Metaphor in Law

Linda Berger, University of Nevada, Las Vegas, School of Law, is publishing Metaphor in Law as Poetic and Propositional Language in The European Legacy: Towards New Paradigms, Journal of the International Society for the study of European Ideas (ISSEI). Here is the abstract.

My argument in this essay is that although lawyers routinely use and abuse metaphor as propositional language, they mostly neglect the use of metaphor as poetic language. Poetic metaphor openly invites you to view a topic or a target from a new angle by setting it against or alongside a light source; in this way, it prompts second looks and encourages insights. Propositional metaphor, by comparison, appears designed to persuade you to view the target or the topic under discussion as something you already know about because of your experience with the source. As a result, you are better able to understand or to “handle” the topic, but you discover little that is new. The essay was presented as part of a panel discussion on Law and Language at the 2012 conference of the International Society for the Study of European Ideas.

Download the paper from SSRN at the link. 

Remembering a Divided Nation

Currently at the Library of Congress, an exhibit entitled "The Civil War In America." The New York Times reviews it here.

Funny Politicians

From the Dirksen Congressional Center: Serious Consequences of Congress as a Target For Humorists.

New Star Trek Film Folks Will Unveil App To Encourage Faithful Fans

Love Star Trek (particularly the reboot of the franchise)? Love your smart phone? Now you can indulge your affection for both with a Star Trek Into the Darkness app, which will be available, according to the Hollywood Reporter, at the end of this month. Says THR's Aaron Couch,

A smartphone app for fans anticipating J.J. Abrams’ upcoming Trek sequel will launch at the end of this month and will allow users to go on Starfleet-esque missions by inputting audio-visual elements into their phones....For example, a fan could watch the Into Darkness trailer on TV, and the app's audio tool would hear it and might reward its user with points toward unlocking a new Star Trek image or wallpaper. The app's geolocation tool might reward fans for going to a movie theater, while those who snap a photo of an Into Darkness poster could earn points toward unlocking a video.

The ultimate prize? A trip to see the premiere of the film. Sounds just a little interactively high tech-ily obsessive to me, but then only about ten people even have my cell phone number. 

Indigenous Sovereignty: A Literature Review

Jennifer L. Archer, Archer Law Corporation, has published Sovereignty as a Social Construct: A Literature Review of Indigenous Peoples’ Perspectives.

The concept of sovereignty is both culturally and historically dependent. Sovereignty evolved within the Western legal tradition as a tool to legitimize imperial conquest over Indigenous peoples, territories and resources. Indigenous peoples, as non-state actors in the international community of sovereigns, have found themselves defined by this narrow and often-violent conception of power, which, at its heart, is contrary to Indigenous peoples’ values and epistemology. This has made it difficult for Indigenous peoples to engage or assert Western sovereignty without also experiencing a form of cultural and epistemological assimilation. An understanding and respect for the values that form the basis of Indigenous sovereignty can ultimately allow for the possibility of genuine social and legal reconciliation within the international legal system.

This literature review allows current narratives regarding Indigenous sovereignty to provide an emerging counterpoint to the dominant legal discourse in order to demonstrate that sovereignty is ultimately a man-made construct. Once we acknowledge sovereignty as a social construct, we can undertake to (re)construct new laws in a manner that no longer legitimizes the domination of imperialist values over Indigenous values.

Download the paper from SSRN at the link. 

Traditional Property Law and Indigenous Culture

Susan Elizabeth Farran, Northumbria University & University of the South Pacific, has published The ‘Unnatural’ Legal Framing of Traditional Knowledge and Forms of Cultural Expression. Here is the abstract.

The consequences of social and economic development in Pacific Island States are far reaching and on a number of levels illustrate the head-on collision of endogamous and exogamous forces. This is particularly evident in the ways in which manifestations of cultural property and traditional knowledge are harnessed and regulated. Laws inspired by western liberal thinking and capitalist economies see intellectual effort as giving rise to property rights and their related remedies, which are premised on individualism, exclusion and the commodity value of knowledge and creativity and its physical manifestation. Traditional, indigenous perceptions are however different. While knowledge may be power it is not always exclusive, individual or commercial. Cultural property creates networks of exchange and reflects continuums between the past and the present, between people and generations, and people and places. Increasingly there is pressure internally and externally to exploit and use cultural property and traditional knowledge for development objectives. Linked to this is a real or perceived need to adopt or incorporate a range of legal measures. Many of these are reflections of the colonial past of Pacific islands and an illustration of the neo-colonial present. There are however some attempts to moderate this onslaught and to take steps to shape the regulatory framework in a way that bridges the traditional and the modern.
This paper considers the challenges facing Pacific island states seeking to articulate laws which meet the demands of modernity and satisfy the values of tradition. It looks in particular at the problems posed by unfamiliar legal concepts and the consequences of trying to bring traditional knowledge and cultural property within the framework of laws originating from very different cultural and normative backgrounds and concludes with a critical assessment of the contemporary legal picture.

Download the paper from SSRN at the link. 

British Trials In the Eighteenth and Nineteenth Centuries

A new publication of interest:

Crime, Courtrooms and the Public Sphere in Britain, 1700-1850, Edited by David Lemmings, University of Adelaide, Australia, Ashgate, December 2012.  Via the blog ESCLH: European Society for Comparative Legal History.

More here at the Ashgate website.

Mapping the March of Same-Sex Marriage and Relationships

Peter Nicolas, University of Washington School of Law, and Mike Strong (no affiliation given), have published The Geography of Love: Same-Sex Marriage & Relationship Recognition in America (The Story in Maps) Third Edition (2013) as a University of Washington School of Law Research Paper. Here is the abstract.

There is no question that the most prominent gay rights issue in the United States today is the right to marry. Yet accurate, objective information about same-sex marriage and relationship recognition in the United States is difficult to come by. In this book, Seattle-based authors Peter Nicolas & Mike Strong combine their respective training in law and geography to depict the history and current state of marriage and relationship recognition rights for same-sex couples in the United States in words...and in maps.
This publication begins with a detailed history of efforts to achieve marriage rights and other forms of relationship recognition (such as domestic partnerships and civil unions) for gay and lesbian Americans, from the first lawsuit filed in 1970 in Minnesota to the new marriage laws approved by voters in November, 2012 — and just about everything (judicial and legislative) in between.
Next, it provides detailed information on relationship recognition in the United States, including: which states permit same-sex couples to marry or to enter into other types of legal unions; the rules for entering into or terminating such relationships; a comparison of the rights that each state provides to same-sex couples; the extent to which same-sex relationships entered into in one state are recognized by other states; and which cities and counties have domestic partnership registries and equal benefits ordinances.
That is followed by a look at efforts to ban same-sex marriage at the ballot box, including: selected vote details by state and county; a closer look at where support for such efforts was weakest and strongest; and a comparison of the processes for amending state constitutions across the United States.
For those same-sex couples interested in getting married in one of the jurisdictions that permits same-sex couples to marry, the book features a table that provides detailed information about the prerequisites for getting married, including: the marriage license fee; minimum age and blood test requirements; whether non-residents are permitted to marry; and the waiting period, if any, between applying for a license and getting married.
The third edition is completely up-to-date, and provides extensive coverage of the votes in November 2012 legalizing same-sex marriage in Maine, Maryland, and Washington.

Download the paper from SSRN at the link. 

Women's History, Law, Politics, and Abortion Rhetoric

Tracy A. Thomas, University of Akron School of Law, has published Misappropriating Women's History in the Law and Politics of Abortion at 36 Seattle University Law Review 1 (2012). Here is the abstract.

Over the past twenty years, prolife advocates have sought to control the political and legal narrative of abortion by misappropriating women’s history. They claim that “[w]ithout known exception, the early American feminists condemned abortion in the strongest possible terms.” Conservatives, led by the lobbying group Feminists for Life, have used historical feminist icons like Elizabeth Cady Stanton, Susan B. Anthony, and Alice Paul, to support their anti-abortion advocacy. Federal anti-abortion legislation has been named after these feminist heroines, amicus briefs to the U.S. Supreme Court proffer evidence that these women were outspokenly against abortion, and political forums for college students popularize the notion that feminists historically opposed abortion. The need to create a history of anti-abortion feminists seems important today because abortion has come to be equated with women’s rights. The appeal to historical figures in the abortion debate is powerful because it utilizes the gravitas of feminist heroines to challenge the existing legal and political assumption that abortion is a cornerstone of sex equality.
This political narrative, however, misconstrues the historical evidence. It invents rather than describes history, blatantly ignoring the text, context, and spirit of the work of the women it appropriates. This paper tests the veracity of the claims of a feminist history against abortion by focusing on Elizabeth Cady Stanton, “the brilliant chief philosopher and leader” of the nineteenth-century women’s rights movement. Stanton has quite literally been the poster child for the historical campaign against abortion, appearing on posters, commemorative coffee mugs and federal legislation. This analysis offers a detailed account of Stanton’s views related to abortion based on original historical research into the archives of Stanton’s papers. Like other works of legal history, it is fundamentally concerned with recovering all of the legally relevant facts and placing those facts in appropriate historical and legal context.
The evidence shows that Stanton did not talk about abortion per se. She did not respond to the public campaign for the criminalization of abortion led by the medical profession with attacks on the growing autonomy of women. Instead Stanton reframed this debate as one of women’s rights, framing the question as one of the “elevation of woman” through equal legal and social rights. Stanton’s theory of “enlightened motherhood” placed women as the “sovereign of her own person” with sole responsibility for deciding when and under what circumstances to bear children. She defended women accused of infanticide, exposing the gendered legal system of all-male juries, legislatures, and judges that condemned them. Stanton’s life work labored for radical change to the patriarchy of society seeking liberal legal reforms of equal rights for women. Her ideology was about the “self-sovereignty” of women and against the regulation of women by men or the law. Stanton thus seems an unlikely spokesperson for the modern anti-abortion movement committed to opposite ends.

Download the article from SSRN at the link. 

The Lincoln Legend

John Blake of CNN reviews (and critiques) Steven Spielberg's new film "Lincoln," and suggests that the Spielberg Lincoln is not as accurate or as complex as the PBS Lincoln available in a three-part documentary which begins airing tonight. In part, says Mr. Blake, the documentary points out that Harriet Beecher Stowe, not President Lincoln, had a great part in persuading people that slavery was immoral, via her novel Uncle Tom's Cabin. Further, what fueled the enduring attraction of slavery in the South was not just twisted moral thinking on the part of its defenders, but its economic foundation. He discusses more reasons, more issues, here.

Narratives and Trials

Lisa Kern Griffin, Duke University School of Law, has published Narrative, Truth, & Trial, at 101 Georgetown Law Journal 281 (2012). Here is the abstract.

This article critically evaluates the relationship between constructing narratives and achieving factual accuracy at trials. The story model of adjudication — according to which jurors process testimony by organizing it into competing narratives — has gained wide acceptance in the descriptive work of social scientists and currency in the courtroom, but it has received little close attention from legal theorists. The article begins with a discussion of the meaning of narrative and its function at trial. It argues that the story model is incomplete, and that “legal truth” emerges from a hybrid of narrative and other means of inquiry. As a result, trials contain opportunities to promote more systematic consideration of evidence. Second, the article asserts that, to the extent the story model is descriptively correct with respect to the structure of juror decision making, it also gives rise to normative concerns about the tension between characteristic features of narrative and the truth-seeking aspirations of trial. Viewing trials through the lens of narrative theory brings sources of bias and error into focus and suggests reasons to increase the influence of analytic processes. The article then appraises improvements in trial mechanics — from prosecutorial discovery obligations through appellate review of evidentiary errors — that might account for the influence of stories. For example, a fuller understanding of narrative exposes the false assumption within limiting instructions that any piece of evidence exists in isolation. And to better inform how adjudicators respond to stories in the courtroom, the article argues for modifying instructions in terms of their candor, explanatory content, and timing.

Download the article from SSRN at the link. 

What's In Theaters; What's Up With "Zero Dark Thirty"

Two reviews of newly released law-related films from The Hollywood Reporter: Gangster Squad and Promised Land.

Meanwhile, on Capitol Hill, some Senators are questioning CIA involvement in the writing of the script for the Kathryn Bigelow hit Zero Dark Thirty. According to THR,

[I]n a Dec. 19 letter to acting CIA director Michael Morell, the lawmakers expressed a concern that “given the CIA’s cooperation with the filmmakers and the narrative’s consistency with past public misstatements by former senior CIA officials, filmmakers could have been misled by information they were provided by the CIA.”

The senators went on to demand that the intelligence agency turn over to them  "'all information and documents provided to the filmmakers by CIA officials." In a second letter sent Dec. 31, Feinstein, Levin and McCain responded to an unusual message Morrell sent to all CIA employees on Dec. 21. In that message, which was posted to the agency's website, the acting director stated that “some [intelligence related to bin Laden’s location] came from detainees subjected to enhanced techniques, but there were many other sources as well.”

More here. More coverage here from the Los Angeles Times.

American Society For Legal History Meeting, 2013

Call for Papers and Participation: American Society For Legal History

The 2013 meeting of the American Society for Legal History will take place in Miami, Florida, November 7-10, 2013. The ASLH invites proposals on any facet or period of legal history, anywhere in the world. In selecting presenters, the Program Committee will give preference to those who did not present at last year’s meeting.  Travel grants will be available for presenters in need; these resources will nevertheless still be limited, and special priority will be given to presenters traveling from abroad, graduate students, post-docs, and independent scholars.  The Program Committee welcomes proposals for both full panels and individual papers, though please note that individual papers are less likely to be accepted. As concerns panels, the Program Committee encourages the submission of a variety of different types of proposals, including: • traditional 3-paper panels (with a separate commentator and chair) • incomplete 2-paper panels (with a separate commentator and chair), which the Committee will try to complete with at least 1 more paper; • panels of 4 or more papers (with a separate commentator and chair); • thematic panels that range across traditional chronological or geographical fields ; • author-meets-reader panels; • roundtable discussions.  All panel proposals should include the following: • A 300-word description of the panel; • A c.v. for each presenter (including complete contact info); • In the case of paper-based panels only, a 300-word abstract of each paper .  Individual paper proposals should include: • A c.v. for each presenter (including complete contact info); • A 300-word abstract of each paper  The deadline for submitting proposals is March 1, 2013. Proposals should be sent as email attachments to proposals@aslh.net. Substantive questions should be directed to Christina Duffy Ponsa at cponsa@law.columbia.edu or Karl Shoemaker at kbshoemaker@wisc.edu.  Those unable to send proposals as email attachments may mail hard copies to: 2013 ASLH Program Committee c/o Christina Duffy PONSA Columbia Law School 435 W. 116th Street, Rm. 913 New York, NY 10027  

News of a Law and Literature Conference, Belo Horizonte, Brazil, July 2013

News of a Law and Literature Conference, forthcoming, July 2013

“Law and Literature: experiences from my country”

Law and Literature  brings together different disciplines and hence different cultures with distinct disciplinary languages, methododologies and values, and as a result different approaches to narratives. It is on this plane that fruitful research can be done on what binds rather than divides the disciplines, law usually aiming at unity and closure and literature being more closely attentive to social diversity. This workshop aims to establish a platform for a literary-legal dialogue , not only about literary reflections on law and justice, or the academic study of law and law’s societal impact, but also about the possible contributions of the humanities to legal education and practice, for example with respect to humanistic methodologies for doing law. This workshop therefore invites both general theoretical and/or methodological explorations of the bonds of law and literature, and reflections on personal experiences and/or applications of literary-legal research in specific countries, jurisdictions or (professional) cultures, hence its subtitle.

Convenors: Marcelo Campos Galuppo, Jeanne Gaakeer, Vera Karam de Chueiri and Alberto Vespaziani

The Congress is held place in Belo Horizonte (Brazil), 21-28 July 2013.

Deadline for submission of abstracts:  28 February 2013
How to submit: via the IVR website under Paper Submissions (please note: not via email) so that those who intend to submit an abstract must first register via ,via www.ivr2013.org under Registrations.

Convenors’deadline for approval of submitted abstracts: 15 March 2013

Approved abstracts will be included in the official Congress Program abstracts book  when the congress fee is paid before 15 March 2013.

Deadline for payment is 21 June 2013.

What Else You Can Do With a Law Degree

What else can you do with a law degree? Check out Comedians at Law, the website of a bunch of recovering lawyers, licensed to make you laugh. (Or try to. Getting up in front of an audience is tough, tougher than teaching). Podcasts here. Speaking of--what is the noun of venery for a bunch of lawyers? A lawsuit of attorneys? A license of lawyers? A jury of mouthpieces? Richard Eisel suggests a "brief of attorneys" and "a gavel of judges."

Speaking of other uses for a law degree, if you still haven't checked out Bloomberg Law's Stealth Lawyers series here, it's still going strong (if the link doesn't work, try searching YouTube for "Bloomberg Law Stealth Lawyers", without the quotation marks). Dare I note(quite modestly) that Bloomberg also credits my research in a video in this series called "History's Stealth Lawyers"? Check it out here. 

The Dred Scott Decision

David T. Hardy has published Dred Scott, John San(d)Ford, and the Case for Collusion. Here is the abstract.

Dred Scott profoundly changed American history. Intended to protect slavery, its unforeseen consequences were the election of Abraham Lincoln, the political destruction of Stephen Douglas, and the adoption of the 13th, 14th, and 15th Amendments. It was also the Court's first interpretation of freedom of speech and assembly, of the right to arms, and of substantive due process. This article explores the degree to which Dred Scott was collusive -- not in the sense of both sides desiring the same outcome, but in the sense of them manufacturing a false case which each thought they could win. The defendant was John F. A. Sanford, a New York businessman who had no claim to being the Scott family's slaveholder, but who nonetheless stipulated to being such. The real slaveholder was his sister Irene, whom the Scotts initially sued in State court. When the Federal suit was brought, her name was likely omitted, and Sanford substituted, because its known destination was the Supreme Court ... and Irene was now married to Calvin Chaffee, a member of the House of Representatives, and a prominent opponent of slavery. Immediately after the decision was handed down, the Chaffees' role was exposed by the pro-slavery press and a public relations battle ensured, ending with their arranging for the Scott family's manumission. Why the pro-slavery side would have colluded is not hard to understand: given the composition of the Court, they were the likely winners. The motive for Scott's attorneys' collusion is harder to discern. His trial court attorney seems to have thought it worth the gamble because a win would enable sidestepping of the Fugitive Slave Act, a major gain given its almost-complete due process deprivations, while a loss would do limited harm -- the attack on the Missouri Compromise and on Congressional power over slavery in the territories was not an issue at the trial court level. Scott's attorney in the Supreme Court did face that issue, but had never been informed that the defendant had no real standing in the case.

Download the paper from SSRN at the link. 

Who Done It?

The November 30th quiz at Classical-music.com, the website of BBC Music magazine, offers up some musical mystery fun. Can you identify these fictional and real-life murderers and murder victims? You might have to register (it's free) in order to gain access to the quiz, but the material on the website (including downloads, podcasts, reviews, and essays), is more than worth the price of admission. 

A New Collection on Legal Aesthetics

Forthcoming from Walter de Gruyter:

Visualizing Law and Authority: Essays on Legal Aesthetics (Lief Dahlberg ed.; 2012) (Law and Literature; 4).

From the publisher's website:

The volume "Visualizing Law and Authority. Essays on Legal Aesthetics" brings together revised papers from the international conference "Law and the Image", held in Stockholm, 24–25 September, 2010. The participants/contributors belong to the disciplines of Art history, Cultural studies, Literary and Media studies, and Law. The contributions discuss the complex relations between law, media and visual phenomena. The common theme of the essays consists in an examination of the scopic field and of regimes of visibility in phenomenological terms, arguing that law constitutes a cognitive and aesthetic field of normative world-making. Rather than merely inverting Shelley’s dictum that the "poets are the unacknowledged legislators of the world", the essays argue in different ways for the necessity to develop a legal aesthetics.
The most immediate way of pursuing such a legal aesthetics consists in examining law itself as an aesthetic object, for instance the power of law to produce icons, in the sense of unreadable texts or textiles (Martin Kayman, Gary Watt). Several essays focus on the way that visual art and media can be used to constitute and represent political power, but also to question it and to put it into question (Chiara Battisti, Leif Dahlberg, Elina Druker, Sidia Fiorato, Paul Raffield). Other essays investigate legal structures inherent in the artwork (and the artworld) itself (Ari Hirvonen, Max Liljefors, Christine Poggi, Karen-Margrethe Simonsen). Finally, there are two essays focusing on the use of images and imagery in the legal process, explicity arguing for the need of a legal aesthetics (Daniela Carpi, Richard Sherwin). Although diverse, the individual essays are interconnected with each other in fruitful and critical ways, making both explicit and implict references to each other.

Available in print and as an e-book.

 

Confucius and Chinese Legal Philosophy

Norman P. Ho, Netherlands China Law Centre; Morrison & Foerster (Hong Kong) is publishing Confucian Jurisprudence in Practice: Pre-Tang Dynasty Panwen (Written Legal Judgments) in the Pacific Rim Law & Policy Journal. Here is the abstract.

Most scholarship on Chinese legal philosophy has neglected the study of Confucian jurisprudence in practice. As a result of this incomplete portrayal, scholars predominantly view the premodern Chinese Confucian legal tradition as lacking a rule of law system, which has led to blaming Confucianism for much of China’s modern and historical rule of law problems. This article seeks to complicate this view by examining Confucian jurisprudence in practice: specifically, the development of pre-Tang dynasty panwen (written legal judgments). Through analysis of specific panwen from various Chinese primary sources — many of which have never been translated into English — this article will show that even in Chinese antiquity the legal system was not solely marked by codification or the lack of the rule of law, but was far more complex and diverse than most scholars have portrayed. For example, elements of case law played an important role in Chinese legal history. Indeed, it is an especially good time to build our understanding of the use of cases and the role of panwen, in China’s legal past given the Supreme People’s Court’s recent emphasis on the role of case law in contemporary Chinese jurisprudence.

Download the article from SSRN at the link. 

Robin West's "Normative Jurisprudence"

Hanoch Dagan, Tel Aviv University, Buchmann Faculty of Law, is publishing Normative Jurisprudence and Legal Realism in volume 63 of the University of Toronto Law Journal (2013). Here is the abstract.

This review article examines Robin West’s provocative new book Normative Jurisprudence: An Introduction. West provides a learned and sophisticated account of the decay of the three major jurisprudential traditions of North American legal theory: natural law, legal positivism, and critical legal studies, which leads to and is motivated by a spirited plea for the reinvigoration of distinctively legal normative scholarship. Her proposed genealogy is valuable and her preliminary blueprint for reform important. But I believe that both fronts can be significantly enriched by a more charitable reading of legal realism than the one she (briefly) provides. Thus, this review offers a competing genealogical account of the three contemporary approaches to law West criticizes, claiming that like critical scholars, promoters of institutional fit and of economic efficiency are also intellectual descendants of legal realism. Legal realism, I insist, provides a subtle conception of law as a set of institutions distinguished by the irreducible cohabitation of power and reason, science and craft, and tradition and progress. This conception, which was torn apart by the realists’ heirs, offers the key to a proper cure to the predicament West identifies by pointing out to a robust understanding of legal theory and thus of the distinctive contribution legal scholars can make in normative debates.

Download the article from SSRN at the link. 

New Issue of Law and Humanities Is Available

The new issue of Law and Humanities is available.

Law and Humanities

Volume 6. Number 2. 2012

Hart Publishing is very pleased to let you know that the 2^nd issue of the 2012 volume of Law and Humanities is now available online.

Please see below for the table of contents, information about online access and details on how to subscribe.

CONTENTS

Editorial by Paul Raffield and Gary Watt

Free to view – please click on the link below:

http://www.ingentaconnect.com/content/hart/lawhum/2012/00000006/00000002/art00001;jsessionid=1lbxa8ee47oct.alexandra

Articles

Oaths, Credibility and the Legal Process in Early Modern England: Part One

Barbara J Shapiro

‘Observe how parts with parts unite / In one harmonious rule of right’: William Blackstone’s Verses on the Laws of England

Matthew Mauger

Human Rights and Radical Universalism: Aimé Césaire’s and CLR James’s Representations of the Haitian Revolution

Philip Kaisary

Dickens and the National Interest: On the Representation of Parties in Bleak House

Jan-Melissa Schramm

Truth, Law and Forensic Psychiatry in Truman Capote’s In Cold Blood

Svein Atle Skålevåg

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To access this issue online, read the abstracts and purchase individual papers please click here:

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SUBSCRIPTIONS

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Judges On Reality TV

Cynthia Bond, John Marshall Law School, has published "We, the Judges": The Legalized Subject and Narratives of Adjudication in Reality Television at 81 UMKC Law Review 1 (2012). Here is the abstract.

At first a cultural oddity, reality TV is now a cultural commonplace. These quasi-documentaries proliferate on a wide range of network and cable channels, proving adaptable to any audience demographic. Across a variety of types of “reality” offerings, narratives of adjudication — replete with “judges,” “juries,” and “verdicts”— abound. Do these judgment formations simply reflect the often competitive structure or subtext of reality TV? Or is there a deeper, more constitutive connection between reality TV as a genre and narratives of law and adjudication?
This article looks beyond the many “judge shows” popular on reality TV (e.g. Judge Judy, etc.) to examine the law-like operations of the genre itself, and how legal narratives dovetail with the increasingly participatory nature of our “convergence culture.” In addition, this article examines the ideologies these shows represent regarding community, and particularly the role of the legalized subject within this community. How does the prevalence of images of judges and judging on reality TV fit into previous notions that media audiences empathize with legal processes by identifying with an “on-screen” jury, embodying shared, democratic decision-making? Do these shows play on pop cultural narratives of conflicts between judges (within the show) and juries (the viewing audience)? Finally, do such shows empower spectators by engaging them in democratic “knowledge collectives,” or instead represent a neo-liberal “technology of governmentality”? Ultimately, through its enactment of a range of adjudicatory and quasi-legal narratives, reality TV emerges as a highly regulatory space. Law is a compelling narrative for recirculation in a contemporary media culture marked by contestations of authority and community, as the interrelationships between cultural producer, text, and cultural consumer shift and are redefined.

Download the article from SSRN at the link.

Law, Religion, and the Peace of Westphalia

Gordon A. Christenson, University of Cincinnati College of Law, has published 'Liberty of the Exercise of Religion' in the Peace of Westphalia in volume 21 of Transnational Law & Contemporary Problems (2012). Here is the abstract.

This essay takes a fresh look at the backdrop and structure of toleration and religious freedom in the Peace of Westphalia of 1648 and in the American Constitution, with special focus on a recent unanimous Supreme Court decision of first impression. That important decision protects inner church freedoms in ecclesiastical employment, the so-called "Ministerial Exception" to federal and state employment discrimination laws.
The Westphalian system of sovereign states spread widely after ending the Christian wars in Europe, beginning with the American Declaration of Independence. I ask whether there is any link between provisions for free exercise of religion in the Treaty and the Religion Clauses of the American Constitution and compare them structurally. The roots of religious tolerance worked out in the structure and practice of the Peace of Westphalia might have special relevance within the global community today, when ubiquitous tensions between liberty of conscience, secular ideology, and religion are faced by most sovereign states, certainly in the United States.

Download the essay from SSRN at the link. 

Law In Modernity: A New Book From Routledge

Reading Modern Law: Critical Methodogies and Sovereign Formations
Edited by Ruth Buchanan, Stewart Motha, and Sundhya Pahuja

Published May 3, 2012 by Routledge-Cavendish.

Reading Modern Law identifies and elaborates upon key critical methodologies for reading and writing about law in modernity. The force of law rests on determinate and localizable authorizations, as well as an expansive capacity to encompass what has not been pre-figured by an order of rules. The key question this dynamic of law raises is how legal forms might be deployed to confront and disrupt injustice. The urgency of this question must not eclipse the care its complexity demands. This book offers a critical methodology for addressing the many challenges thrown up by that question, whilst testifying to its complexity. The essays in this volume - engagements direct or oblique, with the work of Peter Fitzpatrick - chart a mode of resisting the proliferation of social scientific methods, as much as geo-political empire. The authors elaborate a critical and interdisciplinary treatment of law and modernity, and outline the pivotal role of sovereignty in contemporary formations of power, both national and international. From various overlapping vantage points, therefore, Reading Modern Law interrogates law's relationship to power, as well as its relationship to the critical work of reading and writing about law in modernity.

A Conference on Eighteenth Century Portuguese Studies

From Jose Calvo Gonzalez, news of another interesting conference: this one beginning today in Lisbon and running through the 5th of December. It's the Sociedade Portuguesa de Estudos do Século XVIII. COLÓQUIO INTERNACIONAL (Lisboa, 3-5 de Dezembro de 2012). More here at Professor Calvo's blog,  Iusrisdictio-Lex Malacitana.

Box Scores

When I see a blog like Overthinking It, I know I'm not alone. Excellent. Courtesy of Lowering the Bar, I bring you Overthinking It's graph on wins and losses (that is, convictions, plea bargains, and The Dreaded Acquittals) on Law and Order. The post, aptly named "The Law and Order Database: Cracking the Code," is devoted to Logged and Ordered: The Complete Series, and breaks down the results of the TV gang's 20 years of chasing felons. Enjoy.

Hollywood and the Death Penalty

David Ray Papke, Marquette Law School, has published Muted Message: Capital Punishment in the Hollywood Cinema as Marquette Law School Legal Studies Paper No. 12-25. Here is the abstract.

Contemporary Hollywood films seem at first glance to be opposed to capital punishment. However, this article’s consideration of five surprisingly similar films (Dead Man Walking, The Chamber, Last Dance, True Crime, and The Life of David Gale) finds they do not truly and consistently condemn capital punishment. Instead of suggesting that the practice of capital punishment is fundamentally immoral and should in general be ended, the films champion only worthy individuals on death row and delight primarily in the personal growth of other characters who attempt to aid the condemned. In the end, Hollywood offers only a muted message regarding the on-going use of capital punishment.

Download the paper from SSRN at the link.

Studying Injustice

A new book from Eric Heinze, Queen Mary, University of London. Here is the description from the publisher's website.

The Concept of Injustice challenges traditional Western justice theory. Thinkers from Plato and Aristotle through to Kant, Hegel, Marx and Rawls have subordinated the idea of injustice to the idea of justice. Misled by the word’s etymology, political theorists have assumed injustice to be the sheer, logical opposite of justice.

Heinze summons ancient and early modern texts, philosophical and literary, with special attention to Shakespeare, to argue that injustice is not primarily the negation, failure or absence of justice. It is the constant product of regimes and norms of justice. Justice is not always the cure for injustice, and is often its cause.

Selected Table of Contents

Introduction;  1. Nietzsche’s Echo; PART ONE: Classical Understandings; 2. Injustice as the Negation of Justice; 3.Injustice as Disunity; 4. Injustice as Mismeasurement; PART TWO: Post-Classical Understandings; 5.Injustice as Unity; 6. Injustice as Measurement; 7. Measurement and Modernity; Works Cited.

About the Author

Eric Heinze is Professor of Law and Humanities at Queen Mary, University of London. His most recent publications on legal theory have appeared in Oxford Journal of Legal Studies, Ratio Juris, International Journal of Law in Context, Legal Studies, Journal of Social & Legal Studies, Canadian Journal of Law and Jurisprudence, Law & Critique, Law & Literature, and Law & Humanities.

Published October 2012| 232 pages | Hardback: 978-0-415-52441-4| $120.00 $96.00

                                    For more information, please visit: www.routledge.com/9780415634793

Use discount code ERJ94 to save 20% off when you order online.

Rob.Kistler@taylorandfrancis.com

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Women In Nineteenth Century English Literature: A New Book

New from Oxford University Press:

Hilary M. Schor, Curious Subjects:  Women and the Trials of Realism (December, 2012). $65.00.

Below is a description of the book's contents from the publisher's website.

While nineteenth-century literary scholars have long been interested in women's agency in the context of their legal status as objects, Curious Subjects makes the striking and original argument that what we find at the intersection between women subjects (who choose and enter into contracts) and women objects (owned and defined by fathers, husbands, and the law) is curiosity. Women protagonists in the novel are always both curiosities: strange objects worthy of our interest and actors who are themselves actively curious--relentless askers of questions, even (and perhaps especially) when they are commanded to be content and passive. What kinds of curiosity are possible and desirable, and what different kinds of knowledge do they yield? What sort of subject asks questions, seeks, chooses? Can a curious woman turn her curiosity on herself?" Curious Subjects takes seriously the persuasive force of the novel as a form that intervenes in our sense of what women want to know and how they can and should choose to act on that knowledge. And it shows an astonishingly wide and subtly various range of answers to these questions in the British novel, which far from simply punishing women for their curiosity, theorized it, shaped it, and reworked it to give us characters as different as Alice in Wonderland and Dorothea Brooke, Clarissa Harlowe and Louisa Gradgrind. Schor's study provides thought-provoking new readings of the most canonical novels of the nineteenth century-- Hard Times, Bleak House, Vanity Fair, Daniel Deronda, among others--and pushes well beyond commonplace historicist accounts of British culture in the period as a monolithic ideological formation. It will interest scholars of law and literature, narratology, and feminist theory as well as literary history more generally.

Thanks to Simon Stern of the University of Toronto Faculty of Law and Department of English for alerting me to this title.

Early American Lawyers and Their Books

Alison L. LaCrois, University of Chicago Law School, has published The Lawyer's Library in the Early American Republic in Subversion and Sympathy: Gender, Law, and the British Novel in the Eighteenth and Nineteenth Centuries (Martha C. Nussbaum and Alison L. LaCroix, eds., Oxford University Press, 2013).

This essay appears in a volume titled Subversion and Sympathy: Gender, Law, and the British Novel in the Eighteenth and Nineteenth Centuries (Martha C. Nussbaum and Alison L. LaCroix, eds.) (forthcoming, Oxford University Press, 2013). The essay explores the role that fiction played in the early republican project of building American nationhood. Many eighteenth- and nineteenth-century American statesmen and jurists – including such prominent thinkers as John Adams, Thomas Jefferson, John Marshall, and Joseph Story – were avid readers of fiction. The vast majority of the novels they read were written by English authors; moreover, many of those authors were women. For example, among Marshall’s surviving papers is a letter in which he chided Story for not including Jane Austen among the great novelists that Story listed in an 1826 address to Harvard’s Phi Beta Kappa chapter. Story had, however, cited Maria Edgeworth, Fanny Burney, and Ann Radcliffe in his address, and his son later recalled that his father had enjoyed Austen’s novels. “This is emphatically the age of reading,” Story told his Phi Beta Kappa audience. And, he added, “[m]an no longer aspires to an exclusive dominion in authorship.” For founding-era thinkers such as Adams and Jefferson, novel-reading provided a way for Americans to participate in transatlantic culture and to hone a republican moral sensibility. For the early-nineteenth-century jurists Marshall and Story, fiction offered an opportunity to engage with emotions such as sympathy and to participate in a public sphere that brought men and women together, as both authors and readers, in a conversation that connected politics, law, and literary culture. These producers of legal theory were also consumers of fiction, gentlemen of letters who immersed themselves in female novelists’ work not as a means of escape, but because those novels offered insights into what they regarded as crucial political questions of individual sentiment and national character.

Download the essay from SSRN at the link.

Incarceration, Racial Justice and "The Wire"

Frank Rudy Cooper, Suffolk University Law School, has published Hyper-Incarceration as a Multidimensional Attack: Replying to Angela Harris through The Wire, at 37 Washington University Journal of Law and Policy 67 (2011). Here is the abstract.

Angela Harris's article in this symposium makes a valuable contribution to our understanding of hyper-incarceration. She argues, quite persuasively, that the term “gender violence” should be understood broadly to include men’s individual and structural violence against other men. She then considers what we ought to do about the incredible increase in incarceration, mostly of racial minority men, over the past 40 years. She terms this “mass incarceration” and argues that it is best dealt with by a shift from “restorative justice” to “transformative justice.” Whereas restorative justice emphasizes bringing together various elements of the community to repair the harm done by a crime, transformative justice goes further by emphasizing the racist and heteropatriarchal forces leading to the crime and preventing the healing of both the harm doer and communities.

It is hard to criticize Angela Harris. She is, after all, a founder of critical race theory and critical race feminism. Her article in this symposium demonstrates the depth of her insights and clarity of her expression. Nonetheless, I want to challenge Harris on one point and extend her analysis on another. First, for reasons I will explain, I believe it is crucial for scholars to start referring to so-called “mass incarceration” as “hyper-incarceration.” Second, I want to extend Harris's analysis of the multidimensionality of identities by means of a case study of how class operates during the drug war era, as depicted in the critically acclaimed HBO drama The Wire.
To establish those arguments, this essay proceeds as follows. Part I explains the importance of the term “hyper-incarceration.” Part II defines a multidimensional masculinities approach to the relationships between identities, culture, and law. Part III uses an analysis of The  Wire to argue that identity theorists should pay greater attention to capitalism. Part IV concludes that addressing hyper-incarceration requires simultaneously reducing the stigma attached to racial minority men and rebuilding economic structures in the inner-city.

Download the article from SSRN at the link. 

"All Celebrity Voices Are Impersonated...Poorly"

The Hollywood Reporter brings us its choices for the top 10 legal disclaimers offered up by the movies. Ok, they're not for real. Well, some of them aren't for real. I think. (Is the X-Files one legit?) But, they're amusing to contemplate.

Critical Race Theory Conference at Yale, February 8-9, 2013

 From Yale Law School, an announcement of a forthcoming Conference on Critical Race Theory:

Critical Race Theory: From the Academy to the Community Conference

Yale Law School

127 Wall Street

New Haven, CT 06511

February 8-9, 2013

Registration is now live!

http://yalecrt.eventbrite.com/

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Following the success of the last critical race theory conference held at Yale in 2009, Yale Law School is proud to host the Critical Race Theory: From the Academy to the Community conference on Friday, February 8, 2013 and Saturday, February 9, 2013. The conference is sponsored by the Zelia & Oscar Ruebhausen and Debevoise & Plimpton Student Fund at Yale Law School, the American Studies Department, the Public Humanities Initiative, and La Casa Cultural at Yale College.

The conference will convene scholars, legal practitioners, and community leaders to examine the ways in which critical race theory can be applied to scholarly work, legal practice, social justice advocacy and community based movements. Confirmed speakers include Devon Carbado, Sumi Cho, Kimberlé Crenshaw, Lani Guinier, Cheryl Harris, Tanya Hernandez, Charles Lawrence, Gary Peller, and Gerald Torres.

In 2009, Yale Law School hosted a highly successful conference that explored the insights of critical race theory, as applied to immigration law. We look forward to continuing these conversations and exploring the role of CRT in other contexts at this February’s conference.

For more information about programming, travel, accommodations, and more, please visit our website at http://www.law.yale.edu/news/crt2013.htm. Any questions or comments may be directed to crt.conference@yale.edu. 

International Conference On Shakespeare and Montaigne

José Calvo Gonzalez, University of Malaga Faculty of Law, sends word of a conference on Shakespeare and Montaigne to be held at the Universidade Federal Fluminense on November 26, 2012. More here.

Law and Language in the Macau Legal Regime

Salvatore Casabona has published The Law of Macau and its Language: A Glance at the Real 'Masters of the Law' at 4 Tsinghua China Law Review 223 (2012). Here is the abstract.

This article discusses the biligualistic legal system in Macau. The discussion begins with the outline of the history of the Macanese bilingualism. The author then examines the crucial distinction between the language in the law and the law in the language. By analogy to European Community and other bilingual legal systems, this article identities the characteristic of Macanese mulitlingualism. This article concludes with suggestions about a new approach and the role of universities in resolving the matter.

Download the article from SSRN at the link. 

Ungendering Law and Literature

Greta Olson, Justus-Liebig-University Giessen, has published Law is not Turgid and Literature not Soft and Fleshy: Gendering and Heteronormativity in Law and Literature Scholarship at 36 Australian Feminist Law Journal 65 (2012). Here is the abstract.

This essay uncovers a pattern of gendering in Law and Literature research that has contributed to limited understandings of the disciplines, taken singly, as well as to the projection of a heteronormative script on their relations to one another. This includes the troping of literature as feminine and that of law as masculine, and the emplotment of their relationship as that of an initially antagonistic yet ultimately satisfying heterosexual romance. Accordingly, actual forms of discrimination towards women are confused with contradictory images of a feminized literature as an empathetic, eloquent and morally superior woman. This idealized image of literature is figured as initially suffering under the regime of rationalistic, masculinized law but then reforming ‘him’ through the power of love. To posit law as a man and literature as a woman is to elide their similarities and reify their differences. After assembling evidence of gendering in US American Law and Literature work and to a lesser degree in British critical jurisprudence, the essay outlines historical reasons for why it is problematic to think of literature as morally uplifting and feminine and law as ‘brutish’ and masculine. Instances of ethical and contingent applications of law speak against any monolithic narrative that suggests that literature is inherently more morally conscious. Literature has proven to be a privileged forum for doing the police work of enforcing the gender binary as well as for maintaining other social divisions. In closing, the essay describes strategies to degender Law and Literature in an effort to move the conversation forward.

Download the article from SSRN at the link. 

Euthanasia

Ravulapati Madhavi, The ICFAI Foundation for Higher Education, has published Merciless Thoughts on Mercy Killing: A Critique, at 2 The IUP Law Review 11 (July 2012). Here is the abstract. 

The nature is known for the coexistence of opposites — latent and patent. Ugliness is shrouded by beauty, cruelty shrouded by kindness, love concealing hatred and life concealing death. Life and death are two ends of a scale. It is unfair to consider life as a respectful end and death as a disrespectful one. Both are same. Probably because of this, in Greek language, the two components — EU and THANATONA — have given birth to euthanasia. The term appears to sound highly controversial, bitter and condemned by a major chunk of the human race throughout the globe. Passions rise high, emotions explode and acrimonious debates alarm the serenity of humanity when the word ‘mercy killing’ is uttered. Yes, the subject is controversial because it is interesting and intriguing too. Interesting as it envelops multiple facets of social, economic and moral and ethical life, and intriguing because of its subtle clash with religion and faith trends. There is an adage that “a thing ceases to be a thing of interest when it ceases to be a thing of controversy.” It is true for ‘mercy killing.

The full text is not available from SSRN.

 

Western Water Law and United States Legal History

David Schorr, Tel Aviv University Faculty of Law, has published The Colorado Doctrine: Water Rights, Corporations, and Distributive Justice on the American Frontier (Yale University Press, 2012). Here is the introduction.

The water-law doctrine of prior appropriation is today widely misunderstood, largely due to ignorance of the social and legal context in which it arose. It has become associated with a set of values -- the preference for private over common property, the privatization of the public domain, the facilitation of markets in natural resources -- that have little to do with the ideology behind the decision or how contemporaries saw it. Analysis of the available historical evidence makes it quite clear not only that the doctrine of appropriation as developed in nineteenth-century Colorado was viewed at the time as striking a blow at private property in order to advance distributive justice, but also that it had that very effect as its central goal.
While the primary purpose of this book is to challenge the received wisdom regarding the ideology of western water law, relying primarily on an examination of contemporary sources, the significance of the argument goes beyond revision of the historical record for its own sake. Historians and theoreticians of property rights have tended to agree that the primary concern driving the rejection of riparian doctrine in favor of appropriation in the western United States was economic growth, part of that nineteenth-century “release of individual creative energy” by American law, to use Willard Hurst’s phrase or the common law’s characteristic tendency toward efficiency, as some economic analysts of the law would have it. The claims advanced in this book, stressing considerations of widespread distribution of property as the primary motivating factor in the adoption of appropriation law, challenge these consensus views regarding property law and American legal history in general. In doing so, they raise the question as to whether considerations of distributive justice have been given their due in study of these fields. Given the value American legal culture places on arguments from past practice and precedent, they also challenge current paradigms of natural-resource law.

Download the introduction from SSRN at the link.

The Price of Words

Xing Li, Stanford Univesrity Department of Economics, Megan MacGarvie, Boston University Department of Finance & Economics and National Bureau of Economic Research, and Petra Moser, Stanford University Department of Economics & National Bureau of Economic Research have published Dead Poets' Property - The Copyright Act of 1814 and the Price of Books in the Romantic Period. Here is the abstract.

Although copyright is a subject of intense debate, there is little empirical evidence on the effects of stronger rights on the price of intellectual assets. This paper exploits a differential increase in the length of copyright in favor of books by dead authors under the 1814 U.K. Copyright Act to investigate the causal effects of longer copyright terms on price. Difference-in-differences analyses, which compare the price of new editions of books by dead and living authors before and after 1814, indicate an 8 percent increase in price for each additional year of copyright, and an elasticity of price with respect to longer copyright of 0.9. Results are robust to controlling for book age, author, and time fixed effects, as well as genre fixed effects and controls for literary quality. They are also robust to excluding books by famous authors who died after 1814, and to excluding books by recently deceased authors. Placebo regressions reveal no significant effects for books by dead authors that did not benefit from longer copyrights. Complementary analyses confirm that books become cheaper as they approach the end of copyright.

Download the paper from SSRN at the link. 

Religion and the Duality of Law and Literature

Nahel N. Asfour, University of Vienna Faculty of Law, has published Law and Literature: Jewish and Christian Models at 6 Pólemos: Journal of Law, Literature and Culture  263 (2012).

Here is the abstract.

Law and literature is the study of the utilities of the reciprocal ties between the two domains. Classic approaches divide the field into two main patterns of study. One is the literary approach to law, i.e. the study of law as literature, which primarily implements literary theory and criticism in legal texts. The second is law in literature, which investigates literary expressions of law and the various ways law is depicted in literature.
Of late, a new paradigm labeled “literature alongside law” has been suggested. This paradigm neither puts the emphasis on one field nor utilizes one for the service of the other. Rather, it investigates both fields, viewed one beside the other, as interwoven cultural expressions of a complex fabric of the human condition. This duality exposes the various ties infrequently noted within the confines of the former classic approaches. This paradigm is closely tied and evoked by an old yet interesting source of scholarly inspiration: the Jewish rabbinic combination of Halacha and Aggadah. They can be appreciated as the religious parallel model of their paradigm and of contemporary law and literature scholarship as a whole.
Halacha is the body of religious legal norms and bending interpretations as expounded by Jewish Rabbis. Aggadah is the body of narratives, stories, myths, advice, morals and parables transmitted traditionally alongside Halacha. Rabbis, as the early scholars of law and literature, pondered the nature of this duality and the prospective worth of its inseparability. In comparison, Christianity and Canon law seem to reject this model and any equal treatment of literature alongside law in its central works. Due to various historical and theological reasons, this duality was denounced. While the Jewish model has been widely investigated, no similar attempts have been made as regards the Christian model.
This paper seeks to present these two religious models within the confines of law and literature scholarship, to compare both and, especially, to ponder possible meanings for the repulsing tension amid law and literature in the Christian model. The article concludes that law and literature is a two-sided coin, much like the two religious models. One seeks better truth in the constant dialogue of law and literature. The other preserves its truth in the polar and repulsing tension of law and literature. These two models ought to be equally valued for law and literature scholarship.

The full text is not available from SSRN. 

Life Imitates Art

CNN points out the link between the developing real-world David Petraeus affair and the ABC television show Scandal, which stars Kerry Washington as Olivia Pope, the fictional character based on Judy Smith, a crisis management consultant who works in the D.C. area. Ms. Smith, a co-producer of the show, is now representing Jill Kelley, one of the individuals mentioned as a friend of General Petraeus.

What would Ms. Smith do when a client comes calling with a problem? Here's her take on the issues raised in a recent episode of the show, posted to the ABC website November 9th.