Jack Bauer Syndrome

Tung Yin, Lewis and Clark Law School, has published Jack Bauer Syndrome: Hollywood's Depiction of National Security Law, at 17 S. Cal. Interdisc. L.J. 279 (2008), also presented at the 2008 AALS Section on Law and Humanities panel. Here is the abstract.

In this Article, which was presented at the Law & Humanities Section Panel at the 2008 Annual AALS Conference, I examine the way that the Fox television series "24" portrays two issues relevant to national security law: the use of torture to extract information in order to stop an imminent terrorist attack, and the depiction of Arabs as villains (and non-villains) with the concomitant impact on racial profiling and other stereotyping of Arab-Americans and Arabs. I conclude that the depiction of torture is narratively stacked in favor of government agent Jack Bauer. I also conclude that "24" attempts to balance its portrayal so that not all villains are Arabs, and not all Arabs are villains. However, I point out points of improvement in this area.

Download the article from SSRN at the link.

Online Education Humanities Database

Nice mention of the Law and Humanities blog at the Online Education Humanities Database.

Hamlet's Hung Jury

After a notoriously long delay in the proceedings, Prince Hamlet's trial for the murder of Polonius finally got underway in Los Angeles, California (a change of venue from Elsinore was granted--tainted jury pool there). The defense pled insanity, the prosecution argued homicide, and the result after expert testimony and a lot of wrangling was 10 to 2 for conviction. The jurors included actors Helen Hunt and Tom Irwin. Arguing for the prosecution were Deputy District Attorney Danette Meyers and attorney Nathan J. Hochman, for the defense, Blair Berk and Richard J. Hersch. Associate Supreme Court Justice Anthony Kennedy presided over the proceedings, held at the University of Southern California School of Law. More here.

Where Is Cora Crippen?

Dr. Hawley Crippen's wife Cora disappeared sometime in February 1910. A few months later, he and his mistress, Ethel Le Neve, were arrested and stood trial for her murder. Miss Le Neve was acquitted, but Dr. Crippen was found guilty, in one of the most sensational trials Britain had seen. In November, still protesting his innocence of the crime, he was hanged.

For decades few have doubted Dr. Crippen's guilt. Now, forensic investigators from Michigan State University's School of Criminal Justice have determined that the remains discovered in Dr. Hawley Crippen's coal cellar, long presumed to be those of his missing wife Cora, are not hers. They aren't even female.

Based on the genealogical and molecular data presented here, only
one conclusion can be drawn: the remains obtained from the
Crippen’s cellar at 39 Hilldrop Crescent, London, in 1910 were not
those of Dr. Crippen’s wife. It is beyond the scope of this article to
speculate on whose they were (clearly they were human) or how
they came to be in the Crippen’s coal cellar. It must be noted that
the forensic tools available today are far advanced from those
available in 1910, so it is perhaps not surprising that new (and conflicting) results were obtained, as still  happens. Forensic
science in 1910 was in its infancy, and scientists at the time had to rely on the tools and techniques available to them. DNA testing of
remains, such as those found in the Crippen’s (sic) cellar, would today be virtually automatic, producing far more objective results for personal identification than interpretation of small physical abnormalities in
highly decayed flesh. Finally, in light of the data presented here, we can briefly look
at the outcome of Dr. Crippen’s investigation and trial. As noted earlier, Dr. Crippen proclaimed his innocence throughout, stating before his hanging that ‘‘I insist I am innocent…some day evidence
will be discovered to prove it…’’ The heinous crime for which Dr. Crippen was hanged, which intrigued much of the world in 1910, was illogical in many ways. If Dr. Crippen, described as very mild
mannered, had murdered his wife, why did he openly flaunt her absence by selling many of her possessions, and taking his mistress out socially where she sometimes wore his missing wife’s jewelry? Even more perplexing is the manner in which the body was discarded. If a murderer was successful in killing his victim unwitnessed, then dismembering and disposing of the head, arms, legs, and every bone, why go through the ordeal of carefully sectioning out the victim’s viscera (performed in a single piece with reported surgical skill), and burying these soft tissues, excluding anything that could identify sex, in one’s very own basement, along with a small amount of hair and a pajama top? It is these acts (and others) that have long led historical investigators to wonder whether Dr. Crippen actually did murder his wife and whether the cellar remains were hers.  The judge, Lord Richard Alverston, condemned Dr. Crippen to die by hanging. Before the jury’s deliberation, he stated regarding the remains: ‘‘Gentlemen, I think I may pass for the purpose of
your consideration from the question of whether it was a man or woman. Of course, if it was a man, again the defendant is entitled to walk out of that dock.’’ Sexing the remains was impossible at the time, as were other purely objective methods for their identification.  We are thus left with an instance of historical misidentification. Based on the genealogical and genetic investigations presented here, the remains found in Dr. Crippen’s coal cellar were not only not Cora Crippen’s, they were not even female.

Writers, including Patricia Highsmith ("The False Inspector Dew") have used the Crippen story as the basis for intriguing speculation and this new information will fuel the fire. Whose remains were buried in Dr. Crippen's cellar and why? And where is Cora?

Conference on Law, Science, and Technology

From Dr. Maksymilian Del Mar, Institut des sciences sociales, Université de Lausanne, Switzerland, news of an interesting conference to be held in August.

The Congress of the International Association for Legal and Social Philosophy (IVR), to be held August 15-20, 2011, in Frankfurt,  has the theme "Law, Science, and Technology." Dr. Del Mar and Dr. Randy Gordon are organizing one workshop on exemplary narratives and are particularly interested in interdiscplinary papers in the areas of law and literature and law and legal and literary theory. There will also be papers presented that discuss the role of exemplary narratives historically and in theological practices, particularly in Jewish legal theory.

Anyone interested can get in touch with Dr. Del Mar at Maksymilian.DelMar@unil.ch) and/or Dr.Gordon at rgordon@gardere.com.

Call For Papers

16TH ANNUAL UBC INTERDISCIPLINARY LEGAL STUDIES


GRADUATE STUDENT CONFERENCE - CREATIVE LAW

May 13-14, 2011, Vancouver

Registration Deadline: April 1, 2011


Submission Deadline: February 4, 2011

The Graduate Law Students' Society of UBC invites graduate students in all disciplines to participate in its 16th annual interdisciplinary academic conference, to be held in Vancouver, Canada, on May 13-14, 2011.

THEME:


The theme for the 2011 conference is Creative Law. The conference is intended to promote reflection on "creativity and the law" in all the possible senses of that phrase: law and its interaction with the arts, including literature and theatre; innovation within the law and innovative uses of the law; the development of new law; legal postmodernism; new and distinctive ways of interpreting law; the relationship between law and religion; the application, adoption or appropriation of law in or by other disciplines and in a thousand other ways. We encourage scholars to critique or apply the law in new and unexpected ways, and in doing so to consider the field of law as one that is bounded not by the strictures of formal law but only by the creativity of the scholar interpreting or applying that law. We also strongly encourage abstracts that approach law from a more traditional perspective, especially those that consider the ways in which traditional scholarship can respond to the creative impulses of law (and its practitioners), as well as the benefits and limitations of approaching law and legal theory from more traditional perspectives.

SUBMISSION GUIDELINES:



Proposals should include the title of the paper, a 250 word abstract, and the student's full institutional affiliation, e-mail address and phone number. Presenters should be current graduate students or have recently completed graduate studies (exceptional proposals from 3rd year LL.B./J.D./B.A. students may be accepted). Early submissions are strongly encouraged as participation is limited. In order to keep registration fees as low as possible, funds cannot be provided to assist with travel or other costs of participation. The general working language of the conference will be English.



Abstract Submission Deadline: February 4, 2011



Please email your abstract to:



Email: lawgradcon@gmail.com





REGISTRATION/CONFERENCE DETAILS:



Registration deadline and fees payable by: April 1, 2011



Conference Dates: Friday - Saturday, May 13 & 14, 2011



Conference Location: The University of British Columbia,

Vancouver, BC



The registration form can be found on the conference

website at:



http://www.law.ubc.ca/events/2011/may/registration.html



Conference organizers can also be contacted at:



Email: lawgradcon@gmail.com

Whodunit? BBC Plans To Answer the Edwin Drood Question This Year

The BBC will offer an answer to The Mystery of Edwin Drood in a new adaptation by Gwenyth Hughes. The new version will air on BBC4 later this year.

Legal Tomfoolery

Angela Fernandez, University of Toronto Faculty of Law, has published The Ancient and Honorable Court of Dover: Mock Trials, Fraternal Orders, and Solemn Foolery in Nineteenth-Century New York State. Here is the abstract.

This article is about a fraternal order operating in the first half of the Nineteenth Century in New York called “The Ancient and Honorable Court of Dover.” This group organized a mock trial, probably in 1834, to prosecute one of its members. A prosecutor was appointed and the President of the group gave a long speech. At issue was whether or not non-members could participate in the trial. After a description of these records and an account of their discovery, this article explains who the individuals involved in the trial were, Jacksonian politicians and lawyers with connections to the Custom House and the Tammany Society in New York City. It then describes what a “Court of Dover” was, asks about what the offence here was, and explores the connections between this group and the most famous “Ancient and Honorable” society, the Freemasons. It argues that the records of a group like this should be understood as a kind of “legal literature” that is best understood in relationship to the notion of “solemn foolery,” a phrase that has been used in connection to the legally-themed theatricals at the Inns of Court.

Download the paper from SSRN at the link.

Jack Bauer and "24": Torture In American Culture

Kate Kovarovic, American University Washington College of Law, has published Our ‘Jack Bauer’ Culture: Eliminating the Ticking Time Bomb Exception to Torture in volume 22 of the Florida Journal of International Law (2010). Here is the abstract.

After eight successful seasons on the air, Americans have come to trust Jack Bauer of 24 to get the job done. Regardless of the circumstances, Jack always succeeds where most men cannot; Jack can always find a way to break a terrorist suspect and obtain the exact information he needs to save the world. Because of this unrealistic portrayal of the successes of torture, Americans have also come to expect that Jack Bauer is not the exception, but the norm. The War on Terror has introduced a new legal theory to the American consciousness: that of the ticking time bomb exception. Despite the country’s pledge to uphold the principles of the ICCPR and the Convention against Torture, more and more Americans are rallying around the ticking time bomb exception, which permits government officials to torture a suspect who might possess critical information regarding an imminent security threat. This paper seeks to convey that the ticking time bomb exception is strictly prohibited under national and international law, and to place the ticking time bomb exception in a more realistic context for the American public.

Download the article from SSRN at the link.

New Television Dramas

This January sees the premiere of two new legal series. "Harry's Law", which stars Linda Bates, premieres January 17 on NBC at 10, 9 Central Time. Harry is a patent lawyer, fired from her firm who begins again as a criminal law attorney. "Fairly Legal" stars Sarah Shahi and premieres on the USA Network on January 20 at 10, 9 Central Time. Kate Reed is an attorney working at her family firm who decides to become a mediator.

The Critique of Law In "A Passage To India"

Allen Mendenhall, Auburn University, West Virginia University, Temple University, and Furman University, has published The Oft-Ignored Mr. Turton: The Role of District Collector in a Passage to India as volume 2, no. 44 of Libertarian Papers (2010). Here is the abstract.

E.M. Forster’s A Passage to India presents Brahman Hindu jurisprudence as an alternative to British rule of law, a utilitarian jurisprudence that hinges on mercantilism, central planning, and imperialism. Building on John Hasnas’s critiques of rule of law and Murray Rothbard’s critiques of Benthamite utilitarianism, this essay argues that Forster’s depictions of Brahman Hindu in the novel endorse polycentric legal systems. Mr. Turton is the local district collector whose job is to pander to both British and Indian interests; positioned as such, Turton is a site for critique and comparison. Forster uses Turton to show that Brahman Hindu jurisprudence is fair and more effective than British bureaucratic administration. Forster’s depictions of Brahman Hindu are not verisimilar, and Brahman Hindu does not recommend a particular jurisprudence. But Forster appropriates Brahman Hindu for aesthetic and political purposes and in so doing advocates a jurisprudence that does not reduce all experience to mathematical calculation. Forster writes against the Benthamite utilitarianism adopted by most colonial administrators in India. A tough figure to pin down politically, Forster celebrates the individual and personal relations: things that British rule of law seeks to suppress.

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

The Right of Publicity In Australia and Singapore

David Tan, National University of Singapore, has published The Fame Monster Reloaded: The Contemporary Celebrity, Cultural Studies and Passing Off at the Singapore Journal of Legal Studies 151 (July 2010). Here is the abstract.

The common law jurisdictions of Australia and Singapore often adopt a conservative approach to recognising newproperty rights, particularly with respect to the human persona, but courts frequently take their cue from developments in the United Kingdom. This article revisits the landmark cases in these jurisdictions which, in declaring that a property right in the goodwill of a celebrity may be protected against unlicensed commercial appropriation, use language evocative of the right of publicity. It examines howthe courts have expanded the passing off action to prevent the unauthorised commercial use of the images of well-known personalities. Finally, by adopting a cultural studies analysis that investigates the semiotic nature of the celebrity sign and its influence on contemporary consumption, this article offers a different perspective to the debate on the protection of image rights.

The full text is not available from SSRN.

The Legal Interpretation of Art

Uladzislau Belavusau, European University Institute (Florence, Italy) and University of California, Berkeley, has published Art, Pornography and Foucauldian Reconstruction of Comparative Law at 17 Maastricht Journal of European and Comparative Law 252 (2010). Here is the abstract.

The article inquires into a delicate and often prudish legal problem of erotic art in the paradigmatic dynamics of national law on obscenity and an ever-growing body of international law of cultural heritage. Pornography is a popular legal construction in distinguishing ‘high art’ from cultural practices, allegedly deprived of artistic value. Yet since when do we know what is the obscene or the pornographic and why do we outlaw certain narratives and visualizations from the realm of freedom of expression? This question remains ultimately vague in national law (predominantly embraced under the heading of boni mores, or ‘public morality’) and even more scattered in contemporary international law. The latter seems to silence somewhat uncomfortable and outdated developments on pornography of the early 20th century. Consequently, this piece is an attempt to trace the genesis and evolution of the legal interpretation of art in the dichotomy of freedom of expression and pornography.

The full text is not available from SSRN.

Semiotics, Law, and Copyright

H. Brian Holland, Texas Wesleyan School of Law, is publishing Social Semiotics in the Fair Use Analysis in a forthcoming issue of the Harvard Journal of Law and Technology. Here is the abstract.

This article presents an argument for an expansion of fair use, based not on theories of authorship or rights of autonomy but rather on a theory of the audience linked to social practice. The article asks, in essence, whether audiences determine the meaning, purpose, function, or social benefit of an allegedly infringing work, often regardless of what the work’s creator did or intended. If so, does this matter for the purpose of a fair use analysis based on a claim of transformativeness?






Section I of the article sets the doctrinal groundwork for an exploration of social semiotic theory in the fair use inquiry by exploring a few of the more relevant points of controversy in that analysis, including: commerciality, transformativeness, and cognizable market harm. Section II of the article focuses on transformativeness, a concept at the heart of the first factor inquiry into the purpose and character of a defendant’s use of the copyrighted work. After exploring the prevailing conception of transformativeness, I propose an alternative – grounded in social semiotic theory – in which social value is manifest in the process of meaning-making that occurs as individuals and interpretive communities engage the work. It is in this process of semiosis that copyright’s commitment to the enrichment of society can be best evaluated as a distinct question apart from the creation of new authorial rights. Finally, the pending case of Shepard Fairey v. The Associated Press is used to illustrate how social semiotic theories are applied. Section III of the article looks at how social semiotic theory might be relevant in an analysis of the remaining fair use factors: the nature of the copyrighted work; the amount and substantiality used; and the effect on actual and potential markets. The article concludes that social semiotics is most helpful in terms of the second factor, the nature of the copyrighted work, with only limited application to the remaining factors.

Download the article from SSRN at the link.

Shakespeare's Place in the Law School Curriculum

Allen Mendenhall, Auburn University, West Virginia University, Temple University, and Furman University, has published Shakespeare's Place in Law-and-Literature in volume 3 of the Journal of Liberty and Society (2011). Here is the abstract.

Nearly every Anglo-American law school offers a course called Law-and-Literature. Nearly all of these courses assign one or more readings from Shakespeare’s oeuvre. Why study Shakespeare in law school? That is the question at the heart of these courses. Some law professors answer the question in terms of cultivating moral sensitivity, fine-tuning close-reading skills, or practicing interpretive strategies on literary rather than legal texts. Most of these professors insist on an illuminating nexus between two supposedly autonomous disciplines. The history of how Shakespeare became part of the legal canon is more complicated than these often defensive, syllabus-justifying declarations allow. This article examines the history of Shakespeare studies vis-à-vis legal education. It begins with early law-and-literature scholarship, which focused on Shakespeare’s history or biography – speculating as it did about whether Shakespeare was a lawyer or perchance received legal training – and concludes with recent law-and-literature scholarship treating Shakespeare as a source of insight for law students and lawyers alike. I submit that early law-and-literature scholarship on Shakespeare anticipated New Historicist theory and that more recent law-and-literature work, with its turn to presentism, is in lockstep with Shakespeare studies. In law-and-literature classrooms, Shakespeare is more fashionable like a hobby than scholarly like a profession; but law-and-literature scholarship on Shakespeare amounts to high-caliber work based on interdisciplinary research as well as deep engagement with legal and literary texts.



I wrap up this essay with a note about the direction of the university in general and of the law-and-literature movement in particular. I admit that my closing argument, as it were, is tendentious. It raises issues usually raised by confrontational academics and suggests remedies for what William M. Chace has called “the decline of the English Department” or what Harold Bloom has called “Groupthink” in “our obsolete academic institutions, whose long suicide since 1967 continues”. If Chace and Bloom are right about a decline in academic standards – evidence shows that they are at least right about a decline in numbers of English majors – then the fate of literary studies seems grim. Nevertheless, Chace and Bloom overlook the migration of literature professors into American law schools, a phenomenon yet to receive critical attention. Another aspect of this phenomenon is the migration of students from the humanities to professional schools. I personally have known many students who wished to go on to graduate school in the humanities but quite understandably viewed that route as impractical and went to law school instead. A positive result of this trend is that a substantial body of law students is open to the idea of law-and-literature and finds luminaries like George Anastaplo or Stanley Fish more interesting than other law professors. My final comments address the strange exodus of literary scholars into professional schools, which pay more money and arguably provide vaster audiences and readership, more generous funding opportunities, and reduced teaching loads. Perhaps more than other literary disciplines, save for cultural studies, Shakespeare studies has moved into the realm of interdisciplinarity, albeit without large contributions from scholars outside of literature departments. The law-and-literature field would have perished without the expertise of literature professors; likewise, Shakespeare studies, if it continues down the path of politics and cultural criticism, will perish without the expertise of economists, political scientists, and legal scholars, whose mostly non-Marxist perspectives, when pooled with the perspectives of literature professors, might fill out a space for interesting scholarship and redeem the interdisciplinary label. Information-sharing is especially crucial for literature scholars who, in order to examine the history of Shakespeare in American culture, have turned to practices and methods traditionally reserved for other disciplines.

The full text is not available from SSRN.

Home Sweet Home

I Bennett Capers, Hofstra University School of Law, has published Home Is Where the Crime Is in volume 109 (2011) of the Michigan Law Review. Here is the abstract.

There is a new vision of home that is beginning to gain ascendance, at least from the point of view of legal actors and doctrine in the criminal justice system. Under this vision, home is not always, or even usually, “sweet.” Under this new vision, the home is not a safe haven, inviolate and inviolable except for, perhaps, a burglar. Under this new vision, the home is a place of violence. And not violence perpetrated by intruders, but by co-habitants. The home, notionally a site of security, a place “safe” from outside intervention, now functions as a place that enables abuse, assault, and rape. It is the exemplary place of coercion. The home, in this re-vision, has metastasized into the scene of the crime. In short, home has become “where the crime is.”



What are we to make of this shift in how the law perceives the home, and how we perceive the home? What are the collateral consequences of this shift? These are the questions Jeannie Suk takes up in her provocative At Home in the Law. This Review assesses Suk’s claims critically, turns to some of the collateral effects of this shift that Suk elides, and switches lens to reveal a larger, more troubling picture.

Download the article from SSRN at the link.

Copying Across Cultures

Madhavi Sunder, University of California, Davis, School of Law, has published Bollywood/Hollywood at 12 Theoretical Inquiries in Law 179 (2011). Here is the abstract.

Free flow of culture is not always fair flow of culture. A recent spate of copyright suits by Hollywood against Bollywood accuses the latter of ruthlessly copying movie themes and scenes from America. But claims of cultural appropriation go far back, and travel in multiple directions. The revered American director, Steven Spielberg, has been accused of copying the idea for E.T. the Extra-Terrestrial from legendary Indian filmmaker Satyajit Ray’s 1962 script, The Alien. Disney’s The Lion King bears striking similarities to Osamu Tezuka’s Japanese anime series, Kimba the White Lion. Neither Ray nor Tezuka’s studio sued the American filmmakers and this Article is by no means an attempt to revive any particular legal case. Rather, this Article considers copyright’s role in promoting free cultural exchange, albeit on fair terms in a global marketplace of ideas marked by sharp differentials in power, wealth, and knowledge.

Download the article from SSRN at the link.

A Meditation on Comic Books, Their History, and Copyright Law

Keith Aoki, University of California, Davis, School of Law, has published Pictures within Pictures, in volume 36 of the Ohio Northern University Law Review (2010). Here is the abstract.

This is a meditation on the creative process, copyright law, and comic book history.

Download the article from SSRN at the link.

New Titles From Hart Publishing; Twenty Percent Discount For Readers Of This Blog!

Two new titles of interest from Hart Publishing:

Steve Greenfield, Guy Osborn, and Peter Robson, Film and the Law: The Cinema of Justice
Pub Date: Oct 2010; 9781841137254; Pbk; 392pp; £30 / €39 / US$30 / CDN$30

http://www.hartpub.co.uk/books/details.asp?ISBN=9781841137254

Paul Raffield, Shakespeare's Imaginary Constitution: Late Elizabethan Politics and the Theatre of Law

Pub Date: Oct 2010; 9781841139210; Hbk; 256pp; £50 / €65 / US$70 / CDN$70

http://www.hartpub.co.uk/books/details.asp?ISBN=9781841139210

Readers of the Law and Humanities Blog qualify for this DISCOUNT OFFER

Hart Publishing is delighted to offer these titles at 20% discount. To receive the discount please quote reference ‘LHBLOG’ when placing your order. If you are ordering online then please quote the reference in the special instructions field. The discount will not show up on your order confirmation but will be applied when your order is processed. All enquires should be directed to Hart Publishing Tel: 01865 517530; E-mail: mail@hartpub.co.uk; Website: http://www.hartpub.co.uk/

Law and the Multiverse Scores With New York Times

The blog Law and the Multiverse is featured in the New York Times.

Categorizing the Informant

Michael Rich, Elon University School of Law, has published A Snitch, Not a Hero: Philosophical Lessons of Loyalty and Disloyalty in the World of Criminal Informants, as Elon University Law Legal Studies Research Paper No. 2010-11. Here is the abstract.

Without informants, policing as we know it would grind to a halt. In the arenas of drug enforcement and the battle against organized crime, the majority of prosecutions hinge on confidential informants, and informants are increasingly central in white collar crime prosecutions and anti-terrorism investigations. Yet society, to put it bluntly, hates informants. The epithets used to describe them – “snitch,” “rat,” “weasel” – suggest the reason: the informant, by assisting the police, is guilty of betrayal. But identifying the reason for society’s disdain raises more questions than it answers. For instance, are all informants disloyal, or are only some? Are there governing principles that explain which informants are deemed to be disloyal? To whom are informants disloyal? What import does informant disloyalty have beyond the social stigma that informants bear? And these questions matter because betrayal, in the words of George Fletcher, is “one of the basic sins of our civilization.” Yet, they have largely escaped the attention of legal scholars.



This Article remedies this oversight first by discussing the role of informants through the lens of the observations that philosophers have made about loyalty and disloyalty. The discussion reveals that loyalty and disloyalty are social constructs of normative expectations arising out of special relationships between individuals and other individuals or groups. And when an individual breaches these normative expectations, she commits disloyalty or betrayal. The Article applies these observations about loyalty and disloyalty to three informant situations. The first is the “typical” case of an accomplice-informant who assists police in apprehending and prosecuting her partners in crime. The second is that of communities with particularized norms against cooperating with the police, as exemplified by the “Stop Snitching” movement that has made significant headway in high-crime communities. The third situation is that of informants in “mainstream” society. The loyalty analysis of these three situations reveals interesting insights into why police have trouble obtaining civilian cooperation in high-crime communities and the limits of civilian identification with police objective in mainstream society. Finally, the Article considers these insights in light of existing scholarship about the relationship between civilian perceptions of police and willingness to cooperate. This consideration leads to a handful of policy proposals to enhance civilian cooperation with law enforcement and ultimately to the recognition that some level of reticence to cooperate with police, particularly in marginalized communities, is both inevitable and desirable.

Download the paper from SSRN at the link.

Representing Justice: A New Book on the Theme

New book on Representing Justice by Judith Resnick and Dennis Curtis, published by Yale University Press. Pricey but beautiful. Review here from the New York Times. Website here.

Court Citation of Foreign Legal Opinions

Martin Gelter, Fordham University School of Law and the European Corporate Governance Institute, has published Language, Legal Origins, and Culture before the Courts: Cross‐Citations between Supreme Courts in Europe as Fordham Law Legal Studies Research Paper No. 1719183. Here is the abstract.

Should courts consider cases from other jurisdictions? The use of foreign law precedent has sparked considerable debate in the United States, and this question is also controversially discussed in Europe. In this paper and within the larger research project from which it has developed, we study the dialogue between different European supreme courts quantitatively. Using legal databases in Austria, Belgium, England and Wales, France, Germany, Ireland, Italy, the Netherlands, Spain, and Switzerland, we have hand-collected a dataset of transnational citations between the highest courts of these countries, in total searching 636,172 decisions decided between 2000 and 2007. In the present paper we show that citation of foreign law by supreme courts is not an isolated phenomenon in Europe, but happens on a regular basis. We found 1,426 instances in which these courts have cited the supreme courts of the other nine countries. The majority (1,077) of these citations have been made for purely comparative reasons. We also undertook regression analysis in order to understand the differences between the cross-citations. Whether such citations take place and in what quantity depends on the particular legal culture and its relationship to others. Austria and Ireland, which stand in an asymmetric relationship with Germany and England respectively, seem to be particularly receptive to foreign influence on their legal systems. But even controlling for these outliers, we have been able to identify that the population of the cited country and a low level of corruption, native languages and language skills, legal origins and families, and cultural and political factors all matter for which courts are likely to be cited. More specifically, knowledge of the language of the cited court appears to be a more important factor driving cross-citations than legal traditions, culture or politics. Thus, to facilitate a transnational market of legal ideas, it can be suggested that courts should strive to make their decisions available in languages that possible readers understand.

Download the paper from SSRN at the link.

Law and the Superwhatever

Check out the new blog Law and the Multiverse, all about supervillains, superheroes and law. Shades of Harvey Birdman, Attorney at Law.

Quiz For the Day

Bored? Tired of grading? Take this Fictional Lawyers Quiz.

New Books Of Interest

Joe B. Fulton, The Reconstruction of Mark Twain: How a Confederate Bushwacker Became the Lincoln of Our Literature (Louisiana State University Press, 2010).

Gregory J. Hampton, Changing Bodies in the Fiction of Octavia Butler: Slaves, Aliens, Vampires (Lexington Books, 2010).

Tyrone Kirchengast, The Criminal Trial in Law and Discourse (Palgrave Macmillan, 2010).

Richard Terry, The Plagiarism Allegation in English Literature From Butler to Sterne (Palgrave Macmillan, 2010).

Taking "Harry Potter" Seriously

A book by Shira Wolosky on the meaning of Harry Potter. From the Chronicle of Higher Education.

Empathy In "To Kill a Mockingbird"

Katie Rose Guest Pryal, University of North Carolina, Chapel Hill, has published Walking in Another’s Skin: Failure of Empathy in to Kill a Mockingbird , in Harper Lee's To Kill a Mockingbird: New Essays, Chapter 12 (Michael J. Meyer ed., The Scarecrow Press, UK, 2010). Here is the abstract.

Empathy - how it is discussed and deployed by both the characters in TKAM and by the author, Lee - is a useful lens to view the depictions of racial injustice in the novel, because empathy is the moral fulcrum on which the narrative turns. In this essay, I argue that To Kill a Mockingbird fails to aptly demonstrate the practice of cross-racial empathy. As a consequence, readers cannot empathize with the (largely silent) black characters of the novel. In order to examine the concept of empathy, I have developed a critical framework derived from rhetorician Kenneth Burke's theory of identification and then used this framework to examine some ways in which empathy manifests itself in our legal system, manifestations that help reveal the failings of TKAM.

Download the essay from SSRN at the link.

Brundage On the Image of Lawyers In Medieval Literature

I ran across this piece today; it dates from 2002, so some of you may be familiar with it already. I think it's extremely interesting. It's by James A. Brundage, the distinguished medievalist and cultural historian. In this piece he addresses medieval attitudes toward lawyers, tracing influences back to the Romans. He says in part,

I propose to examine in this paper the faults that medieval writers found with the lawyers they encountered during the high Middle Ages (by which I mean the two centuries between about 1150 and 1350) and to venture some suggestions about the reasons for them.

Before I do that, however, I shall lay the foundation for my remarks by saying something about the treatment of the legal profession in classical Roman literature. This seems appropriate for two reasons: first, medieval lawyers drew much of their law from Roman sources. In the process they modeled many...of their ideas about the ways in which lawyers ought to behave upon the prescriptions for professional conduct that they found in those sources. Second, medieval writers adopted many...of the criticisms of the legal profession that they found in classical Latin literary sources, to which they added new ones of their own.

James A. Brundage, Vultures, Whores, and Hypocrites: Images of Lawyers in Medieval Literature, 1 Roman Legal Tradition 56 (2002).  Highly recommended.

The Scottish Enlightment's Influence on the Drafting of Article III

James E. Pfander and Daniel D. Birk, both of Northwestern University School of Law, are publishing Article III and the Scottish Enlightenment, 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.

Law and Culture In Israel

Zvi H. Triger, The College of Management Academic Studies (COMAS) School of Law, has published Law's Culture: Reflections on Menachem Mautner's Books on Law and Culture (Hebrew), at 32 Tel Aviv University Law Review 481 (2010). Here is the abstract.

This is a review essay on law and culture in Israel, which takes Menachem Mautner's two recently published books as its departure point for broad analysis of the tensions that characterize Israeli discourse on these issues.

Download the essay from SSRN at the link.

Defamation and Humor

Laura E. Little, Temple University School of Law, is publishing Just a Joke: Defamatory Humor and Incongruity's Promise, in volume 21 of the Southern California Interdisciplinary Law Journal (2011).  Here is the abstract.

Humor often arises as a defense in defamation actions, with defendants claiming that their challenged communication was "just a joke." Given the long established tie between defamation and First Amendment doctrines, United States courts evaluate the defense in light of free speech protections as well as reputational interests incorporated in the elements of the defamation tort. In grappling with humor, courts usually invoke First Amendment doctrine’s familiar distinction between fact and opinion. If a putative joke is sorted down the "opinion" chute, then the humorist faces no civil liability. If, on the other hand, the putative joke suggests false facts unfavorable to the plaintiff, the defendant may face liability. Useful as an analytical starting point, this fact/opinion dichotomy does not adequately integrate all the values and concerns that come into play where humor and defamation law collide.



Humor is complex, capable of both great good and enormous mischief. The challenge whether to provide legal protection for humorous communications implicates the same value clashes between freedom of expression and protection of reputational interests that appear in other defamation contexts. Yet humor’s potential for individual and collective benefit (as well as its capacity to cut deep wounds) suggests that courts should tailor analysis specifically to humor’s unique qualities. Happily, assistance comes from centuries of interdisciplinary scholarship dedicated to understanding humor. In particular, humor scholarship’s core concept - incongruity (the juxtaposition of two or more unlikely ideas) - helps to calibrate an optimal balance of First Amendment concerns and the values of human dignity, property, and honor in defamatory humor cases.



Assistance for United States courts also comes from an unlikely source - Australia. Australian cultural emphasis on humor and plain speaking as well as its lack of a formal First Amendment enables Australian case law to provide meaningful guidance both affirmatively and negatively, as a foil for identifying what analysis is not well suited to United States common law and constitutional traditions.

Download the article from SSRN at the link.

Call For Papers

From McGill University's IPLAI

International Conference on Arts, Ideas, and the Baroque


Hosted by the Institute for the Public Life of Arts and Ideas, McGill University

in collaboration with the Montréal Baroque Festival

24-26 June 2011



2011 Theme: Deadly Sins



CALL FOR PAPERS

This conference seeks to examine the ‘baroque’ in the early modern world as well as its echoes and resonances across time. Defined differently by different academic traditions, the notion of the baroque remains a point of reference as well as contention, and a signifier of cultural legacy as well as innovation – as in the notion of the ‘neo-baroque’. We propose to investigate the rich artefacts, representations, and influence of the era—particularly around the theme of Deadly Sins (also the theme of the 2011 Montréal Baroque Festival to be held in conjunction with this conference). We invite papers which address interdisciplinary scholarship and make new connections between research fields. Proposals from scholars working in all disciplines might address, but are not limited to, the following fields:





Musicology and Music Performance

Law and Legal History

Social and Cultural History

Literature

Architecture and Design

Theatre and Performance

Art History

Religious Studies

History of Science and Medicine

Philosophy





Proposals for complete panels as well as for individual papers in English or French are welcome. Researchers are invited to submit abstracts of no more than 250 words, and brief (2 page) cvs to: baroque@mcgill.ca. Deadline for submissions: 5 February 2011.

IPLAI is a new undertaking by McGill University’s Faculties of Arts, Education, Law, Management and Religious Studies and the Schools of Architecture and Music. Its goals are to foster collaborative, interdisciplinary scholarship and teaching in the humanities, to reinvigorate the place of humanities scholarship in public discourse, and to examine the life of ideas across time.

The Montreal Baroque Festival is a unique festival celebrating the creativity, expressiveness and inspiration of music-making in the seventeenth and eighteenth centuries. The chapels, crypts, chateaux, cafes, cellars, attics, gardens and streets of Old Montreal are brought to life with operas, oratorios, recitals, improvisations and jam sessions performed by an international roster of brilliant musicians.



Conference Registration Fee: $60 (faculty); $25 (students)

Online registration will open March 2011

http://www.mcgill.ca/iplai/
http://www.montrealbaroque.com

Making"The Wire" Meaningful

I. Bennett Capers, Hofstra University School of Law, is publishing Crime, Legitimacy, Our Criminal Network, and the Wire in volume 8 of the Ohio State Journal of Criminal Law (2011).Here is the abstract.

It perhaps comes as no surprise that, at a gathering of four criminal law professors over drinks and dinner, the subject would turn to the HBO series The Wire. The four of us - Susan Bandes, Jeff Fagan, David Alan Sklansky, and myself - were part of a larger group of about twenty or so criminal professors invited to participate in the University of Chicago’s Criminal Justice Roundtable, and after a full day of discussing each other’s scholarship, we were eager to discuss something else. So we raved about The Wire. Then we lamented the fact that, to our knowledge, there had never been a law conference devoted to The Wire, or even a symposium issue in a law journal. The series certainly raises enough criminal law and criminal procedure questions to warrant such a project. But even more importantly, The Wire does something else. I once argued that “law and order” shows can have a type of "de-shadowing" effect. There is the justice administered by the courts. And there is the justice that the courts imagine they are regulating. Law and order shows, especially the ones that give the illusion of being police procedurals, are uniquely positioned to critique this justice. Law and order shows, at their best, bring out of the shadows the justice that actually exists. No show does this better than The Wire.



That night, drinks in hand, the four of us agreed to put together a panel proposal to discuss The Wire at a Law and Society Conference. The four of us became five with the addition of my colleague Alafair Burke. And Burke, as a professor and a prolific mystery writer with connections we could only dream about, in turn brought in her friend David Simon, the creator of The Wire. What followed was one of the most well-attended panels at Law and Society this past year. What followed too was a mini-symposium in the Ohio State Journal of Criminal Law, and this Essay, which examines The Wire to explore issues of perceptual legitimacy and crime rates, how the Rules of Evidence often frustrate police brutality cases, and the challenge of being a criminal law and procedure professor after watching The Wire.

Download the article from SSRN at the link.

Reflections On "The Wire"

Alafair S. Burke, Hofstra University School of Law, is publishing I Got the Shotgun: Reflections on The Wire, Prosecutors and Omar Little. in the Ohio State Journal of Criminal Law (forthcoming). Here is the abstract.

The Wire is a show about institutions, the people trapped inside of them, and a society made static by their inaction, indifference, and ineptitude. Whether the series was exploring the drug trade, police departments, city hall, unions, or public schools, the individual actors within those systems were depicted as having little control over either the institutions or their individual fates within them. As a result, the constituencies supposedly served by those institutions continually got the shaft.



To say that The Wire is about the tolls of unmitigated capitalism and inflexible bureaucracies is not to say, however, that the show is silent on, or indifferent to, the criminal justice system that encompasses its main characters. I became especially intrigued by an episode in the first season in which police and prosecutors rely on the testimony of Omar Little in a murder trial, despite doubts about Omar’s first-hand knowledge of the crime. This essay is a reflection on the depiction of law enforcement in The Wire, both generally and with respect to the single scene that first made me a Wire addict.

Download the article from SSRN at the link.

Science Fiction and the Detective Novel

From the New Scientist, April 30, 2010: The ten greatest science fiction detective novels. Among them: Philip Kerr's A Philosophical Investigation, Kristine Kathryn Rusch's The Retrieval Artist novels (don't they count as more than one?), and Isaac Asimov's The Caves of Steel. What are your favorites?

Literary Appearances

Meet a new police detective, Scott Cowen of the Brick Township, NJ, police force. He's a character in James Patterson's newest novel, Cross-Fire. If he reminds you of Scott Cowen, President of Tulane University, don't urge President Cowen to sue for defamation, or false light, or infringement of his right of publicity, or any of that good stuff. Dr. Cowen paid for the privilege of appearing in the book.  A great way to raise money for your school.

Food Wars

Ernesto Hernandez Lopez, Chapman University School of Law, has published LA’s Taco Truck War: How Law Cooks Food Culture Contests as Chapman University Law Research Paper No. 10-29. Here is the abstract.

This paper examines the Los Angeles “Taco Truck War” (2008-9), when the city of Los Angeles and LA county used parking regulations to restrict “loncheros,” i.e. “taco trucks.” It describes the legal doctrine used by courts to invalidate these local restrictions. The California Vehicle code makes local food truck regulations illegal. Decades of court decisions affirm this. The paper sheds light, legal and cultural, on food truck debates, which will surely expand nationwide. It examines: the cultural and business arguments for food truck regulations; food’s role in migrant, community, and national identities; Mexican food’s influence in California culture; and recent trends in food trucks such as Koggi BBQ.

Download the paper from SSRN at the link.

The Origins of Legal Language

Peter Tiersma, Loyola Law School (Los Angeles), has published The Origins of Legal Language in the Oxford Handbook on Language and Law (L. Solan and P. Tiersma, eds., 2010). Here is the abstract.

This paper examines the origins of legal language. It begins with a discussion of language in the civil law system, which originated in Rome, was refined in Byzantium, rediscovered in Italy, codified in Prussia and France, and ultimately spread throughout most of Europe and, via colonialism, to many other parts of the world. The common law, which developed in England, was heavily influenced by Anglo-Saxon invaders, Latin-speaking missionaries, and French-speaking Normans. Its language also took root in much of the world via the British empire. Finally, we discuss what might be called mixed legal systems, and we conclude by speculating on the possible effects of globalization on the languages of law.

Download the chapter from SSRN at the link.

Criminal Law and "The Wire"

Susan A. Bandes, DePaul University College of Law, and Florida State University College of Law, has published And All the Pieces Matter: Thoughts on The Wire and the Criminal Justice System, in volume 8 of the Ohio State Journal of Criminal Law (2011). Here is the abstract.

The standard police procedural, even including great dramas like NYPD Blue and Hill Street Blues, adheres to time-honored narrative conventions. It focuses on good if sometimes imperfect cops trying to find the real bad guys - the perpetrators - and bring them to justice. A crime had ruptured the social fabric, and at the end of the episode, guilt is determined and things are put to right. The standard procedural is concerned mainly with individual fault and heroism. It does not raise disquieting questions about the criminal justice system, the legal system, or the social and political arrangements that lead to a permanent underclass. There are eight million stories in the Naked City, and in the police procedural, every one of them stands on its own.



The Wire is a different kind of television. It aims not to reassure but to unsettle, or as David Simon once put it, "to pick a fight." Unlike the standard police procedural, which resolves a discrete problem every week, The Wire keeps widening its lens to reveal the context in which crime and policing take place. Although the show begins as a description of an actual wiretap, the series soon turns out to be about a series of interlocking systems, wired for dysfunction.



The Wire is deeply concerned with institutions, how they constrain the shape of individual lives, and how they perpetuate themselves, often at the expense of achieving their legitimate goals. However, although the show’s most cherished subject is the institutional roadblocks to good policing, The Wire defies the standard paradigm in this regard as well. It is not one of those cop shows that reflexively portray constitutional rights as annoying hindrances to law enforcement. Other shows tell us that cops need free rein; that we ought to trust their instincts and keep the government and the Constitution off their backs. This show vividly demonstrates that those instincts are sometimes misguided or self protective and that the right kinds of limits can play an important role in good police work.

Download the article from SSRN at the link.


This essay is an exploration and appreciation of The Wire’s remarkable portrait of the criminal justice system, with particular attention to its insights about policing and criminal procedure. It uses the chess lesson scene from Season One, “The King Stay the King,” as a starting point.

The Meaning of Words

Philip A. Rubin, Duke University Law School, has published War of the Words: How Courts Can Use Dictionaries in Accordance with Textualist Principles, at 60 Duke Law Journal 167 (2010). Here is the abstract.

Dictionaries have an aura of authority about them--words mean what the dictionary says they mean. It therefore seems only sensible that courts seeking the plain meaning of language would look to dictionaries to find it. Yet to employ dictionaries as objective sources of meaning is to use them in a manner inconsistent with their creation and purpose. Previous scholarship has identified the Supreme Court’s increasing reliance on dictionaries in construing statutes and constitutional provisions, and several articles have discussed different inherent problems with this practice. This Note builds upon that scholarship by bringing together the problems identified in prior articles, by identifying additional problems, and by proposing a set of best practices for courts seeking to use dictionaries in a manner consistent with textualist principles. Unless a principled approach is adopted, judges invoking dictionaries in textualist analysis are open to criticism for, at best, using dictionaries incorrectly - and, at worst, using them to reach their preferred outcomes.

Download the note from SSRN at the link.

Indiana University Center for Law, Society & Culture Accepting Applications for Jerome Hall Postdoctoral Fellowship

The Center for Law, Society, and Culture at the Indiana University Maurer School of Law—Bloomington will appoint up to three Jerome Hall Postdoctoral Fellows for the 2011-2012 academic year. We invite applications from pre-tenure scholars, recently awarded PhDs, and those with equivalent professional degrees to conduct research at Indiana University and participate in the activities of the Center, which include an annual symposium, a colloquia series, and regular workshop series.



Scholars of law, the humanities, or social sciences working in the field of sociolegal studies 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. The Center encourages applications from scholars focusing on global or transnational law and society research projects. Fellows will devote a full academic year to research and writing in furtherance of a major scholarly project. The stipend will be $25,000 plus a research allowance, health insurance, other benefits, and workspace at the Maurer School of Law. Fellows are expected to be in full-time residence in Bloomington in order to take advantage of the rich intellectual life of the Center, the Maurer School of Law, and Indiana University.



A complete application consists of: (1) a research proposal (up to 10 pages); (2) curriculum vitae (with address and complete contact information); and (3) three letters of recommendation (must be sent separately)



Applications should be sent to:

Jerome Hall Postdoctoral Fellowship Program

Center for Law, Society, and Culture

Indiana University Maurer School of Law—Bloomington

211 S. Indiana Avenue

Bloomington, IN 47405



Completed applications must be received by Jan. 3, 2011, in order to ensure full consideration. The award will be announced in mid March 2011.



For more information, contact Hallpd@indiana.edu



Additional information about the Indiana University Center for Law, Society & Culture, and the Jerome Hall Postdoctoral Fellowship can be found at:

http://law.indiana.edu/centers/lawsociety/postdoctoral-fellowship.shtml

Cloning and Talmudic Law

Barbara P. Billauer, Foundation for Law and Science Centers, Inc.; Institute of World Politics, has published Human Reproductive Cloning: The Intersection of Kaballa, the Bible and Biology - Parable, Exegesis and Modern Science

Under traditional Jewish Law (halacha), assessment of human reproductive cloning (HRC) has been formulated along four lines of inquiry, which I discussed in Part I of this paper. There, I analyzed five relevant doctrines of Talmudic Law, concluding that HRC fails to fulfill the obligation ‘to be fruitful and multiply’ and should be strictly prohibited. In part II, I reviewed the topic from an exigetical Biblical and Kabbalistic perspective, beginning with exploring comments of the Ramban (Nachmanides) which suggest Kabbalistic insights very much in keeping with current biology. I expand on the interrelationship of the reproductive faculties of an organism and its soul by examining the development of the spiritual states of plant, animal and human and noting the commensurate evolution with its reproductive facilities. Speculating that the reproductive mechanism of each species is indelibly related to its soul-state, I suggest that interfering with human sexual reproduction by HRC has the same effect the Ramban argues is the result of Kilayim (interbreeding), i.e., wrecking havoc with the Universe.



In this Part III, I postulate a biologic explanation for warnings found in the Golemic Literature and suggest that these allude to the importance of maintaining human genetic diversity through sexual reproduction. The conclusions I reached after evaluating the propriety of HRC under a Kabbalistic/metaphysical index comports with those I reached using a traditional legal /halachic inquiry in Part I. Thus, both systems arrive at the conclusion that HRC is in violation of the divine and natural order and constitute a distinct biological threat to the survival of the human species, a conclusions in accord with current scientific thinking.

Download the paper from SSRN at the link.

Portia's View of Justice in "The Merchant of Venice"

Roberta Linciano, University of Salento, has published "'Is that the law?': Portia's Mockery of Justice in The Merchant of Venice," in the Italian Society for Law and Literature (January 2010). Here is the abstract.

In this paper I examine the role performed by the disguised lawyer Portia during the trial Shylock vs. Antonio in Shakespeare’s The Merchant of Venice. With reference to the social, political and economic background of the Elizabethan age, I will explore Portia’s conception of justice, trying to assess if she acts as a loyal and equitable judge or as a vile impostor and investigating to what extent her conduct can be regarded as a model by modern lawyers or as a mere play upon the words.

While the paper should be available for download via SSRN, I could not get the download to work.

Graduate Student Stipends Available for ASLCH Conference Next Spring

Reminder




The Association for the Study of Law, Culture, and the Humanities will award up to eight $200 travel stipends to graduate students who plan to present work at the 2011 ASLCH Conference, March 11-12, in Las Vegas, Nevada. In awarding these stipends, the Committee will take into consideration both the merit of the proposed paper and the applicant's proximity to the conference site. Graduate students wishing to apply for a travel stipend should submit the following:

• contact information (including both home and institution addresses)

• a Curriculum Vitae (CV)

• a proposed paper title and abstract

• information about the session to which the proposal is attached, if any

• information about other funds the applicant will likely receive to assist in conference attendance, if any

Please send applications for the stipend electronically to Professor Paul A. Passavant, Department of Political Science, Hobart and William Smith Colleges, Passavant@hws.edu by November 15, 2010.

Stipends will be awarded no later than January 14, 2011 in order to allow recipients to make their travel arrangements.





Paul A. Passavant

Associate Professor

Department of Political Science

Hobart and William Smith Colleges

300 Pulteney St.

Geneva, NY 14456

USA

Sherlock Holmes and the Evil Heir

Stephen R. Alton, Texas Wesleyan University School of Law, has published The Game is Afoot!: The Significance of Gratuitous Transfers in the Sherlock Holmes Canon. Here is the abstract.

This article presents a recently discovered and previously unpublished manuscript written by John H. Watson, M.D., and annotated by Professor Stephen Alton. Dr. Watson’s manuscript records an extended conversation that took place between the good doctor and his great friend, the renowned consulting detective Mr. Sherlock Holmes, regarding issues of gratuitous transfers of property – issues involving inheritances, wills, and trusts – that have arisen in some of the great cases solved by Mr. Holmes. This felicitous discovery confirms something that Professor Alton has long known: these gratuitous transfer issues permeate many of these adventures. Often, the action in the case occurs because of the desire of the wrong-doer to come into an inheritance, a bequest, or the present possession of an estate in land more quickly – perhaps by dispatching the intervening heir, beneficiary, or life tenant. Professor Alton has annotated this manuscript, providing extensive analysis of these issues and citations to relevant, contemporary authority in his footnotes.

Download the paper from SSRN at the link.

Law, Neuroscience, and Magic

A new book on that very interesting new topic, neuroscience and magic. Stephen Macknik and Susana Martinez-Conde have published Sleights of Mind (Henry Holt, 2010)  about what happens in our brains when our eyes deceive eyes. Magicians and con men (and women) have known about this for centuries, but scientists and lawyers are just now beginning to take note. for more check out an article from The Scientist, here and the Law and Magic Blog here, here, here, and here.

Kafka, Foucault, and Writing as Resistance

Nicholas Dungey has published Franz Kafka and Michele Foucault: Writing as Resistance as a Western Political Science Association 2010 Annual Meeting Paper. Here is the abstract.

One of the most pressing challenges to Foucault's notion of the self and disciplinary power concerns the issue of resistance. If, as Foucault argues, the self is wholly constituted by disciplinary power and practices, then what possibility exists for resistance to such power and practices? While this is a difficult challenge, Foucault insists that resistance is part and parcel with the happening of disciplinary power. In order to illuminate Foucault's observations about resistance I turn to Kafka' letters and diaries. I contend that Kafka wrote as a way of resisting the influence of disciplinary power and practices. Kafka wrote in order to do battle with the forces he found himself constituted by, and in the process, redefine the field of battle, and re-describe the terms and discourse in which the battle was fought. Kafka wrote, and struggled to write, as a way of resisting the domination of disciplinary power operating on him. I contend that Kafka might have been aware, like Foucault, that there was no final victory, no heroic escape or triumph from the battle. Therefore, Kafka wrote not to overcome the battle, but rather as the only legitimate response to the forces of 'isciplinary (sic) power. Writing was Kafka's way of struggling valiantly.

The full text is not available on SSRN.

Telling Stories About the Founders

Tom Donnelly, Harvard Law School, has published Our Forgotten Founders: Reconstruction, Public Education, and Constitutional Heroism, at 58 Cleveland State Law Review 115 (2010). Here is the abstract.

This Article examines a set of constitutional stories that has not been the subject of focused study by legal scholars — the stories we tell our schoolchildren about the Founding and Reconstruction. These stories offer new clues about the background assumptions that elite lawyers, political leaders, and the wider public bring to bear when they consider the meaning of the Constitution. Since the early twentieth century, our leading high school textbooks have tended to praise the Founding generation and canonize certain Founding Fathers, while, at the same time, largely ignoring Reconstruction’s key players and underemphasizing the constitutional revolution these “Forgotten Founders” envisioned (and began to wage). As a result, generations of students have been left with a relatively pristine view of the Founding, while receiving (at best) a “warts-and-all” account of Reconstruction. These disparate accounts (presented for decades in our classrooms) have helped to construct a constitutional culture that reveres the Founding generation, but gives short shrift to their Reconstruction counterparts.

Download the article from SSRN at the link.

Adam Smith and the Judiciary

Robin Paul Malloy, Syracuse University College of Law, has published Adam Smith in the Courts of the United States, at 56 Loyola Law Review 33 (2010). Here is the abstract.

Be it on topics of property, contract, commerce, trade, tax, legal history, or other matters, jurisprudence in the United States often invokes economic thinking in providing a rationale for legal outcomes. Consequently, I wondered how often the appeal to economic thinking in the courts included a reference to Adam Smith, the founder of modern economics. This essay traces the citations to Adam Smith in the judicial opinions of the Federal Courts starting with the first two cases to cite Smith in 1796; 214 years ago. The essay provides a brief contextual discussion about Smith and the way in which he has been cited over the years. This is followed by a report on the full set of citations to Adam Smith in the case opinions of the Federal Courts and in the legal briefs filed in those cases.



Between the years 1796 and 2009, Adam Smith is directly referenced in 162 cases, and in legal briefs filed in 213 cases. Over time Smith is cited for different purposes. He is cited in case opinions dealing with a range of topics including: tax, trade, commerce, labor, antitrust, and private property. The way in which Smith is referenced over time also changes. In general, references to Smith shift over time as he goes from being an authoritative reference on matters of taxation to being a mere iconic punctuation point in the arguments of those seeking to promote free markets and laissez-faire.



The article offers quotations from case opinions and establishes a record of Adam Smith’s appearances in the Courts of the United States. Interestingly, 70% of the citations to Smith occur since 1970. Hopefully, the article will be a fun piece to read no matter what one’s specialized research or teaching area may be.

Download the article from SSRN at the link.