Conference On Law and Literature In Diaspora Studies To Take Place in May, 2013

Dr. Daniela Carpi, University of Verona, and President of the Associazione Italiana Diretto e Letteratura announces a Conference on Law and Literature in Diaspora Studies, May 6-9, 2013. Details below. More information available by clicking on the link here.

CENTRO ITALO-TEDESCO

DEUTSCH-ITALIENISCHES ZENTRUM

Law and Literature in Diaspora Studies

Villa Vigoni-Gespräche

Villa Vigoni, 6-9 MAY 2013

programme

Programm und Teilnehmerliste / Programme and Participants:

Monday, 06 May 2013

19.00 Welcome Reception, Aperitif

19.30 Dinner

Tuesday, 07 May 2013

9.30   Opening addresses

Prof. Dr. Immacolata Amodeo, Generalsekretärin, Villa Vigoni

Prof. Dr. Daniela Carpi (Verona), Convenor

Prof. Dr. Klaus Stierstorfer (Münster), Convenor

9.30   Opening Discussion: Set-up, Procedures, Possible Outcome

All Participants

Chair: Profs Carpi and Stierstorfer

10.30  Coffee break

11.00  Forum 1 – Theorizing diaspora from the perspective of ‘law and literature’
Chair: Prof. Dr. Fabian Wittreck (Münster)
Prof. Dr. Leif Dahlberg (Stockholm)
Prof. Dr. Jeanne Gaakeer (Rotterdam)
Prof. Dr. Peter Schneck (Osnabrück)
Forum 1 – Plenary discussion

13.00-14.30       Lunch

14.30  Forum 2 – Theorizing the law from the perspective of ‘literary diaspora studies’
Chair: Prof. Dr. Klaus Stierstorfer (Münster)
Prof. Dr. Avtar Brah (London)
Prof. Dr. Janet Wilson (Northampton)

16.00  Coffee break

16.30  Forum 2 – continued
Dr. Franziska Quabeck (Münster)
Prof. Dr. Sridhar Rajeswaran (CASII, India)

18.00  Concluding discussion

19.30 Dinner

Wednesday, 08 May 2013

9.30   Forum 3 – Theorizing literature from the perspective of ‘legal diaspora studies’

Chair: Prof. Dr. Paola Carbone
Dr. Sidia Fiorato (Verona)
Emma Patchett, M.A. (Münster)

Dr. Riccardo Baldissone (London)

11.00  Coffee break

11.15  Keynote: Prof. Dr. Melanie Williams (Exeter)

11.45  Forum 3 – Discussion

13.00-14.30       Lunch

14.30  Forum 4 – Conceptual common ground between legal studies, literary studies, and diaspora studies
Chair: Prof. Dr. Daniela Carpi (Verona)
Prof. Dr. Nilufer Bharucha (Mumbai)

16.00  Coffee break

16.30  Forum 4 – continued

Prof. Dr. Pier Giuseppe Monateri (Torino)
Prof. Dr. Fabian Wittreck (Münster)

18.00  Closing panel discussion: Resume, Outcomes

19.30 Dinner

Thursday, 09 May 2013

9.30   Forum 5 – Prospectus: Methodological, terminological, and conceptual desiderata
Chair: Prof. Dr. Jeanne Gaakeer (Rotterdam)
Dr. Florian Kläger (Münster)
Dr. Karen-Margrethe Simonsen (Aarhus)
Dr. Chiara Battisti (Verona)

13.00-14.30       Lunch

Departure

Busman's Holiday

Mary Whisner, University of Washington School of Law, has published Bitten by the Reading Bug, at 105 Law Library Journal 113. Here is the abstract.

I read a lot in my spare time; sometimes my reading includes books about law. This essay discusses a number of recent books and explores how such reading can be helpful for a reference librarian. I begin with James E. Clapp et al., Lawtalk (2011), a wide-ranging book that uses colorful legal terms as springboards for discussions of legal history or policy. And then I have briefer discussions of books related to some of the topics in Lawtalk:

Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010)

Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice (2009)

David E. Stannard, Honor Killing: How the Infamous "Massie Affair" Transformed Hawai'i (2005)

Three memoirs about death penalty work:

• Andrea D. Lyon, Angel of Death Row: My Life as a Death Penalty Defense Lawyer (2010)

• David R. Dow, Autobiography of an Execution (2010)

• Ian Graham, Unbillable Hours (2010)

Mark Prothero, Defending Gary (2006)

Death Penalty Stories (John H. Blume & Jordan M. Streiker eds., 2009) and Legal Ethics Stories (Deborah L. Rhode & David Luban eds., 2006)

Shon Hopwood, Law Man

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

Tracking the Rise of Law As a Scholarly Discipline

Hans-Bernd Schaefer, Bucerius Law School, University of Hamburg, and Alexander J. Wulf, Bucerius Law School, have published Jurists, Clerics and Merchants: The Rise of Learned Law in Medieval Europe and Its Impact on Economic Growth. Here is the abstract.

Between the years 1200 and 1600 economic development in most parts of Europe gained momentum. By the end of this period per capita income in Western Europe (excluding Orthodox countries) was well above the income levels in all other regions of the world. We relate this unique development to the resurrection of Roman law, which went hand in hand with the rise of law as a scholarly and scientific discipline. In this paper we investigate two competing hypothesis on the impact of these processes on economic growth in Medieval Europe: a) that the rules of Roman law were conducive to the rise of commerce and economic growth and b) that growth occurred not as a result of the reception of substantive Roman law but rather because of the rational scientific and systemic features of the new law and its training of jurists in the newly established universities. Using data on city population as a proxy for economic growth we find that the decisive impact for economic development was not primarily the content of Roman law, but the emergence of a legal method by glossators and commentators in their interpretation and systematization of the sources of Roman law (Corpus Juris, Digests), which originally consisted of a huge collection of cases. The endeavor to extract general normative conclusions from theses sources led to abstraction, methodology, and the rise of law as a scholarly discipline. Wherever law faculties were founded anywhere in Europe jurists learned new legal concepts and skills which were unknown before and conducive for doing business.

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

Call For Papers

Call for papers from the Lavender Law Conference & Career Fair

Lavender Law 2013, San Francisco, CA
August 22-24Invitation and Call for PapersJunior Scholars Forum 

Dear Friends and Colleagues,

This year the Lavender Law® Conference & Career Fair will be held August 22-24, 2013 at the Marriott Marquis in San Francisco, CA. Lavender Law brings together the best and brightest legal minds in the lesbian, gay, bisexual, and transgender (LGBT) community.

To celebrate our community of scholars, Lavender Law® is hosting a Junior Scholars Forum again this year. If you are a junior law professor (teaching 6 years or fewer), or a recent law school graduate or fellow who is writing scholarship focusing on the nexus between the law, gender, and sexuality, we encourage you to submit a proposal for consideration. Proposals can be in the form of a full draft or in the form of an expanded abstract (approximately 1-2 pages in length).

If your proposal is accepted, you will be invited to present your work at the 2013 Lavender Law conference.

To submit a proposal for consideration, please email your submission to: scholars@lgbtbar.org, and cc: Courtney Joslin (cgjoslin@ucdavis.edu).

The deadline for submissions is June 15, 2013.

The Lure of Poetry and the Law of Punshiment

Yxta Maya Murray, Loyola Law School, Los Angeles, has published Punishment and the Costs of Knowledge, in Hearing Heaney (Four Courts Press, 2013/2014). Here is the abstract.

A too-bookish law professor doesn't know if literature has helped refine her position on the death penalty, or just turned her into an insufferable snob: An essay on elitism, bibliomania, confusion, and capital punishment.

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

Law and Trauma in the Work of Art Spiegelman

Karen Crawley, Griffith Law School, and Honni Van Rijswijk, University of Technology, Sydney, have published Justice in the Gutter: Representing Everyday Trauma in the Graphic Novels of Art Spiegelman. Here is the abstract.

Scholars working at the intersection of law and trauma have often turned to literature to supplement the law’s version of justice. In this article, we consider what the unique formal properties of comics – which we refer to here as graphic novels – might bring to this pursuit, by reference to Art Spiegelman’s Maus (1996) and In the Shadow of No Towers (2004). We suggest that these two works offer a critique of the underlying model of trauma upon which law relies, suggesting alternative understandings of trauma in a mode which is particularly instructive for law. Although Spiegelman organizes his treatment of trauma through specific events that have defined the twentieth and twenty-first centuries – the Holocaust and 9/11 – he represents the impact, as well as the ethical and aesthetic questions of these experiences, in ways that radically challenge the supremacy of the event by showing the ways in which the event fails to be contained.

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

Dr. Seuss and Children's Rights

Jonathan Todres, Georgia State University College of Law and Sarah Higinbotham, Georgia State University, have published A Person's a Person: Children's Rights in Children's Literature. Here is the abstract.

Although the Convention on the Rights of the Child is the most widely ratified human rights treaty in history, children’s rights are still seen in many circles as novel and quaint ideas but not serious legal theory. The reality, however, is that the realization of children’s rights is vital not only for childhood but for individuals’ entire lives. Similarly, although the books children read and have read to them are a central part of their childhood experience, so too has children’s literature been ignored as a rights-bearing discourse and a means of civic socialization. We argue that children’s literature, like all narratives that contribute to our moral sense of the world, help children construct social expectations and frame an understanding of their own specific rights and responsibilities. Arguing that literature is a source of law for children, we explore children’s literature with a view to examining what children learn about their own rights, the rights of others, and the role of rights more broadly in a democratic society. Using Dr. Seuss as a test case, this Article explores the role of children’s literature in children’s rights discourses. This Article also examines recent empirical work on the benefits of human rights education, connecting that research with law and literature perspectives. Ultimately, this Article aims to connect and build upon the fields of children’s rights law, law and literature, children’s literature criticism, human rights, and cultural studies to forge a new multidisciplinary sub-field of study: children’s rights and children’s literature.

The full text is not available from SSRN. 

Original Interpretation

Jack M. Balkin, Yale University Law School, is publishing Verdi's High C in the Texas Law Review (forthcoming). Here is the abstract.

This article continues the discussion that Sanford Levinson and I began over twenty years ago about the relationships between law, music, and other performing arts. It uses as its central example an actual controversy that occurred at the La Scala Opera house in December 2000, when a tenor failed to sing a high C in Verdi's Il Trovatore and the audience erupted in boos, blaming the conductor for a failure of interpretation. Maestro Riccardo Muti defended his choice on the ground that the C does not appear in Verdi's original score; however there is a long tradition of Italian tenors displaying their abilities by signing the high C, and audiences have come to expect it. In fact, one Italian music critic argued that even if Verdi had not written the high C, "it was a gift that the people had given to Verdi" -- an assertion that sounds remarkably like democratic constitutionalism.
The article proceeds through the many arguments that have been offered for and against Maestro Muti's interpretive position. They turn out to be virtually the same as the arguments that lawyers make about constitutional interpretation. This similarity is not accidental. Like (certain genres of) music and drama, law involves a text that has to be put into action by interpreters before an audience. And all three practices involve a "triangle of performance" -- an intricate set of relationships and duties between the creators of texts, the interpreters of texts, and the audiences before whom the texts are performed.
As a result, in law, music, and drama alike, there are a familiar set of styles (or modalities) of argument that participants generally use to justify their choices about how to bring a text to life, or, in the words of the American Legal Realists, to put law into action.
Not only are the styles of argument similar, but performances in law, music, and drama are also constrained by traditions and genres of performance. Just as in law, there are certain interpretations in music and drama that are "off the wall" and "on the wall" at any point in time. And, just as in law, these conventions can change over time through determined action by movements and groups.
The differences between law and the performing arts, however, are just as important as the similarities. Legal performances are usually canonical in a way that musical and dramatic performances are not. It is mandatory to interpret and apply laws in a sense in which it is not mandatory to interpret and perform artistic works like Il Trovatore. Second, at least in the United States, interpretation is hierarchically organized. If a lower court disobeys the interpretation of a higher court, a higher court has the right to reverse it. On the other hand, when Riccardo Muti decides that he is going to perform the G in the Verdi's original printed score instead of the traditional high C, his decision does not have the same effect. Nothing prevents another opera conductor from performing the high C that very same night in another opera house somewhere in the world. And if another conductor does so, there is very little that Muti can do other than criticize. In short, both the similarities and the differences between law, music and drama concern (1) how conventions of performance are organized, defended and enforced, (2) how they are embedded in institutions, and (3) how they change over time.

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

Edward de Grazia Dies

Edward de Grazia, the distinguished First Amendment lawyer, civil rights advocate, and  Law and Humanities Institute founding board member, has died. Mr. de Grazia handled important cases for publisher Barney Rosset of Grove Press, and wrote several influential books about free speech, including Girls Lean Back Everywhere: The Law of Obscenity and the Assault on Genius (Random House, 1992). Mr. de Grazia also helped found the Cardozo Law School of Yeshiva University. More here from the Washington Post. 

Henry at Canossa

Frederick Mark Gedicks, Brigham Young University Law School, is publishing True Lies: Canossa as Myth in the San Diego Law Review. Here is the abstract.

This essay is a response to Paul Horwitz, “Freedom of the Church without Romance,” to be published as part of a symposium on “The Freedom of the Church.” The essay endorses Horwitz’s central thesis that advocates of a contemporary “freedom of the Church” have overlooked historical complexities in marking the 11th-century investiture conflict between Henry IV and Pope Gregory VII, often referred to simply as "Canossa" after the small Emilian village where Henry sought absolution from Gregory, as the birth of that freedom.

The essay goes beyond Horwitz to argue that the historical account of “Canossa” presupposed by freedom-of-the-Church advocates is literally false. “Canossa,” instead, is a myth. More salient, nonmythical analogies for a “freedom of the Church” exist in U.S. constitutional history: genuine state sovereignty and dual-sovereignty federalism from the 19th century, and state dignity and native American domestic dependency from the contemporary era. These more historically accessible analogies all suggest that any “freedom of the Church” in U.S. constitutional doctrine is greatly diminished from the robust freedom argued for by those who invoke “Canossa” as that freedom’s defining moment.

But even the mythical “Canossa” remains important. Myths are stories that a society tells about itself, stories that preserve and clarify its deepest values and commitments. Like the “myth of Magna Carta” that has exerted so much influence on English and American constitutional law, “Canossa” emphasizes the dangers to liberty from a government that sees no bounds on its jurisdiction and authority. Though historically false, “Canossa” might yet be mythically true.

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

I Think That I Shall Never See...

Not exactly law-related but still interesting, Poem in Your Pocket Day demonstrates the reach of the humanities across the disciplines--this time to the STEM folks. Check out this story on Calliope's charms from the Chronicle of Higher Education.

Using Film In Con Law: Defining Religion Under the First Amendment With the Help of "Big Fan"

Jay Wexler, Boston University School of Law, has published Some Thoughts on the First Amendment's Religion Clauses and Abner Greene's Against Obligation, with Reference to Patton Oswalt's Character 'Paul from Staten Island' in the Film Big Fan, which is forthcoming in the 2013 volume of the Boston University Law Review. Here is the abstract.

In this short contribution to a symposium held at Boston University in the fall of 2012, I review Abner Greene's recent book Against Obligation by considering whether Greene's broad theory of freedom from state obligations under the Free Exercise Clause of the First Amendment would protect the maniacal New York Giants fan "Paul from Staten Island," portrayed by the ridiculously talented Patton Oswalt in Robert Siegel's hilarious film "Big Fan." I also explain how I use the film in my Law and Religion class to teach the Free Exercise Clause and the deeply perplexing question of how the word "religion" ought to be defined in the First Amendment. Any theory of the Religion Clauses that would protect Paul from Staten Island, I suggest, might be a theory worth reconsidering.

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

Dr. Seuss, Human Rights, and Self-Knowledge

Peter Nicolas, University of Washington School of Law, is publishing The Sneetches as an Allegory for the Gay Rights Struggle: Three Prisms in the New York Law School Law Review, volume 58 (2014). Here is the abstract.

Dr. Seuss’s classic children’s story The Sneetches, with its two classes of persons — the Star-Belly Sneetches and the Plain-Belly Sneetches — has been invoked by different minority groups over the years as an allegory for discriminatory treatment by the majority against that group, with a particular focus on anti-Semitism and discrimination against African-Americans. In this essay, I seek to invoke the themes found in the story as an allegory for the modern struggle for gay rights in the United States viewed through three different prisms.
The first, and most obvious, is the battle between the heterosexual majority and the gay minority represented by the Star-Belly and Plain-Belly Sneetches, respectively. The former seek to distinguish themselves from the latter through laws regarding marriage, parenting, and service in the military, as well as access to certain other markers of social acceptance, including the ability to donate blood and membership in private organizations such as the Boy Scouts.
However, The Sneetches serves as an excellent allegory for two mis-en-abîmes in the struggle for gay rights in the United States. One of these stories-within-the- story is a struggle between two different minority groups — gays and African-Americans — with some in the latter group rejecting efforts by the former to draw analogies to their own civil rights struggle. The second is a struggle between two different sub-groups of gays and lesbians — assimilationists and non-conformists — with the latter critical of what it views as insecurity on the part of the former in seeking mere formal equality by erasing valuable differences that set gays and lesbians apart from heterosexuals. Indeed, in this second struggle, some non-conformists have come out against the rights of gays and lesbians to marry or serve in the military.
In this essay, I demonstrate that in these struggles, each of these groups — African-Americans, assimilationist gays, and non-conformist gays — simultaneously internalize the discriminatory impulses of the Star-Belly Sneetches and the insecurities of the Plain-Belly Sneetches. Relying on the insights of Social Dominance Theory, I conclude that The Sneetches is not merely a story about a struggle between two different classes of people within society, but also about a struggle within each of us as individuals.

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

TV For the CEO

Bloomberg Businessweek offers up this view of the popular series "Game of Thrones." Yes, it's relevant for the boardroom, according to Logan Hill. But doesn't that suck all the fun right out of it?

TV For the Cynical

The New York Times' Alessandra Stanley on the rise of the politically-charged television series. I'll take my fictional politicos with extra scandal, please.

Victorians and the Law: Call For Papers

Simon Stern of the University of Toronto Law Faculty & English Department sent in this info:

EXTENDED DEADLINE: 10th MAY – CFA: Victorians and the Law

April 11, 2013 at 1:37 pm (Announcement, Call for contributors, Call for Papers) (10/5/13, CFA, Law,Victorian Network, Victorians)

EXTENDED DEADLINE: 10^th MAY
Call for Papers: Victorians and the Law

Victorian Network is an MLA-indexed online journal dedicated to publishing and promoting the best postgraduate work in Victorian Studies.

The eighth issue of Victorian Network, guest edited by Dr Cathrine Frank (University of New England), will take a fresh look at the interfaces between literature and legal cultures in the Victorian period. From the Reform Acts through the growth of colonial law to the establishment of divorce courts, nineteenth-century legislature shaped and responded to the same cultural developments – the rise of the middle class, industrialisation, imperial expansion, and shifting ideas about gender, to name but a few – that were also eagerly debated by literary writers. The politics and aesthetics of many nineteenth-century novelists, poets and playwrights were informed by a sustained engagement with legal debates and practices. Their works often reflected on, and sometimes challenged, the law’s construction of civic, social and gender identities, while also casting a critical (or appraising) eye over the bureaucratic apparatus on which legal practice was built.

We are inviting submissions of no more than 7000 words. Possible topics include, but are by no means limited to, the following:

-       wills, trusts and guardianship accounts: the materiality of the legal archive
-       Victorian trials, sensation and theatricality
-       criminal law, lawlessness, realist epistemologies and the detective plot
-       Victorian law and gender
-       the reaches of the law: imperialism and the legal & literary creation of colonial identities
-       intersections between genres of legal and literary writing
-       “brought up a barrister”: nineteenth-century authors, legal training, professionalization and the bar
-       radical politics, social change and the working class in Victorian literature and the law
-       debates about rights to intellectual and literary property
-       the spaces and cultural venues of legal practice

All submissions should conform to MHRA style conventions and the in-house submission guidelines. The deadline for submissions to the next issue is 10th May, 2013. Contact:victoriannetwork@gmail.com.

Using Literary Theory To Illuminate Copyright Doctrine

Zahr Said, University of Washington School of Law, is publishing Fixing Copyright in Characters: Literary Perspectives on a Legal Problem, in volume 35 of the Cardozo Law Review (2013). Here is the abstract.

Scholars have long noted that copyright in characters is fraught with uncertainty and inconsistency. This Paper argues that an interdisciplinary approach sheds light on the doctrinal confusion. Literary history, theories, and texts demonstrate that the very factors that gave rise to characters’ centrality to modern literature may be the factors that make protecting them independently under copyright difficult. The more central characters become to works of literature, the less separable they will be from those works for the purposes of receiving independent copyright protection. Literary theories of reading also suggest that characters may fail to satisfy one of copyright’s fundamental requirements: fixation. Contemporary theories of reading practices hold that reader engagement is necessary in the mental process that “completes” characters. If this is true, then in a fundamental way, while texts may be fixed, characters, outside their texts, are not.
Literature exposes the reductive nature of the law’s treatment of characters, and its simplistic view of the proper scope and implementation of independent copyright protection. The Article concludes that copyright law would do well to take account of the ways in which literary texts and theories reveal characters to be much more complicated than copyright law currently contemplates. Although literary insights into character do not themselves require either expansion or contraction of protection — dependent as reforms are on policy concerns endogenous to copyright — they do fundamentally change the nature of the inquiry. These insights expand the law’s understanding of characters and highlight theoretical and doctrinal implications of the confusion currently stymieing character protection under copyright law.
Finally, this Article comes on the heels of several very high-profile cases. The issue itself — the scope and strength of copyright in literary characters — is one that remains vital in a landscape of cross-marketing, IP licensing, and sequel-driven literary and film franchises. In the past two to three years alone, major cases have been brought, or resolved, based on Harry Potter, The Hobbit, Betty Boop, Sherlock Holmes, and Holden Caulfield of The Catcher in the Rye. Yet other than two or three excellent student notes, scholarship in this area has not been sustained or focused on this topic in over two decades. A major rethinking of the doctrines in this area is necessary, and timely. This Article aims to launch a conversation that will help to revitalize the flagging scholarly discussion in an area that is of critical importance to the entertainment, publishing, and gaming industries, as well as a crucial source of livelihood for authors and creators.

Download the full text of the article from SSRN here. 

The Mormon War of 1838

T. Ward Frampton, University of California, Berkeley, School of Law, is publishing 'Some Savage Tribe': Race, Legal Violence, and the Mormon War of 1838, in the Journal of Mormon History (forthcoming). Here is the abstract.

This paper argues for a reinterpretation of the Mormon War of 1838, during which the governor of the State of Missouri issued a formal order to "exterminate" approximately 10,000 Mormon men, women, and children. It argues that the politics of race - largely overlooked in most accounts of the hostilities - were central to the conflict on a variety of levels: fears of racial violence, stoked by perceived Mormon sympathy toward Native Americans and abolitionism, helped give rise to the conflict; Mormons gradually became racially recast as non-white leading up to the Extermination Order; and, curiously, Missourians frequently engaged in "racial masking" (wearing red and black face paint) when engaged in hostilities. It concludes by arguing that the event is significant not only as a formative moment in the history of the Mormon Church, but also as a window into the intersection of law, race, and violence on the American frontier.

Download the article from SSRN at the link. 

A New Book On Alexis de Tocqueville's View of Religion

The noted Tocquevillean Jean-Louis Benoît has published Alexis de Tocqueville: Sobre las religiones: Cristianismo, hinduísmo e islam (Madrid: Ediciones Ensayo, 2013)(Coleccion Ensayo).

The Independent Judiciary: South Africa Today and England in the Seventeenth Century

David Hulme, University KwaZulu-Natal, and Stephen Allister Pete, University of KwaZulu-Natal, School of Law, have published Vox Populi? Vox Humbug! – Rising Tension between the South African Executive and Judiciary Considered in Historical Context – Part One, in volume 15 of Potchefstroom Electronic Law Journal (2012). Here is the abstract.

This article takes as its starting point a controversy which has arisen around a proposed assessment by the South African government of the decisions of the Constitutional Court, giving rise to concerns that this will constitute undue interference with the independence of the judiciary.
Part One of this article traces and analyses the developing controversy. It then compares the current clash between the South African Executive and Judiciary to a similar clash which took place in seventeenth century England, between King James I and Chief Justice Edward Coke. Such clashes appear to be fairly common, particularly in young democracies in which democratic institutions are yet to be properly consolidated.
Although not immediately apparent, the similarities between the situation which existed in seventeenth England at the time of James I and that in present-day South Africa are instructive. In tracing the development of these two clashes between the executive and judiciary, Part One of this article lays the foundation for a more in-depth comparison in Part Two.

Download the article from SSRN at the link. 

VAP Position Available

A job announcement

Visiting Assistant Professor of American Politics- One Year Replacement
Department of Political Science, Hobart and William Smith Colleges
The Department of Political Science invites applications for a one-year, full-time visiting position in American Politics in the field of Law and Politics at the rank of Visiting Assistant Professor beginning in the Fall of 2013; Ph.D. is preferred, advanced ABD will be considered. Applications from those with a specialization in some aspect of Civil Liberties, Civil Rights, or Labor, are particularly encouraged. The ideal candidate will be able to teach a mixture of the following subjects: Public Law, Law and Society, Introduction to American Politics, and/or Political Theory. The successful candidate's work will be informed by theoretical and historical perspectives on questions important to the understanding of politics in the United States.
The Department values intellectual diversity and supports a wide range of critical and theoretical approaches that help bring people together across subfields as they address questions of power. The Department also supports interdisciplinarity in teaching and research in keeping with the Colleges' longstanding emphasis on liberal arts education. We encourage the creative development of new questions, lines of inquiry, and vectors of critique.
APPLICATION INSTRUCTIONS:
Evaluation of applications begins April 8, 2013 and will continue until the position is filled. Please send a letter of application, curriculum vitae, writing sample, graduate transcripts, a statement of teaching philosophy, and arrange to have three letters of reference sent to:
Professor Paul A. Passavant, c/o Jean Salone
American Politics Search
Department of Political Science
Hobart and William Smith Colleges
300 Pulteney Street
Geneva, NY 14456
EOE
Hobart and William Smith Colleges are committed to attracting and supporting faculty and staff that fully represent the racial, ethnic, and cultural diversity of the nation and actively seek applications from under-represented groups. The Colleges do not discriminate on the basis of race, color, religion, sex, marital status, national origin, age, disability, veteran's status, sexual orientation, gender identity and expression or any other protected status.
Hobart and William Smith Colleges are a highly selective residential liberal arts institution located in a small, diverse city in the Finger Lakes region of New York State.  With an enrollment of approximately 2,200, the Colleges offer 62 majors and minors from which students choose two areas of concentration, one of which must be an interdisciplinary program.  Creative and extensive programs of international study and public service are also at the core of the Colleges’ mission.

Paul A. Passavant
Associate Professor
Department of Political Science
Hobart and William Smith Colleges
300 Pulteney St.
Geneva, NY 14456
USA

The Supreme Court and the Native American

Kathryn Fort, Michigan State University College of Law, has published The Vanishing Indian Returns: Tribes, Popular Originalism, and the Supreme Court at 57 St. Louis University Law Journal (2013). Here is the abstract.

Writing history is perilously tricky, weighing narratives, presenting facts, and making stories. This is particularly true when the history directly affects the legal rights of a present-day community. When the Supreme Court of the United States writes history, it imbibes the narrative with both cultural and legal authority, and the story the Court creates needs to be both persuasive and perceived as factual. The Court is not a body of historians, obligated to write nuanced history. However, the Court’s opinions and factual reiterations legitimize those facts and history. Once the Court releases an opinion, the history in it achieves a high level of popular authority.
As the nation faces cultural divides over the meaning of the “Founding,” the Constitution, and who owns these meanings, the Court’s embrace of originalism is one strand that feeds the divide. The Court’s valuing of the original interpretation of the Constitution has reinforced the Founder fetishism also found in popular culture, specifically within the politics of those identified as the Tea Party. As addressed elsewhere, their strict worship of the Founders has historical implications for both women and African Americans, groups both marginalized and viewed as property in the Constitution. No one, however, has written about how the Court's cobbled historical narrative and their veneration for the Founders has affected American Indian tribes. Tribes barely exist in the Constitution, and the Founders “original” understanding of tribes was that they would inevitably disappear.
The “vanishing Indian” stereotype, promulgated in the early Republic, reaching an apex in the 1820’s, continues to influence fundamentally how the Court views tribes. Compressing history from the Founding through the Jacksonian era undermines tribal authority and sovereignty within the Court. In its federal Indian law cases, the Court relies on racial stereotypes, and popular conceptions of American history. As a result of these shortcuts, the Court folds all tribes into one large group, empties the American landscape of tribal peoples, and forces tribes into a past where they only exist to disappear.

Download the article from SSRN at the link. 

Final Call For Panelists, AALS Section on Law and Humanities, 2014 AALS Annual Meeting

From Bennett Capers, Chair, AALS & Humanities Section

Call for Panelists
AALS Section on Law and Humanities
“Law and Music”
2014 AALS Annual Meeting
January 3-6, 2014, New York, NY
Submission Deadline: Friday, March 29

There is a rich tradition of legal scholars exploring uncommon connections between music and the law.  Richard Posner, for example, has argued that understanding the authentic music movement (the insistence that period music be played with period instruments) can help us better understand, and critique, constitutional originalism.  Other scholars have noted the connection between jazz and the law, argued that music can be used to reduce crime, and explored the jurisprudence of Bob Dylan.  And of course, Paul Butler has argued that punishment theorists can learn much from hip-hop.

What are we to make of these and other uncommon connections between the law and music?  What role does the digitalization of music play in how we think about law and music?  Are there connections to be made between law and music in our legal scholarship and in our law teaching as well?  If being attentive to law and literature can make us better lawyers and scholars, what does being attentive to law and music do? And, last but certainly not least, what’s on your playlist?  This program will explore these issues with several invited panelists and panelists who are accepted through this call.

To be considered as a panelist, please submit a statement of interest by Friday, March 29, 2013, including a description (2-3 paragraphs are sufficient) of your presentation that will address one or more of the themes highlighted in the above description, and the methodology through which you will advance such themes. Please also submit an updated curriculum vitae.

Submit all materials to Professor Tamara Lawson, St. Thomas University School of Law, via electronic mail at tlawson@stu.edu

Panelists will be selected by April 15, 2013. The Section hopes to have these papers published as part of an online mini-symposium sponsored by a law review, either in print or online.  All panelists will be responsible for paying their annual meeting registration fee and travel expenses.

Full-time faculty members of AALS member law schools are eligible to submit papers. Foreign, visiting (and not full-time on a different faculty) and adjunct faculty members, graduate students, and fellows are not eligible to submit.

Prof. Bennett Capers
Chair, AALS Law & Humanities Section
Brooklyn Law School
250 Joralemon Street
Brooklyn, NY 11201

As the Court Considers Prop 8 and DOMA

From the Washington Post, a survey of gays and lesbians in pop culture.

Law and Trauma, Seen Through Graphic Novels

Karen Crawley, Griffith Law School, and Honni Van Rijswijk, University of Technology, Sydney, have published Justice in the Gutter: Representing Everyday Trauma in the Graphic Novels of Art Spiegelman. Here is the abstract.

Scholars working at the intersection of law and trauma have often turned to literature to supplement the law’s version of justice. In this article, we consider what the unique formal properties of comics – which we refer to here as graphic novels – might bring to this pursuit, by reference to Art Spiegelman’s Maus (1996) and In the Shadow of No Towers (2004). We suggest that these two works offer a critique of the underlying model of trauma upon which law relies, suggesting alternative understandings of trauma in a mode which is particularly instructive for law. Although Spiegelman organizes his treatment of trauma through specific events that have defined the twentieth and twenty-first centuries – the Holocaust and 9/11 – he represents the impact, as well as the ethical and aesthetic questions of these experiences, in ways that radically challenge the supremacy of the event by showing the ways in which the event fails to be contained.

Download the paper from SSRN at the link. 

The Portrayal of Crime in Hindu Films

Karthik Suresh, National Academy of Legal Studies and Research (NALSAR) University, has published 'Apaharan' and the Making of a Criminal - Portrayal of Crime by Popular Hindi Cinema. Here is the abstract.

Apaharan, released in 2005, is a movie based on the kidnapping ‘industry’ that operates in Bihar even today. In this movie, the well-known actor Ajay Devgn plays a young, out-of-work salesman, who applies for a post in the State Police. He clears the merit list, but is asked to pay a bribe of 5 lakh rupees. Just before his selection, major differences crop up between Home Minister Dinkar Pandey and Ajay’s father, with the latter threatening to expose the corruption within the State Ministry. Dinkar ensures that Ajay's name is dropped from the shortlist, and the money-lender sends his goons after him, giving him 3 days to come up with the money. A desperate Ajay decides to be part of the lucrative kidnapping scheme in Bihar, abducts a Government official and demands a ransom so that he can re-pay his loan. The story then goes on to show Ajay’s rise in the kidnapping industry, reaching his zenith as the kingpin of the industry. His eventual downfall is shown, as differences crop up later in the story with his mentor Tabrez Alam (played by Nana Patekar).

What I am to focus on, in this paper, is the construction of crime which leads to Ajay Devgan becoming wanted for cases of kidnapping, extortion and murder. What is described as ‘making of a criminal’, and the criminology-related aspect of the commission of the crime, is to be discussed in this paper. This, shall be spoken about in the light of popular Hindi cinema which have represented crime and criminals in various shades. The researcher is to use various models of criminology, including Engels' model of construction of crime, as also other criminological discourses about how a 'criminal mind' takes shape. This is to be connected to Apaharan in particular, but research would also be done into other Hindi movies, Vaastav, Deewar (Amitabh Bacchan's role in that movie) etc.

A society's perception of crime and the making of a criminal could be well-understood by the cinema it produces. Hindi cinema, being the lingua franca of this country, could well give an opportunity to look into Indian society's perception of how a criminal is made. Through Apaharan, the researcher aims to gauge the idea of crime and the 'making of a criminal' in the Hindi film industry.

Download the paper from SSRN at the link. 

The Spanish Legal Influence In West Florida

Sean Patrick Donlan, University of Limerick, is publishing Entangled Up in Red, White, and Blue: Spanish West Florida and the American Territory of Orleans, 1803-1810, in Entanglements in Legal History: Conceptual Approches To Legal History, I Global Perspective on Legal History -- (Thomas Duve ed.; Max Planck Institute for European Legal History 2013). Forthcoming.

This article is a preliminary case study of legal and normative entanglement in Spanish West Florida — which stretched across the Gulf Coast of present-day Louisiana, Mississippi, Alabama, and Florida — between 1803-1810. Between the time of the Louisiana Purchase (1803) and the annexation of Westernmost part of West Florida by the United States (1810), the laws and norms of the Territory criss-crossed in various ways those of Spain and the United States. Indeed, the territory was, in turn, French, British, and Spanish before being annexed, in part, by the Americans. For the period under study here, and decades before, its settlers were largely Anglophone, while its laws were a variant of the Spanish colonial ius commune. West Florida had an especially close relationship with the area that would become the new American Territory of Orleans (1805), especially the city of New Orleans. Carved out of the vast Louisiana Territory purchased from France, the Territory of Orleans had its own complex history. Its population was still largely Francophone. In its first decade, its laws were already a gumbo of continental and Anglo-American ingredients. Together, the two territories sat at the precipice of the modern nation-state, of nationalism and popular sovereignty, of legal positivism and legal formalism. In both territories, the diffusion — direct and indirect, formal and informal, ongoing and sporadic — of the various laws and norms of natives and newcomers created intricate legal and normative hybrids.

Download the essay from SSRN at the link.

Mr. Mom

Beth Burkstrand-Reid, University of Nebraska, Lincoln, College of Law, has published Dirty Harry Meets Dirty Diapers: Masculinities, At-Home Fathers, and Making the Law Work for Families, in volume 22 of the Texas Journal of Women and the Law (2012). Here is the abstract.

Who is the 'man'? Implicit in this question is whether the man at issue demonstrates traits traditionally associated with masculinity: traits such as power, rejecting all things associated with being female, aggression, and being the family breadwinner. If a man, then, abandons paid work and stays at home full time with his children, is he still a 'man' as typically defined? The answer to this question bears both on whether families are truly evolving away from the traditional, gendered construct that places men as family breadwinners and women as caregivers and whether work-family balance law meets the needs of these - and all - families.
This article analyzes 425 media stories about at-home fathers written over an eight-year period. Specifically, it looks at whether these fathers accept or reject socially constructed notions of masculinity. The results suggest that some at-home fathers adapt their behavior in ways that allow them to function as primary caregivers while keeping their masculinity intact. As masculinity appears to be salient even to gender-subversive fathers, understanding these adaptive strategies is important to making work-family balance law more responsive to all fathers.

Download the article from SSRN at the link. 

Female Judges On TV

Greta Olson, Justus-Liebig-Univeristy Giessen, is publishing Intersections of Gender and Legal Culture in Two Women Judge Shows: Judge Judy and Richterin Barbara Salesch, in Contemporary Gender Relations and Changes in Legal Cultures (Hanne Petersen, Jose Maria Lorenzo Villaverde, and Ingrid Lund-Andersen, eds., Copenhagen: DJOF, forthcoming).

This essay departs from the thesis that the connections between legal culture and gender have not yet been adequately addressed or theorized. Whereas a lively debate has ensued about the meaning and applications of Lawrence M. Friedman’s introduction of the concept of legal culture as a prism for scrutinizing a given socio-legal cohort, relatively little attention has been given to the question of how legal cultures are affected by categories of difference, including those of gender, ethnicity, class, disability, and age. By attending to the gender work performed by two ‘reality’ women judge shows, one US American and one German, this essay aims to further the conversation about how gender interacts with other categories of identity in legal settings.

The full text is not available from SSRN. 

Communicating Scientific and Technical Information In Court Effectively

Jonathan J. Koehler, Northwestern University School of Law, is publishing Linguistic Confusion in Court: Evidence from the Forensic Sciences, in the Journal of Law and Policy for 2013. Here is the abstract.

This paper, which was presented at the Authorship Attribution Workshop at Brooklyn Law School, addresses issues related to how scientific and technical information should and should not be communicated in court. This issue has special relevance for authorship attribution testimony and forensic linguistics more generally. Because confusion in the DNA and fingerprint areas has been documented and is relatively common, the paper focus largely on linguistic problems in DNA and fingerprint expert testimony in hopes that forensic linguists can avoid the testimonial traps and errors that plague these forensic scientists. Section I examines DNA match statistics and describes the confusion that legal actors experience when dealing with conditional probabilities. Section II examines statistical inverse errors in the 2010 U.S. Supreme Court case McDaniel v. Brown. Section III examines a seductive, but faulty, statistical assumption that commonly arises in paternity cases. Section IV examines the role of error rates in forensic sciences and concludes that identifying those error rates is particularly important in fields that rely on highly discriminating statistical techniques. Section V offers an illustration of the crucial role ill-defined language can play in a legal proceeding. Standard and precise terms are recommended. The paper concludes with a section identifying implications for the forensic linguistics and authorship attribution communities. This paper is forthcoming in the Journal of Law and Policy.

Download the article from SSRN at the link. 

Legal Education and the Value of Comparative Law

Christopher L. Blakesley, University of Nevada, Las Vegas, School of Law, is publishing Law, Language, Crime, and Culture: The Value and Risks of Comparative Law, forthcoming in volume 49 of the Criminal Law Bulletin. Here is the abstract.

Words, language, culture, and literature are so important to us human beings that it should come as little surprise that they are part of our law. This article considers language and law in general with a focus on issues of criminal justice, both domestic and international. I examine how and why comparative law is valuable in a criminal procedure course, and generally for domestic and international criminal justice. My examination begins by looking back to our common roots in crime, punishment, and expiation, with a special focus on the role of torture and its impact on current criminal justice systems.

Comparative law also serves as a springboard from which to ponder law and philosophy in the context of a basic or advanced criminal procedure course. International criminal courts provide a useful example of the value and challenges of comparative law because they are actually experiments in mixing legal systems and procedures as they function in the arena of international law. Although wholesale or simplistic borrowing is wrong and often harmful, carefully comparing how disparate systems resolve similar problems is most helpful. To elucidate this, I use the examples of “verdict” and “to represent.” They look the same on paper, but manifest quite differently in practice in America and in Europe — prime examples of why comparative analysis can be so illuminating.

 It should not be surprising that comparative analysis is crucial to courses or parts of courses in international or transnational criminal law, as functionally, those are mixed systems — requiring a mixture of international law and domestic law or of international law and that of two or more domestic legal systems. This is especially so in international law, which functions as a mixed jurisdiction essentially comprised of Romano-Germanic and Common Law elements and approaches. Those who understand and can work with both the Romano-Germanic and the Common Law systems will be more able to understand the nuances of international law, its methods, analytical style, and sources. This will help them succeed in practice, scholarship and teaching.

This article and the benefits of comparative analysis apply to the study of most subjects in any legal system. My points apply to practitioners, students, policy makers, judges, human rights activists, and many more professions, especially as the world shrinks. Comparative analysis of the sort I suggest herein provides a deeper understanding of the subject, in addition to some understanding of foreign systems. Law is at least partially a form of language; it arises from the culture and language of the various nations and peoples of the world. Comparative study is more than a leisure activity. It provides insight into law (even one’s own, in its deepest cultural sense) and a more transparent prism through which to understand law, culture, and language, including one’s own law, culture, and language, acting like a perfect prism through which we perceive not merely a white light (a country’s legal system), but all the colors that are essential parts (culture and language) of that white light. Revealing those colors — those essential parts — allows us to analyze and compare them and gain a far deeper understanding of a country’s legal system.

To be sure, law is more than just language, but its essence has many of the characteristics and fullness, including the cultural imprint, that a language has. Perhaps, too, there is a spiritual or cosmological element to law, language, and scholarship. I use the term "language" not only its usual sense of the words we use to speak and write, but also as a metaphor for law as language which includes all the cultural depth that imbues language with its soul or spirit.

Download the article from SSRN at the link. 

Thinking About Law

Hanoch Dagan, Tel Aviv University Buchmann Faculty of Law, has published Law as an Academic Discipline. Here is the abstract.

Is law an autonomous academic discipline, distinct and isolated from neighboring fields? Or is it merely an object of academic research that borrows its conceptual framework from the humanities or the social sciences? The choice between these two alternatives — and a possible third, middle position — is important both in itself and as the foundation of a critical analysis of specific institutional arrangements concerning such issues as professional associations, specialized journals, and, most notably, advanced legal education. This essay investigates the two extreme alternatives of autonomy and assimilation, and offers a preliminary account of a midway position, claiming that relevant lessons from the social sciences and the humanities are always potentially relevant to law but never exhaust the theoretical inquiry of it.
Past as well as current theories of law’s autonomy do not fully account for the necessary extra-doctrinal underpinnings of legal materials, nor do they sufficiently appreciate the justificatory burden entailed by the prospective effects of every significant legal pronouncement. These shortcomings, however, do not imply the collapse of law as an academic enterprise robust enough to justify a separate category. Using the theories and methods of other disciplines definitely enriches our understanding of law, but these helpful exercises never suffice because they do not pay appropriate attention to the nature of law as a set of coercive normative institutions and, furthermore, tend to fragment rather than synthesize the interdisciplinary lessons of law. Legal theory compensates for both these limitations by focusing on the work of society’s coercive normative institutions and through its synthetic character.
Legal theory studies the traditions of these institutions and the craft typical of their members, while continuously challenging their outputs by demonstrating their contingency and testing their desirability. When performing these tasks, legal theory necessarily resorts to law’s neighboring disciplines. At its best, however, legal theory is more than a sophisticated synthesis of relevant insights from these friendly neighbors, because legal theory is consciously reflective on persistent jurisprudential questions regarding the nature of law, notably the relationship between law’s normativity and its coerciveness, given law’s institutional and structural characteristics.

Download the paper from SSRN at the link. 

Mayor To Judges: Watch Movies and Learn Your Craft

Huang Qifan, mayor of the Chinese city of Chongquig, says judges should look to Hollywood films for assistance in making judicial determinations. During a panel discussion at the National People's Conference in Beijing on March 18, the mayor noted that the heroes of action movies represent good, which wins out over evil. A visceral example of the reach of popular culture into the bastions of power. More here from the Hollywood Reporter.

The Creative Judiciary

Google's Scholar Blog offers up some links to some entertainingly written court cases, including Rimes v. Curb Records, "written as a series of songs to be sung by Rimes," and Pennsylvania v. Dunlap, delivered in the style of Raymond Chandler. Hooray for judges with a sense of humor.

The Pope On the Screen

A day after the Catholic Church welcomed Cardinal Jorge Bergoglio as Pope Francis, the Hollywood Reporter offers us this look at famous fictional popes. One commenter points out that it omits two legendary actors as two legendary Pontiffs: Rex Harrison as Julius II in The Agony and the Ecstacy and Sir John Gielgud as Pius XII in The Scarlet and the Black. I note that it also omits the wonderful Sir Alec Guinness as Innocent III in Brother Sun, Sister Moon, and the iconic Peter O"Toole as Paul III in the Showtime series The Tudors. Which pop culture representations of the Bishop of Rome are your  favorites?

Shakespeare's Lessons On Law

Harold Anthony Lloyd, Wake Forest Univesrity School of Law, has published Let's Skill All the Lawyers: Shakespearean Lessons on the Nature of Law, at 11 Vera Lex 33 (2010). Here is the abstract.

Shakespeare's works present intriguing explorations of law and legal theory. They help demonstrate the flaws in command-theory positivism, natural law theory and prediction theory accounts of the law. This is a simultaneously-published abbreviated version of a longer article published in Acta Iuridica Olomucensia in 2010.

Download the article from SSRN at the link. 

Dostoyevsky's Legacy

Brian Christopher Jones sends me this post from the blog Misleading Law of the Week. It discusses the Crime and Punishment (Scotland) Act, 1997. Dr. Jones points out that the name of the Act recalls the title of Fyodor Dostoyevsky's classic work Crime and Punishment. Notes Dr. Jones:

When Fyodor Dostoyevsky penned his classic text Crime and Punishment in 1866, he probably never thought that its title would be attached to pieces of legislation or be so culturally prevalent. Over a century later, however, the Westminster Parliament enacted the Crime and Punishment (Scotland) Act 1997, thus inscribing the provocative name of the author's novel into the UK statute book. While the phrase "crime and punishment" has become ubiquitous in popular culture throughout the years, placing it as the title of an official piece of legislation is much different than putting the label on a video game or as the title to a Dawson's Creek episode...or, so it would seem. 

Thomas Nast's Cartoons

Renee Lettow Lerner, George Washington University Law School, has published Thomas Nast's Crusading Legal Cartoons, at 2011 Green Bag Almanac 59-78 (2011). Here is the abstract.

The cartoonist Thomas Nast (1840-1902) was in his heyday a political institution, with each of his pictures helping to form public opinion. His influence reached its height in the late 1860s and early 1870s with his relentless caricatures of Boss Tweed and the Tammany Hall Ring in New York City. One part of Nast’s work not often highlighted but as brilliant as the rest is his legal cartoons. Nast’s best work was done with high moral zeal, and his satire of lawyers and the legal system was no exception. His attacks grew out of frustration with the ineffectiveness of legal remedies against the Ring. He was especially incensed that prominent lawyers such as David Dudley Field not only were willing to represent members of the Ring, but could cleverly exploit legal technicalities of their own making to win advantage. Nast excoriated the corruption and bribery of the bench by the Ring, and also, more generally, the adversarial system as it was developing in America.

Download the article from SSRN at the link. 

Fun With Tax Laws?

From the Yale Law Library: an exhibit of the work of  Joseph Hémard (1880-1961), who managed to turn out a lot of interesting stuff, including, yes, illustrations for a tax code, now in Yale's Law Library collection. Mull over that on April 15th.

"The Wire" As a Critique of the U.S. Political System

John Denvir, University of San Francisco School of Law, has published Watching Television Can Change the World: "The Wire" as Critique, Part I.  Here is the abstract.

Popular culture can have political impact. "The Wire" is not only engrossing melodrama; it also tells a compelling story of how and why the American political system fails us. Because a television series like "The Wire" not only appeals to a much broader audience than traditional political arguments, but also transforms abstractions into concrete images aimed at both our hearts and our minds, it can play a major role in efforts to change the world for the better.

Download the paper from SSRN at the link.