressive theory, well developed in the criminal and constitutional law literature, to a series of tax policy puzzles, demonstrating how attention to social meaning can help to explain otherwise inexplicable behavior by legislators and policymakers, and can allow scholars to engage more productively in the policy process. From the tax treatment of Nevada’s legal brothels to tax preferences for retirement savings, social meaning matters, and frequently dominates traditional tax policy concerns. This observation has far-reaching implications for tax scholarship, policy design, and advocacy.
Download the article from SSRN at the link.

Soucek on Aesthetic Judgment in Law @BRSoucek @UCDavisLaw

Brian Soucek, University of California, Davis, School of Law, has published Aesthetic Judgment in Law at 69 Alabama Law Review 381 (2017). Here is the abstract.
Almost no one thinks the government should decide what counts as art or what has aesthetic value. But the government often does so, and often, it should. State actors — from judges and legislators down to customs officials and members of local zoning boards — make aesthetic judgments every day, in areas ranging from tax and tariff law to obscenity and public-funding decisions, from historic preservation and land-use regulations to copyright, trademark, and patent law. This Article details the breadth and surprising philosophical depth of the law’s engagement with aesthetic questions. And bucking conventional wisdom, it argues that in many areas of law, government should define artistic categories and promote aesthetic values. The usual reasons for treating aesthetic judgment as what Justice Holmes famously called a “dangerous undertaking” turn out to be bad ones. Arguments based on the expertise of judges or the subjectivity of aesthetic judgment are not just unconvincing, they are in tension with one another. And the one persuasive argument — derived from the First Amendment’s prohibition on government-imposed orthodoxies — applies only as far as the First Amendment itself does. This Article offers a framework for deciding when the First Amendment limits aesthetic judgment in law. And in doing so, it also identifies appropriate sites of aesthetic judgment — places where we need more open debate about the substantive aesthetic values we want the law to endorse.
Download the article from SSRN at the link.

November 17, 2017

Palombella on Interlegality and Justice

Gianluigi Palombella, Scuola Superiore Sant'Anna di Pisa; University of Parma, has published Interlegality and Justice. Here is the abstract.
This articles suggests a peculiar perspective on law., that is, "interlegality". Amidst the plurality of orders, regimes, legal systems, and the overlapping of legalities, hardly arbitrated by hierarchy, are the system-based paradigms, be they monist, dualist or pluralist, still capable of reflecting the present complexity? The main concern triggering an inter-legality approach is not the coexistence among legalities as they create parallel worlds of normativity (that of global trade, of world health, of state welfare, of regional security, and so forth) but the resilience of the material interconnectedness that comes to affect the nature and functioning of legality. Without giving into the mainstream temptation of drawing a global constitutional promise, interlegality attempts at changing the epistemic perspective on law. To do so, it draws some theoretical frame that not only has to avoid the monist-dualist alternatives, but also relocates the achievements of legal pluralism and steps beyond it.
Download the article from SSRN at the link.

Mulcahy on Eyes of the Law: A Visual Turn in Socio-Legal Studies? @LindaMulcahy2

Linda Mulcahy, London School of Economics, Law Department, has published Eyes of the Law: A Visual Turn in Socio‐Legal Studies? at 44 Journal of Law and Society S111 (2017). Here is the abstract.
A number of sub‐disciplines have emerged in recent years with the specific goal of examining the visual dynamics of academic fields of inquiry. The turn to the visual masks a multitude of meanings about the significance of the image, ranging from new ways of defining a field of inquiry, to what constitutes legitimate sources for research or discussions of image production or visual prompts as a data collection method. This article asks what it means for socio‐legal scholars to engage with the image and the opportunity it might provide us with to see what law looks like from the perspective of law's subjects. These might include art installations in galleries, images of the places where justice is administered as well as photographs created by those who are subjected to legal regulation. In addition to a written essay I offer up three visual essays which can be read and contemplated with or without the written text which accompanies them.
The full text is not available from SSRN.

November 15, 2017

Wesson on The Chow: Depictions of the Criminal Justice System as a Character In Crime Fiction @ColoLaw @alafairburke

Marianne Mimi Wesson, University of Colorado Law School, has published The Chow: Depictions of the Criminal Justice System as a Character in Crime Fiction at 51 New Eng. L. Rev. 101 (2017). Here is the abstract.
Having been honored by a request to contribute to a Symposium honoring my talented friend Alafair Burke, I composed this essay describing the various ways the criminal justice system has been depicted in English-language crime fiction. This survey, necessarily highly selective, considers portrayals penned by writers from Dickens to Tana French. Various dimensions of comparison include the authors’ apparent beliefs about the rule of law (from ridiculously idealistic to uncompromisingly cynical), the characters’ professional perspectives (private detective, police officer, prosecutor, defense lawyer, judge, victim, accused), and the protagonists’ status as institutional insiders or outsiders or occupants of the uncomfortable middle. The essay considers as well the protagonists’ insights (often useful, too often nonexistent) regarding issues of gender, race, and economic status — in their own professional lives, and as determinants of how one accused of a crime, or victimized by one, will experience the institutions of criminal justice. The essay concludes with some worried observations about what the election of Donald Trump may portend for crime fiction, in its likely corrosion of the rule of law and thus of the institutions of criminal justice.
Download the article from SSRN at the link.

Call for Applications: War and Society: Post-doctoral Fellowship in the Humanities at Haverford College, 2018-2020 @haverfordedu @haverfordcah


From the mailbox:

War and Society: Post-doctoral Fellowship in the Humanities at Haverford College, 2018-2020
Location: Haverford, PACloses: Jan 9, 2018 at 11:59 PM Eastern Time
The John B. Hurford ’60 Center for the Arts and Humanities of Haverford College invites applications for a two-year Mellon Postdoctoral Fellowship in the Humanities to begin Fall 2018 (see  https://www.haverford.edu/hcah/center/programs-and-grants/mellon-postdoctoral-fellowship for details). We seek a scholar interested in the comparative history, social and cultural impact, and artistic representation of war. Candidates should have broad theoretical and interdisciplinary interests.
During the first year of the program, the Mellon Postdoctoral Fellow will participate in a year-long faculty seminar, led by Professor Paul Jakov Smith (History and East Asian Studies), that will bring together faculty with a variety of disciplinary perspectives. Applicants should make clear the nature of their potential contributions to this seminar, which will explore how war has been entwined with politics, science, and the material world, and how it is reflected in artistic genres and the written, visual, and oral records of the present and the past. (For a more detailed description, see https://www.haverford.edu/hcah/center/programs-and-grants/faculty-seminars.)
In the second year, the Mellon Postdoctoral Fellow will organize and present a spring symposium related to his or her scholarly field funded by the Hurford Center.
During each of the four semesters at Haverford College, the Mellon Fellow will teach one course at the introductory/intermediate or advanced level and engage a diverse student body. Applicants should submit two brief course proposals related to their area of interest, one for a broad-based introductory or intermediate course and the other for a more specialized or advanced course.

Qualifications
Candidates who earned their Ph.D. no earlier than 2013 and have completed all requirements for the Ph.D. by the application deadline of January 9, 2018 are eligible to apply.
Application Instructions
Applicants are asked to submit a cover letter, a curriculum vitae, two course proposals, and a writing sample of no more than 25 pages, and should arrange to have three confidential letters of recommendation submitted via Interfolio at: https://apply.interfolio.com/46719 .
Questions can be directed to Noemí Fernández (nfernandez@haverford.edu )








November 14, 2017

Comics, Taxes, and Civil Rights

Winnipeg high school student Elly Hooker has won a national award for the comic she created which tells the story of Nova Scotian Viola Desmond's fight for civil rights. Ms. Desmond, born in Halifax, became famous in 1946 for refusing to sit in a segregated area of a New Glasgow, Nova Scotia, movie theater.  She didn't realize that the ticket she had bought was only good for a balcony seat, where all African-Canadians had to sit. Downstairs seating was only for white Canadians. She wanted to purchase a downstairs ticket but the cashier refused. When she tried to take a downstairs seat, police arrested her. The next day, she paid a fine for refusing to pay the one cent difference between the ticket prices (based on the "amusement tax" due to the provincial government).

She eventually appealed to the courts. Although she died in 1965, her sister continued the fight for her. In 2010, the then Lieutenant-Governor of Nova Scotia granted Ms. Desmond a pardon. In 2016, the Bank of Canada chose Viola Desmond as the first Canadian woman to appear on a Canadian banknote (the ten-dollar bill).

Ms. Hooker will receive the Kayak Kids' Illustrated History Challenge in Ottawa for her comic celebrating Viola Desmond.

A short Viola Desmond bibliography below:

Heritage Minutes: Viola Desmond; Historica Canada: Heritage Minutes

How Civil Rights Icon Viola Desmond Helped Change Course of Canadian History

The Story of Viola Desmond, "Canada's Rosa Parks"

Who's the Woman on Canada's New $10 Bill? A Viola Desmond Primer

John Kerrigan on Shakespeare's Binding Language (OUP, 2016) @Canbridge_Uni

ICYMI:

John Kerrigan, Professor of English, Cambridge University, has published Shakespeare's Binding Language (Oxford University Press, 2016).
This remarkable, innovative book explores the significance in Shakespeare's plays of oaths, vows, contracts, pledges and the other utterances and acts by which characters commit themselves to the truth of things past, present, and to come. In early modern England, such binding language was everywhere. Oaths of office, marriage vows, legal bonds, and casual, everyday profanity gave shape and texture to life. The proper use of such language, and the extent of its power to bind, was argued over by lawyers, religious writers, and satirists, and these debates inform literature and drama. Shakespeare's Binding Language gives a freshly researched account of these contexts, but it is focused on the plays. What motives should we look for when characters asseverate or promise? How far is binding language self-persuasive or deceptive? When is it allowable to break a vow? How do oaths and promises structure an audience's expectations? Across the sweep of Shakespeare's career, from the early histories to the late romances, this book opens new perspectives on key dramatic moments and illuminates language and action. Each chapter gives an account of a play or group of plays, yet the study builds to a sustained investigation of some of the most important systems, institutions, and controversies in early modern England, and of the wiring of Shakespearean dramaturgy. Scholarly but accessible, and offering startling insights, this is a major contribution to Shakespeare studies by one of the leading figures in the field.



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Call For Papers: Workshop: The Othered Senses: Law, Regulation, Sensorium

From the mailbox:


CALL FOR PAPERS

WORKSHOP

The Othered Senses:
Law, Regulation, Sensorium

May 1-2, 2018
Montreal, Quebec, Canada

The Othered Senses: Law, Regulation, Sensorium is an intensive scholarly workshop in Montreal, Quebec to take place on May 1-2, 2018.

The Othered Senses launches from, and seeks to trouble, two premises. The first is that law and legal studies has come lately to the study of the sensual, and when the law has thought about the senses, the story is frequently one of discipline, translation, and the movement of non-rational senses into rational Law, with a capital “l”. The second premise is that inquiry into the senses remains dominated by a focus on the ocular- and aural-centric, leaving the study of the ‘other’ senses (taste, touch, and smell) understudied, treating the senses in isolation, and reproducing a five-sense understanding of sensation. We suggest the time is right for intellectual and political creativity in the imagined and material spaces where legal regulation and sensorial experience clash, where laws and sensing bodies entangle, and where sensuality and legal institutions flirt. We invite scholars to explore the multi-directional flows of legal-sensory encounter and its multiple modes and registers.

In this workshop we seek to animate an interdisciplinary discussion that brings together scholars interested in the unlikely, messy, and less studied ways in which sensing bodies and legal(ized) practices interact in powerful ways. We hope to disrupt the normal and normalizing order of senses, to counter law’s attachment to reason, and to de-romanticize the body. We ask: whose senses count and do not count in law’s register? What invisible work do the ‘lower’ senses do? How can regulatory structures take account of the synaesthetics of embodied experience? How does the hierarchy of the senses intersect with the debilitating structuring dualisms of Western culture: mind/body; person/property; human/animal; adult/child; abled/disabled; settler/savage? And how might we disrupt and dismantle the regulatory apparatuses which invest in these dualisms? In what ways might legal logics and sensorial pleasures productively stimulate each other?

We invite questions in the spirit of, but not in any way limited to, the following:

-                      how do drones touch, and not only see, their objects of surveillance?
-                      can a pig be a witness? can an android?
-                      does smoke have agency? does noise? water? a camera?
-                      how does the stride function as a technology of normative mobility?
-                      what are the cultural effects of tales of extra-sensory perception?
-                      how does feeling ‘at home’ intersect with the production and disruption of legally enforced borders, social and geographic?
-                      how does the law know silence? who gets to be noisy in public space? who is quieted?
-                      how are the bodies of the sovereign and its subjects re-produced in the state deployment of sounds as weapons?
-                      how do different skins shape the self- and other- regulation of intimacies? When should the law take note, if at all?
-                      what are the inter-subjective effects of the exhortation, “don’t touch!”
-                      in what vocabulary could a sexual assault victim give taste testimony?
-                      if one’s hand is one’s bond in law, how is touch figured? What happens when touch in public is subject to regulation?

This event is a collaboration between the Canadian Initiative in Law, Culture and Humanities at Carleton University and the Centre for Sensory Studies at Concordia University. It will be held in conjunction with the Uncommon Senses 2: Art, Technology, Education, Law, Society and Sensory Diversity, an international conference taking place on May 2-5, 2018 (see link http://www.sensorystudies.org/events-of-note/).

We invite submission of abstracts of 300 words for individual papers to cilch@carleton.ca. Please provide your contact information and a 100 word biographical statement in the email attaching your abstract. The final deadline for all submissions is November 30th.

Authors of those papers selected for The Othered Senses will be asked to prepare and circulate drafts of their papers in advance, each paper will receive a dedicated respondent, and the work will be discussed intensively at the workshop. Those refereed papers not able to be accepted for participation in The Othered Senses will be included in the Uncommon Senses 2 conference.



Tucker on Writing Labor Law History: A Reconnaissance @OsgoodeNews

Eric Tucker, York University, Osgoode Hall; Cleveland-Marshall College of Law (Visiting), has published On Writing Labour Law History: A Reconnaissance as Osgoode Hall Legal Studies Research Paper No. 66/2017. Here is the abstract.
Labour law historians rarely write about the theoretical and methodological foundations of their discipline. In response to this state of affairs, this article adopts a reconnaissance strategy, which eschews any pretense at providing a synthesis or authoritative conclusions, but rather hopes to open up questions and paths of inquiry that may encourage others to also reflect on a neglected area of scholarship. It begins by documenting and reflecting on the implications of the fact that labour law history sits at the margins of many other disciplines, including labour history, legal history, labour law, industrial relations and law and society, but lacks a home of its own. It next presents a short historiography of the writing of labour law history, noting its varied and changing intellectual influences. Next the article notes some of the methodological consequences of different theoretical commitments and discusses briefly the possibilities opened up by computer technologies as revealed by two interesting projects that rely heavily on the construction of sophisticated data bases. Finally, the article reflects on the methodological challenges I have experienced in my current project on labour law’s recurring regulatory dilemmas and conclude with some thoughts on the contribution labour law history can make to our understanding of the dynamics that shape its current challenges.
Download the article from SSRN at the link.