January 22, 2015

Amherst College Press Announces a New Series Devoted to Law, Literature, and Culture

Announcement of a new publishing initiative:

Laws | Literatures | Cultures
Austin D. sArAt series editor 
Editorial Advisory Board:
Peter Brooks Princeton University
susAn sAge HeinzelmAn University of Texas at Austin
BernADette meyler Stanford University
rAvit reicHmAn Brown University
eric slAuter University of Chicago

The crossroads of  legal scholarship and literary criticism has, over more than forty years of  writing and research, become a busy intellectual intersection. As a ground of  inquiry, law and literature has transformed from a novel set of  proposals to a mature field of  study and writing, with well-established perspectives and positions, courses offered for both undergraduates and law students, and the emergence of  its own journals. Writers who have shaped the field include legal and political theorists, jurists, literary scholars, ethnographers, and historians.

Despite these accomplishments it remains the case, as Kenji Yoshino observed nearly ten years ago, that “law and literature has been caught in limbo for a particularly long time.”1 The early division in the field between law- in-literature and law-as-literature has been exhaustively explored. The time is ripe for the encouragement and
development of  new approaches in the field, pathways offering the possibility of  greater insights and new analyses of challenges confronting societies in a variety of  cultures and legal orders.

Laws, Literatures, and Cultures, a new series supported by the Amherst College Press, will provide a forum for this work. As a digital-first, open-access scholarly publisher, the Amherst College Press offers scholars working at the intersections of  these questions new tools for supporting research and publishing—and the potential of  greatly increased impact through immediate and unfettered access to titles we produce.

In our new series, we are seeking work that will set law, literature, and culture in new dialogues, exploring the textual dimensions and cultural work of  law and the legal frameworks of  literature. Law and literature have for millennia been closely allied, as means of  persuasion and the creation of  cultural norms.  Seting law and literature in juxtaposition permits a mapping from one to the other that often produces startling and important results. In addition, we seek work that draws literary, legal, and/or cultural analysis together in the serviced of  exploring and understanding specific social and political problems and that attends carefully to the exploration of  history.

We also seek work expanding the consideration of  these questions to cultural settings, literary traditions, and legal systems outside the common law. Of  particular interest are works that define and argue a thesis drawing on both textual and non-textual sources for which a multimodal, digital presentation offers unique expressive power.

Laws, Literatures, and Cultures will entertain proposals for works of  all forms, from longer, traditional monograph- length studies to collections of  shorter works. We are open as well to projects with no clear parallel in the print tradition. In the case of  all our works we will subject submissions to a rigorous process of  peer review and evaluation.. Upon release, works will be supported by the Press’s commitment to creating pathways to annotation and comment from the community of  scholars and students engaging with our work. While developed in the first instance as web-based and downloadable digital works, books in the series will also be prepared and released as printed works through a print-on-demand pathway.
For information: acpress@amherst.edu






1 Kenji Yoshino, “The City and the Poet,” Yale Law Journal 114 (2005), 1837.

They're Here......

Peter H. Huang and Corie Lynn Rosen, both of the University of Colorado Law School, are publishing The Zombie Lawyer Apocalypse in the Pepperdine Law Review (forthcoming). Here is the abstract. 

This article uses a popular cultural framework to address the near-epidemic levels of depression, decision-making errors, and professional dissatisfaction that studies document are prevalent among many law students and lawyers today.
Zombies present an apt metaphor for understanding and contextualizing the ills now common in the American legal and legal education systems. To explore that metaphor and its import, this article will first establish the contours of the zombie literature and will apply that literature to the existing state of legal education and legal practice — ultimately describing a state that we believe can only be termed “the Zombie Lawyer Apocalypse”. The article will draw parallels between the zombie state of being — the state of being mindless, thoughtless, and devoid of hope — and the state of some aspects of legal culture and legal education today.
This article will then offer solutions to the problem of legal zombies. Those solutions draw on the positive psychology literature and include 1) mindfulness, 2) a shift in attribution style (the way people think about their experiences), 3) reliance on core strengths, and 4) an effort to developing meaning in work and life. Through the application of these and other interventions, we believe it may be possible to stem the tide of lawyer and law student distress and dissatisfaction and protect future students and lawyers from falling prey to the Zombie Lawyer Apocalypse.
Download the article from SSRN at the link. 

January 21, 2015

Saul's Calling

The Hollywood Reporter has posted this review of the Breaking Bad spinoff Better Call Saul.

Culturomics

Jamie Trinidad, University of Cambridge, has published 'Culturomics' and International Law Research as EUROPEAN SOCIETY OF INTERNATIONAL LAW 10th Anniversary Conference, Vienna, 4-6 September 2014, Conference Paper No. 3/2014. Here is the abstract.

 'Culturomics' is the study of culture through the analysis of millions of digitized texts. It has been pioneered in recent years by a team of Harvard researchers working in conjunction with the Google Books project, which has digitized a significant proportion of all the books ever published. A research tool known as the Google Ngram Viewer allows researchers to search the Google Books database for the occurrence of words and phrases over time. This tool can be used to gain fascinating insights into the cultural phenomena that the words and phrases encode, including - this paper suggests - the types of cultural phenomena that international lawyers are interested in. The paper seeks to illustrate the value of culturomics for international law researchers, and to stimulate ideas for future research. It also highlights some of the problems and pitfalls that accompany cultoromic analysis.
Download the paper from SSRN at the link. 

Law, Emotion, and the Antebellum Constitution

Doni N. Gewirtzman, New York Law School, has published 'Vital Tissues of the Spirit': Constitutional Emotions in the Antebellum United States, in The Ashgate Research Companion to Law and the Humanities in Nineteenth-Century America (Nan Goodman & Simon Stern, Ashgate, 2015). Here is the abstract.

This Chapter provides a framework for examining the ambivalent and reciprocal relationship between emotions and constitutional law through three interrelated lenses: text, instrument, and symbol. In the years before the Civil War, discourse about feelings impacted institutional struggles for interpretive supremacy over the constitutional text, affected the Constitution’s ability to function as a legal mechanism for emotion management, and shaped its status as a national symbol.

Download the essay from SSRN at the link. 

Law, Literature, and the Humanities Association of Australasia Conference, December 9-12, 2015


From Dr. Honni van Rijswijk, Senior Lecturer, Faculty of Law, University of Technology, Sydney, news of an interesting conference, planned for December 9-12, 2015:


Law, Literature and the Humanities Association of Australasia Conference
 University of Technology Sydney Law School, Sydney, Australia
Dates: 9-12 December 2015
(with 9 December as a postgraduate day)
 Complicity is a state of being complex or involved, and no matter where we are, or what we do, law is part of our entanglement in the world. This conference will explore law’s complex relations with culture, politics and capital. It will investigate law as an accomplice, as well as law’s role in shaping (and resisting) certain problematic moral, political and material positions.
 The LLH Association of Australasia invites scholarly and creative research from academics and graduate students working at the intersection of law and the humanities, whether based in legal theory or in disciplines such as literature, art, film, music, history, continental philosophy, anthropology, psychoanalysis, visual culture, or cultural studies. Contributions may take a variety of forms from traditional academic papers to poster presentations, video, or other genres or media.
 The conference invites consideration of the following questions:
 • What does complicity reveal about law’s methods and modes, its affects and effects?
 • How are law’s genres, narratives, processes and images complicit in the creation of particular imaginaries, materialities and practices of the everyday?
 • How might we work within visual, narrative, creative and textual domains and devise strategies to reveal and counter law's complicities, and acknowledge our own?
 We ask you to make your own interpretation of the theme ‘Complicities,’ and invite scholars from a range of disciplines to propose papers, complete panels and streams. Proposals should consist of a short abstract (max. 250 words). Please email your abstract to llh@uts.edu.au. Please include your name and the word Complicities in the subject line.
 Deadline for Stream Proposals: 31 March, 2015
 Deadline for Paper and Panel Proposals: 1 May 2015
 For all conference information including on-line registration, check our web site at this address: http://www.law.uts.edu.au/llhaa And for further information, contact the Co-convenors, Dr Honni van Rijswijk and Associate Professor Penny Crofts.
 

January 20, 2015

Copyright, Romance Writing, and Gender

Rebecca Tushnet, Georgetown University Law Center, is publishing The Romantic Author and the Romance Writer: Resisting Gendered Concepts of Creativity in Diversity in Intellectual Property (Irene Calboli & Sridlhya Ragavan, eds.; Cambridge University Press (2015). Here is the abstract.

Dominant narratives of creativity regularly expect female-associated forms of creativity to be provisioned naturally without need for the economic incentives provided by exclusive rights, just like housework and childcare. Even as the concept of Romantic authorship has come under sustained analytic assault, its challengers often look elsewhere – to the kinds of creativity in which men are more likely to participate – to find models of situated, always-influenced authorship. In this chapter, I examine one variant of the problem, in which certain arguments about copyright discount the value of forms that are predominantly produced and enjoyed by women. But creative works in these oft-denigrated genres, such as media fandom, open up new possibilities in sexual and gender relations, and women learn to see themselves as valuable speakers by becoming creators. As a result, increasing the visibility of women’s creative works, including explicitly transformative works based on specific copyrighted predecessors, is an important part of rejecting the fetishization of Romantic authorship and valuing diverse kinds of creativity.
Download the essay from SSRN at the link.

Commentaries on "Reading Law"

Micro-Symposium on Scalia & Garner's 'Reading Law', 18 Green Bag 2d 105 (2014). Here is the abstract.

Recently, the Green Bag issued a call for short (1,000 words) essays on Reading Law: The Interpretation of Legal Texts, by Antonin Scalia and Bryan Garner. We sought “[a]ny theoretical, empirical, or practical commentary that will help readers better understand the book.” The result is this micro-symposium. Our call drew dozens of micro-essays, some thought-provoking, some chuckle-prompting, and some both. Blessed with an abundance of good work but cursed by a shortage of space, we were compelled to select a small set – representative and excellent – of those essays to publish in the Green Bag and its sibling publication, the Journal of Law. We regret that we cannot do full justice to the outpouring of first-rate commentary we received. May you enjoy reading the following excellent representatives as much as we did.

Download the papers from SSRN at the link. 

Shouting Fire, Theaters, and Constitutionally Protected Speech

Carlton F. W. Larson, University of California, Davis, has published 'Shouting Fire in a Theater': The Life and Times of Constitutional Law’s Most Enduring Analogy, as UC Davis Legal Studies Research Paper No. 415. Here is the abstract. 

In 1919, Justice Oliver Wendell Holmes introduced the specter of a man falsely shouting fire in a theater into First Amendment law. Nearly one hundred years later, this analogy remains the most enduring analogy in constitutional law. It has been relied on in hundreds of constitutional cases and it has permeated popular discourse on the scope of individual rights.
This Essay examines the both the origins and the later life of Holmes’s theater analogy. Part One is a detective story, seeking to solve the mystery of how Holmes came up with this particular example. This story takes us to the forgotten world of the late nineteenth and early twentieth centuries, when false shouts of fire in theaters were a pervasive problem that killed hundreds of people both in the United States and Great Britain. The person who shouted “fire” in a crowded theater was a recognizable stock villain of popular culture, condemned in newspapers, magazines and books from coast to coast. The analogy, lifted by Holmes from a federal prosecutor in Cleveland, was rooted in this larger world of popular culture. Understanding this world also answers another question: Why do lawyers and non-lawyers alike refer to “shouting fire in a crowded theater” rather than “falsely shouting fire in a theater and causing a panic,” which is what Holmes actually wrote? Along the way, we will encounter a real detective and even a mustachioed villain.
Part Two is based on an empirical study of the 278 subsequent judicial opinions that employ the theater analogy. In lower courts, opinions that invoke the analogy, not surprisingly, typically reject free speech claims, but opinions that paraphrase Holmes are, counter-intuitively, more receptive to free speech claims than opinions that quote Holmes precisely.

The Essay concludes by noting that the theater analogy has largely lost its capacity to frighten in the visceral way that Holmes’s audience would have understood it. Although it persists in constitutional law, it has become rarified and largely abstract, perhaps contributing in some small way to the general libertarian trend of modern First Amendment law.

An intriguing piece.

Download the paper from SSRN at the link. 

January 16, 2015

Calderon de la Barca's El Medico de su Honra, Reputation, and the Criminal Law

José Palacio González, Court of Justice of the European Union, has published El Médico de su Honra (The Doctor of his Own Honor) by Calderón de la Barca: The Honor as a Cause of Exemption of the Penal Responsibility in the Baroque Spain, in volume 4, no. 6 of Oñati Socio-Legal Series, Vol. 4, No. 6, 2014.

Here is the abstract. English Abstract: The notion of honor or reputation is at the very core of the Spanish theatre in the baroque period. This fact could not be correctly understood without taking into consideration the obsession about purity of blood, having got a relevant influence in the Spanish society daily life since the expulsion of the Jewish population and the taking over of Grenade in 1492, as well as the first rank role played by the clerical and political power against the reform movement into the Church. One additional element that should be included into this general frame of reference is the structural inability of the Spanish economy to take off, after the end of the middle-age, in a process leading to a beginning of industrial revolution, with the subsequent assumption of modern values that necessarily would come out of that process. The most telling example of the importance of the idea of honor in the Spanish baroque theatre is, with no doubt, The Doctor of his own honor (El medico de su honra), by Calderón de la Barca, which plot turns around the announced death of an innocent lady suspicioned of adultery, just because of an unhappy sets of events. In the play the jealousy is less determinant for the purpose of the plot that the need for the husband to eliminate any element of uncertainty, as far as his reputation is concerned. The King understands the husband’s motivation and forgives him. Such a conception of honor has left, till very recent times, a major mark in the evolution of the Spanish society, even at a legislative level.

Spanish Abstract: El concepto de honor o reputación es un elemento fundamental en el teatro barroco español. Este hecho no se puede entender correctamente sin tener en cuenta la obsesión por la pureza de sangre, concepto con una influencia relevante en la vida cotidiana de la sociedad española desde la expulsión de la población judía y la conquista de Granada en 1492, así como por el papel fundamental desempeñado por el poder clerical y político contra los movimientos de reforma en la Iglesia. Un elemento adicional que debe incluirse en este marco de referencia es la incapacidad estructural de la economía española para iniciar, al término de la Edad Media, un proceso capaz de establecer las bases de una revolución industrial, con la consiguiente asunción de los valores modernos que necesariamente traería consigo ese proceso. El ejemplo más elocuente de la importancia de la idea de honor en el teatro barroco español es, sin duda, la obra de Calderón de la Barca El médico de su honra, cuya trama gira en torno a la muerte anunciada de una dama sobre la que, a pesar de su inocencia, recae la sospecha de adulterio, únicamente por una serie de hechos desafortunados. En la trama general de la obra los celos juegan un papel menos determinante que la necesidad del marido de eliminar cualquier elemento de duda, en lo que respecta a su reputación. El rey entiende la motivación del marido y lo perdona. Semejante concepción del honor ha dejado, hasta tiempos muy recientes, una marca importante en la evolución de la sociedad española, incluso a nivel legislativo.


Download the article from SSRN at the link.

January 15, 2015

USA Network Benches "Benched"

USA Network has canceled the legal comedy Benched.  Yes, I can hear you making jokes about this one now. The show, starring Eliza Coupe and Jay Harrington, revolves around a corporate lawyer who loses her job and ends up practicing as a public defender. The website has links to complete episodes.

January 14, 2015

Postdoctoral Fellowships Available at Indiana University--Bloomington

From Ethan Michelson, Department of Sociology, Associate Professor and Director of Graduate Studies, and Director of the Center for Law, Society, and Culture at the Indiana University Maurer School of Law, comes this announcement of the:


Jerome Hall Postdoctoral Fellowship at Indiana University-Bloomington
     
Application deadline extension: Friday, February 6.

The Indiana University Center for Law, Society, and Culture will appoint two post-doctoral fellows for the 2015-16 academic year. We invite applications from scholars of law, the humanities, or social sciences working in the field of sociolegal studies. Pre-tenure scholars, recently awarded PhDs, and those with equivalent professional degrees are encouraged to apply. Advanced graduate students may also apply, but evidence of completion of the doctoral degree or its equivalent is required before beginning the fellowship.

Fellows will devote a full academic year to research and writing in furtherance of a major scholarly project, and will receive a stipend plus a research allowance, health insurance, other benefits, and workspace at the Indiana University Maurer School of Law. They will conduct research at Indiana University and participate in the activities of the Center, which include an annual symposium, a colloquia series, and regular workshops and lectures. (The term of the appointment will be 10 to 12 months, beginning August 1, 2015. The amount of the stipend will be the same regardless of the duration of the appointment.)

For more information about how to apply, please visit: http://www.law.indiana.edu/centers/lawsociety/postdoctoral-fellowship.shtml


A Symposium on the Abolition of War

From Richard Weisberg, President of the Law and Humanities Institute, comes this announcement of a two day symposium on the topic:

WHY HAS WAR NEVER BECOME A TABOO?  This topic and others connected to the experience of war will be explored at a 2-day symposium called "The Abolition of War". Speakers on the first day include Elaine Scarry, Mark Kurlansky, Richard Weisberg, and Stanley Fish. The event will take place at the Cardozo Law School, Moot Court Room, beginning at 9:30 and ending at around 3. It will include lunch to all in attendance as well as an extensive Q & A on the subject involving the audience inter-actively. The remaining panels, which will take place on Feb 21 at the Rutgers Law School in Newark (easily available by Path train from NYC), include "War and Art: Do They Need Each Other?", "Promoting the Alternative to War (or peace-making for Fun and Profit", and a Musical Interlude with talks and performances relating to the theme of Abolition and Pacifism. Speakers include Sarah Cole, Brian Soucek, Paul K. Saint Amour, and Ekow Yankah; Maria Stephan, Krzysztof Wodiczko, and Michael Braff. Performers include Eleanor Cory and Idith Korman, with Cheryl Weisberg singing some folk songs from the French and American traditions. RSVP for further details to ellii.cho@law.cardozo.yu.edu.

The event is organized by the Law & Humanities Institute, the Rutgers Law School, and the Jacob Burns Foundation and the Institute of Holocaust and Human Rights Studies of the Cardozo Law School.

January 13, 2015

Defining Law

Brian Z. Tamanaha, Washington University in Saint Louis School of Law, has published What is Law? as Washington University in St. Louis Legal Studies Research Paper No. 15-01-01. Here is the abstract.

Theorists who tackle “What is law?” usually acknowledge the difficulty of the question, then, with hardly a pause, launch into their proposed answer. Instead, focusing on three main categories of concepts of law, I examine in detail why previous attempts have failed to achieve a consensus. Several factors have contributed. One source of disagreement involves clashes among intuitions about law. Further problems are created by the narrowness of functional analysis, on which nearly all concepts of law are based. Confusion also arises because law shares basic characteristics with many social institutions, as I show drawing on insights from the philosophy of society. Theorists also typically fail to recognize two distinct orientations of law, and multiple forms of law, which singular concepts of law cannot accommodate. Finally, variability and change owing to the social-historical nature of law defeats efforts of legal philosophers to identify essential features and universally true concepts of law. At the conclusion I present a way of understanding law that emerges out of the lessons learned from past unsuccessful efforts.
Here are the topic headings in the essay: Three Categories of the Concept of Law; Pivotal Role of Intuitions About Law; Over-Inclusiveness of Functionalism; Under-Inclusiveness of Functionalism; Why Functionalism Cannot Answer ‘What is Law?’; Error of Conflating ‘Rule System’ and ‘Legal System’; Law as Part of the Institutional Substrate of Society; State Law’s Two Orientations; Coexisting Multiple Legal Forms; Necessary and Essential Features Or Typical Features; Universal Application Versus Universal Truth; What is Law?
Download the paper from SSRN at the link. 

January 12, 2015

A New Publication On Diderot's "Le Fils Naturel"

From our friend José Calvo Gonzalez, news of his new publication in the journal DOXA: Cuadernos de Filosofia del Derecho, vol. 37 (2014). He has published "Le Fils naturel (1757), de Diderot, o la espectacularidad de una «condition» jurídico-familiar"/ "Diderot’s Le Fils naturel (1757), or the spectacularity of a juridical «condition» of family" at page 281.

Tribunals and Translation

Alessandra Asteriti, University of Glasgow School of Law, has published 'Three Grades of Evil': Nabokov, Wittgenstein and the Perils of Treaty Interpretation as European Society of International Law, 10th Anniversary Conference, Vienna, 4-6 September 2014, Conference Paper no. 1/2014. Here is the abstract.

The article investigates the interpretative practice of investment tribunals in the light of Wittgenstein's theory on rule following and usage, to advance the hypothesis that arbitral tribunals run the risk to interpret the language of the treaties so as to effect a deracination of their terms. In order to do so, the article employs Vladimir Nabokov's reflections on the perils of translation, contextually arguing that the incorporation in investment treaties of language developed in specific domestic frameworks (i.e. United States' constitutional jurisprudence) is an example of semantic hegemony accompanied by hermeneutic conformity on the part of tribunals.
Download the paper from SSRN at the link. 

More Top Ten Lawyer Films, From a Spanish Scholar

A list of top ten lawyer films from lawyer/scholar José Santiago Yanes Pérez. Some are US films, for which he has given the Spanish title, some are Spanish films, and some are films made in other countries. A very interesting and thought-provoking mix. He also has results of a top ten survey here.

January 9, 2015

Justice in the Waverley Novels: The Heart of Mid-Lothian

Enrique García Díaz has published An Overview of Justice in Sir Walter Scott Waverley Novels: The Heart of Mid-Lothian in the Oñati Socio-Legal Series, Vol. 4, No. 6, 2014. Here is the abstract. 

English Abstract: Although Sir Walter Scott is a well-known writer most of his readers know that he became an advocate in 1792, when he was admitted to the bar. Since then Scott and other advocates walked the floor at Parliament House (home of the Faculty of Advocates and the Court of Session) waiting to be hired. Scott’s own experiences as a fledgling advocate are echoed in those of Alain Fairford in his novel Redgauntlet (Scott 1824), which provides a vivid picture of Parliament House in the eighteenth century. During his life, Scott combined extensive writing and editing issues with his daily work as Clerk of Session and Sheriff-Depute of Selkirkshire. Walter Scott was not unaware of Justice and Law and The Heart of Mid-Lothian is the novel in which he introduces to the reader the Scottish Legal System during the eighteenth century. However, there are few more examples that I will explain.
Spanish Abstract: Aunque Sir Walter Scott es un conocido escritor, la mayoría de sus lectores saben que en 1792 se hizo abogado, cuando fue admitido en el colegio de abogados. Desde entonces Scott y otros abogados rondaron el Parlamento con la esperanza de ser contratados. Las propias experiencias de Scott como un abogado novel se reflejan en las de Alain Fairford en su novela Redgauntlet (Scott 1824), lo que ofrece una vívida imagen del Parlamento (sede de la facultad de Derecho y Tribunal Supremo) en el siglo XVIII. Durante su vida, Scott compaginó una profusa actividad como escritor y editor con su trabajo diario como juez en Selkirk. Walter Scott conocía la justicia y el derecho y El corazón de Mid-Lothian es la novela en la presenta al lector el régimen jurídico de Escocia durante el siglo XVIII. Sin embargo, se explicarán algunos otros ejemplos.
Download the essay from SSRN at the link.

January 8, 2015

George Orwell and the Current Spanish Penal Code

Alison H. Hogg, Universidad del País Vasco, has published Statement of Problem: Dangerous Desires in Orwell's 1984 and the Present Spanish Penal Code in the Oñati Socio-Legal Series, Vol. 4, No. 6, 2014. Here is the abstract.

English Abstract: Our construct of a dangerous subject has changed little over the past century. Dangerous subjects in Oceania, a region created by Orwell in his novel 1984 in a constant state of war, consciously or unconsciously manifest too much autonomy. Self-autonomy and agency breach established moral codes of conduct and manifest an inability to self-govern and conform i.e. discipline. What is deemed dangerous is constructed by Ingsoc, Oceania’s prevailing political philosophy; however, if considered of value to the party, time is invested and mandatory treatment is imposed to bring them into line with normative conduct. This treatment consists in stripping them of their identity and desires, which is achieved through them being rendered physically and psychologically innocuous. In the same vein, two new dangerous collectives were designated by the Spanish legislature in a reform introduced to the Penal Code in June 2010, the terrorist and sex offender. On this occasion, it is their efforts to resist this normalization onslaught that renders them dangerous. Unable to incarcerate indeterminately or execute both collectives, a new post-custodial security measure is deployed to ensure that both collectives remain socially and politically isolated. This article compares the dangerous symptomatology depicted by Orwell in 1984 with the dangerous offender constructed by the Spanish legislature in OL 5/2010, the problematization of their habits and behaviours as well as the alleged cure offered to these dangerous subjects. For Ingsoc and the Spanish legislature, the imminent danger is a threat to social and public order.

Spanish Abstract: Nuestra construcción de un sujeto peligroso ha cambiado poco durante el siglo pasado. Sujetos peligrosos en Oceanía, una región creada por Orwell en su novela 1984 que está en un constante estado de guerra, manifiestan demasiada autonomía de forma consciente o inconsciente. La anulación de la propia autonomía y la voluntad establecieron códigos morales de conducta y manifestaron la incapacidad de autogobierno y de conformar, es decir la disciplina. Ingsoc, la filosofía política que domina Oceanía, determina lo que se considera peligroso; sin embargo, si se considera valioso para el partido, se invierte tiempo y se impone un tratamiento obligatorio para alinearlos con la conducta normativa. Este tratamiento consiste en despojarlos de su identidad y deseos, lo que se consigue haciendo que sean física y psicológicamente inocuos. En la misma línea, en la legislación española se designaron dos nuevos colectivos peligrosos, a través de una reforma del Código Penal en junio de 2010, el terrorista y delincuente sexual. En este caso, son sus esfuerzos para resistir este ataque de normalización lo que los hace peligrosos. Ante la imposibilidad de encarcelar de forma indeterminada, o ejecutar a ambos colectivos, se ha implementado una nueva medida de seguridad tras la pena de cárcel para asegurar que ambos colectivos permanecen social y políticamente aislados. Este artículo compara la sintomatología peligrosa retratada por Orwell en 1984, con el peligroso delincuente construido por la legislación española en la LO 5/2010, la problematización de sus hábitos y comportamientos, así como la supuesta cura ofrecida a estos sujetos peligrosos. Para Ingsoc y la legislación española, el peligro inminente es una amenaza al orden público y social.

Download the essay from SSRN at the link. 

Michael Kohlhaas and the German Legal System

Heike Jung, Saarland University, has published Michael Kohlhaas or the Germans and Their Law in the Oñati Socio-Legal Series, Vol. 4, No. 6, 2014. Here is the abstract. 

English Abstract: Asked to pick a single representative ‘German’ piece for a discourse on ‘Law and Literature’ one almost inevitably ends up with Kleist’s tale Michael Kohlhaas. It seems to be the literary incarnation of the German stance vis-à-vis the law. It is all about horses; it could just as well be about dogs. Kohlhaas fights a devastating battle, using legal means and outright violence, even warfare, for their recovery in good shape. Victorious eventually with his legal actions, he is happy to trade in his own life for this victory, thus giving an extreme example for the nice line between being in the right and pursuing this position with disproportionate rigour. Of course, the interpretations of Michael Kohlhaas (which, in its complete version, dates of 1810) have varied from epoch to epoch as well as from reader to reader. It is not possible to rehearse the bulk of ‘Kohlhaas literature’. In comparing legal cultures, it might be of interest to look into the question why such a somber story on the law forms part and will continue to form part of the German cultural heritage. Spanish Abstract: Si se tiene que elegir un único representante “alemán” para una ponencia sobre “derecho y literatura”, es inevitable optar por la obra de Kleist, Michael Kohlhaas. Parece la encarnación literaria de la posición alemana hacia el derecho. El libro trata de caballos; también podría tratar sobre perros. Kohlhaas libra una batalla devastadora usando medios legales y la violencia pura y dura, incluso la guerra, para que se recuperen en buena forma. Finalmente resulta ganador mediante acciones legales, está contento de dedicar su propia vida para conseguir esta victoria, dando así un ejemplo extremo de la línea que existe entre tener la razón y seguir esta posición con un rigor desproporcionado.

Por supuesto, las interpretaciones de Michael Kohlhaas (publicado en 1810) han variado de una época a otra, y de un lector a otro. No es posible revisar el grueso de la “literatura sobre Kohlhaas”. Al comparar las culturas legales, podría ser interesante estudiar la razón por la que una historia tan sombría sobre el derecho forma parte y va a continuar formando parte del patrimonio cultural alemán.

Download the essay from SSRN at the link. 

Visiting Assistant Professor Position Available At Haverford College

From Jill Stauffer, Haverford College:

Haverford College invites applications for a three-year visiting Assistant Professor (with possibility of renewal) in its Peace, Justice and Human Rights Program. The position is open to scholars at all pre-tenure levels with training in the humanities or social sciences who focus in their work on questions of justice, peace and conflict, human rights and related fields, with special attention to ethics or ethical leadership.
Candidates should be able to teach an applied ethics course in issues of global justice and/or an introductory course on peace, justice and human rights, as well as offer more specialized courses. The teaching load is five courses per year. Successful candidates will be given resources to plan and host a symposium oriented around themes of ethics and justice in the second year of the appointment, during which the teaching load will be reduced to four courses to accommodate the responsibilities of preparing and hosting the symposium.
Salary is competitive and commensurate with experience and qualifications. Research and travel money is also available. Faculty housing on campus may be available.
Haverford College is a leading liberal arts college serving highly motivated students on a nationally recognized arboretum in suburban Haverford, just outside Philadelphia. The program in Peace, Justice and Human Rights is an interdisciplinary concentration that students may add on to any major. Its goal is to foster cross-disciplinary collaboration and creative new perspectives on entrenched problems. For more information, see http://www.haverford.edu/pjhr/.
Qualifications
Candidates for the position should have a Ph.D and demonstrated evidence of strong teaching at all levels of the curriculum to a diverse student body. ABD candidates may apply but must also provide assurance of completion of the degree by September 1, 2015 and evidence of relevant teaching experience.
Application Instructions
Please submit a cover letter addressing your fitness for the position, curriculum vitae, a sample course syllabus for “Introduction to Peace, Justice and Human Rights” or “Applied Ethics of Peace, Justice and Human Rights,” a short teaching statement and evaluations, and a writing sample of no more than 25 pages to (interfolio). In order to receive full consideration, all materials must be uploaded to Interfolio (http://apply.interfolio.com/27643) by February 6, 2015.






January 7, 2015

Legal Procedure In Racine's Les Plaideurs

Claude Witz and Martin Hlawon, both of Saarland University, have published On Racine's The Litigants in Oñati Socio-Legal Series, Vol. 4, No. 6, 2014. Here is the abstract.

English Abstract: French tragedian Jean Racine’s only comedy The Litigants (1668) is a theatrical caricature of the people of the law and of legal procedure at the time when Louis XIV’s councillor Colbert was undertaking important reforms of the judicial system. Litigious claimants, a maniac judge, a masochistic bailiff and loquacious lawyers all concur in the frantic display of a justice drowned in formalities and the pursuit of individual interests. The study of this play reminds us of the importance of constant efforts to reduce the complexity of legal procedure. Spanish Abstract: Los litigantes (1668), la única comedia del dramaturgo francés Jean Racine, es una caricatura teatral del mundo del derecho y el procedimiento legal de la época en la que Colbert, canciller de Luis XIV, impulsó importantes reformas del sistema judicial. Demandantes litigiosos, un juez maníaco, un agente judicial masoquista y abogados locuaces coinciden en una exhibición frenética en la que la justicia se muestra ahogada en formalidades y la búsqueda de intereses individuales. El estudio de esta obra nos recuerda la importancia de los esfuerzos constantes para reducir la complejidad del procedimiento legal.
Download the paper from SSRN at the link. 

Anatole France and the Crainquebille Case

Sophie Delbrel, University of Bordeaux, has published An Anti Dreyfus Case? Crainquebille or Ordinary Injustice According to Anatole France as Oñati Socio-Legal Series, Vol. 4, No. 6, 2014. Here is the abstract.

English Abstract: Anatole France, a French writer of the end of the nineteenth Century, published Crainquebille at the very moment when Dreyfus, an officer wrongly sentenced to deportation, was pardoned by the President of the Republic. The Dreyfus case was an outstanding case, whereas the Crainquebille case was most insignificant. Yet the Crainquebille case enhances the vices of the French judiciary system on the whole. Spanish Abstract: Anatole France, escritor francés de finales del siglo XIX, publicó Crainqubille en el momento en que el Presidente de la Republica indultó a Dreyfus, un oficial sentenciado injustamente a la deportación. El caso Dreyfus fue un caso destacado, mientras que el caso Crainquebille fue prácticamente insignificante. De cualquier forma, el caso Crainquebille destaca los vicios del sistema judicial francés en su totalidad.
Download the paper from SSRN at the link. 

Conscience, Self-Knowledge, and Justice In Dr. Jekyll and Mr. Hyde

Iker Nabaskues, University of the Basque County Faculty of Law, has published Law, Science, Facts and Morals in Robert Louis Stevenson's the Strange Case of Dr. Jekyll and Mr. Hyde as Oñati Socio-Legal Series, Vol. 4, No. 6, 2014. Here is the abstract.

English Abstract: The impressive novel of the Scottish Master, despite his surprisingly simple narrative, shows an unquestionable moral and philosophical depth and it is considered as a canon of literature. The mystery of the plot shows how conscience and self-knowledge, both core components of human condition and modern rationality make clear the limits of legal and scientific rationality. The concept of Justice is shown from the distinctive perspective of Stevenson’s narrative; complex, paradoxical and ethically unclassifiable from the perspective of systematic thought.

Spanish Abstract A pesar de su sorprendente simplicidad narrativa, la impresionante novela del maestro escocés muestra una profundidad filosófica incuestionable y es considerada un canon de la literatura. El misterio argumental de la novela muestra cómo la consciencia y el auto-conocimiento, ambos componentes esenciales de la condición humana y la racionalidad moderna, muestran los límites de la racionalidad legal y científica. El concepto de Justicia se muestra desde la singular perspectiva de Stevenson; complejo, paradójico y éticamente inclasificable desde la perspectiva de cualquier pensamiento sistemático.
Download the paper from SSRN at the link. 

January 6, 2015

The History of Copyright Law In Eighteenth Century England

Simon Stern, University of Toronto Faculty of Law, has published Towards a Pre-History of the Public Domain: Copyright Law and its Limits in Eighteenth-Century England. Here is the abstract. This is a pre-review draft of a chapter in the Oxford Literature Handbooks series, Forthcoming.
The advent of statutory copyright in eighteenth-century England raised questions about ensuring access to the materials that writers need to produce new books. The public domain did not spring into being as the obverse of the rights afforded by the Act of Anne (1710), nor was it created by nineteenth-century doctrines such as fair use; rather, it developed out of practices and assumptions predating the Act of Anne, and others that emerged in the statute’s wake. To explore these ideas, the essay considers booksellers’ and authors’ conceptions of copyright as property, the metaphors proposed by advocates of anti-piracy measures, arguments about copyright’s duration and its basis in the common law, and analogies between copyright and patent law during this period. Finally, the essay discusses the booksellers’ strategic litigation in the equity courts, where pleading could rely on imaginative premises that, in some respects, rival those of contemporaneous novelists.
Download the essay from SSRN at the link.

Eight Hundred Years of Magna Carta

Thomas J. McSweeney, William & Mary Law School, has published Magna Carta, Civil Law, and Canon Law in Magna Carta and the Rule of Law (Daniel Magraw et al., eds.; 2014). Here is the abstract.

With the 800th anniversary of Magna Carta approaching, interest has been piqued in the charter, which influenced the development of the common law in its early stages. One debate surrounding the charter is the degree to which Roman and canon law influenced the text. This debate has important implications for the identity of the common law. We tend to think of common law as an English institution, very different from those continental civil-law systems that trace their ancestry back to medieval Roman and canon law. If Roman and canon law influenced the charter, it could serve as evidence that the early common law was not so insular in its outlook as we have thought, and that it really should be placed in a broader European context.

Roman and canon law — collectively called the ius commune in the Middle Ages — certainly made their mark on Magna Carta, but this paper argues that the elements of the ius commune that found their way into Magna Carta were inserted not to influence the early development of the common law, as many scholars have assumed, but rather because ius commune, and more particularly canon law, was a political language that appealed to various important constituencies in England and abroad. Appeals to canon law in Magna Carta were more likely placed there to elicit support from the papacy than to reform English law. This paper places Magna Carta in the longer context of the Church reform movement and its instantiation in England — the Becket dispute — and argues that Magna Carta’s ius commune-influenced provisions were attempts by English actors to give universal significance to their local disputes.
Download the essay from SSRN at the link.

Legal Language and Rhetoric in Nineteenth-Century America

Robert L. Tsari, American University, Washington College of Law, has published Legal Language in Nineteenth-Century America in The Ashgate Companion to Law and Humanities in Nineteenth-Century America (Nan Goodman & Simon Stern eds.; Ashgate, 2015).

This contribution explores the development of legal language in nineteenth-century America as a species of political discourse. In particular, I sketch the broad, competing trends in legal language. On the one hand, legal rhetoric became more popular and fragmented, as the sources of law multiplied. On the other hand, the law also became increasingly sophisticated and specialized with the rise of institutions. These features on the surface of legal rhetoric hinted at deeper changes in the imperatives of political development and efforts at cultural resistance.
Download the essay from SSRN at the link.

January 4, 2015

Investment Advice From Downton Abbey

Steve Juetten of Forbes offers up this list of financial lessons we can derive from the popular BBC drama Downton Abbey. Among them: don't put all your eggs in one monetary basket, and make sure you have health insurance. 

January 2, 2015

Exhibits Devoted To Sherlock Holmes, At the Museum of London

The Museum of London has mounted a new exhibition devoted to exploring the enduring attraction of the man in the deerstalker. Entitled Sherlock Holmes: The Man Who Never Lived and Will Never Die, the exhibit runs through April 12, 2015. Also of interest: fashion photography by Kasia Wosniak, called He Wasn't An Easy Gentleman To Describe, and Mind Maze, a graphic interpretation of Holmes's mind.

Law and Humanities Events at the 2015 AALS Meeting

If you are attending the 2015 AALS Meeting this year, don't forget the special film events: January 2nd's 7:30 p.m. showing of the 1961 classic Judgment at Nuremberg, with special commentary by Professor Harold Koh, and January 4th's 8 p.m. showing of the 2011 documentary Hot Coffee. On Monday, January 5th, AALS will present a special cross-cutting program from 2-5 that will include guest speaker Professor Anita Hill and a showing of the film Anita.

Here's a selection of interesting programs at AALS this year. The Law and Humanities Section program will take place from 8:30 to 10:15 on Saturday, January 3 (topic: Law and the hero). The Sections on Constitutional Law, Women in Legal Education, and Legal History are co-sponsoring a program at the same time (Topic: Griswold then and now). At 1:30 on Jan. 3, Legal History and WLE are co-sponsoring a program with guest speaker Associate Justice Ruth Bader Ginsburg on "engendering equality." At 8:30 p.m. on Monday, Jan. 5, the Section on Art Law will be sponsoring a program on "After the Monuments Men: Nazi Era Art, Modern Legal Problems."

A Laughing Matter

Cartoonist Cathy Leamy is a student in the Tufts Master of Science health communication program, where she is honing her skills and making people smile while also sending messages about good health practices.  I like her take on comics and health, and for me, it doesn't take a lot to reach the "law" part.  Check out Cathy's blog here.

Oh, and Happy New Year!

December 21, 2014

A Review of "Storytelling For Lawyers"

David Dow, University of Houston Law Center, has a nice review of Philip Meyer's Storytelling For Lawyers (Oxford, 2014) at 39 Vermont L. Rev. 13 (2015) (not yet available online). 

December 11, 2014

Scientific Evidence and Medical Malpractice Cases In the Nineteenth Century

Michael Ashley Stein, William & Mary Law School; Harvard Law School, Christopher P. Guzelian, Thomas Jefferson School of Law, and Kristina M. Guzelian, Thomas Jefferson School of Law, have published Expert Testimony in Nineteenth Century Malapraxis Actions at 55 American Journal of Legal History 284 (2015). Here is the abstract.


Medical negligence evolved as an independent tort during the nineteenth century. Despite pervasive professional concerns about its ethicality, paid medical expert testimony became routine. In a manner strikingly similar to modern commentary, prominent jurists disparaged testimony for commonly relating anecdotal experience rather than scientifically derived knowledge. Also notable among cases was a dominant tendency to rule for medical practitioners when both parties presented expert testimony. Conversely, suits resolved in favour of whichever party unilaterally retained a testifying expert.

Download the article from SSRN at the link. 

December 10, 2014

Fifth International Conference On Law, Language, and Discourse, September 2015

The School of Law, Psychology, and Social Work at Örebro University (Sweden) is hosting the 5th International Conference on Law, Language, and Discourse from September 27 to October 1, 2015. Here is a description of the conference with panels, invited speakers, and special events.

Fighting Words

Oren Gross, University of Minnesota Law School, and Fionnuala D. Ni Aolain, University of Minnesota Law School & University of Ulster, Transitional Justice Institute, have published The Rhetoric of War: Words, Conflict and Categorization Post-9/11 in volume 24 of the Cornell Journal of Law and Public Policy (2014).  Here is the abstract. 

Words are a source of immense power. Using them we not only communicate with each other and express our thoughts, but shape thought itself. In turn, the framing of issues and outcomes significantly shapes choices — whether pertaining to private decisions or to public policy. At the same time, reliance on framing as a shortcut also means that whoever manages to control the framing of information would greatly influence, and could manipulate, the interpretation and meaning that recipients of that information are likely to attach to it.
The article addresses the language, rhetoric, status, and legality of “war” by examining the complexity of decision-making for policy-makers in the aftermath of the terrorist attacks of September 11, 2001. It does so by looking both inward, examining presidential war rhetoric in the United States, and outward, analyzing the experience of democratic states with the legal construct of “emergency” and “war” under the relevant international human rights treaties.
We critically examine the role of the President as a national choice architect and the nation’s chief rhetorician and his use of the power of the bully pulpit in the context of war rhetoric — including the War on Poverty, War on Drugs, and the War on Terror — as well in situations when the presidents have elected to steer clear of the war frame and adopted alternatives.

We also analyze the positioning of democratic states post 9/11, as they have adopted, adapted and rejected the language of war and emergency to respond to terrorist threats. In particular we note the growing trend among consolidated democracies to not invoke the established legal mechanisms dealing with emergencies under the relevant international treaties, opting instead to deal with perceived threats under the aegis of ordinary legislation without invoking the framing of “war” or “emergency.” We chart significant indeterminacy indicated by the contradictory usage of the terminology and legal status associated with emergency, derogation and war over time and examine what such varied claims by democratic states mean in the war-emergency-normalcy realm.

Thus, we argue that directing attention to the language and formalities of executive and state positioning is critical not only to understanding the political actions of states, but to engage with the form and substance defining the legal status of conflict and crisis.

Download the Article from SSRN at the link. 

December 8, 2014

Some "Law and" From the Biological Sciences

Hendrik Gommer, CIS Law, has published Integrating the Disciplines of Law and Biology: Dealing with Clashing Paradigms. Here is the abstract.

This article considers the difficulties that a researcher on the border of normative and explanatory sciences may encounter. The article begins with an introduction to the field at stake, namely the integration of law and biology. It appears that this kind of interdisciplinary research is not only a challenge for the researcher himself, but also for his readers. Concepts are not understood, assumptions differ, ‘peers’ are not really peers, and the new paradigm cannot be proven. Even though some scholars might enjoy loneliness, their academic isolation may actually hamper the spreading of their ideas. Science is not only about having the best ideas, but also about having peers. Without peers, achieving a breakthrough can prove to be very difficult. This is sad news for interdisciplinary researchers, but also seems dire news for science as a whole. Major scientific breakthroughs will be significantly delayed. On the other hand, cooperative communities need stability and cannot reward every innovative new idea that has the potential to become a new paradigm.
Download the paper from SSRN at the link.

A look at the "Law and" fields on the other side of the two cultures divide.  

December 4, 2014

The Decline of the Leftist Law Professor?

Brian Z. Tamanaha, Washington University in Saint Louis School of Law has published The Failure of Crits & Leftist Law Professors to Defend Progressive Causes in volume 24 of the Stanford Law & Policy Review (2013). Here is the abstract.


Future generations will look back at the first decade of the twenty-first century as a pivotal time when a huge economic barrier was erected to encumber the path to a legal career. The symbolic announcement of this barrier rang out when annual tuition crossed the $50,000 threshold, now exceeded at a dozen or so law schools. Including fees and living expenses, it costs well in excess of $200,000 to obtain a law degree at most of the nation’s highly regarded law schools and at a number of non-elite ones as well. Law schools thus impose a formidable entry fee on anyone who wishes to follow what, until recently, has long served as a means of upward mobility and access to power in American society.
The pricing structure of legal education has profound class implications. High tuition will inhibit people from middle-class and poor families more than it will deter the offspring of the rich with ample resources. Law school scholarship policies, for reasons I will explain, in effect channel students with financial means to higher ranked law schools, reaping better opportunities, while sending students without money to lower law schools. A growing proportion of elite legal positions will be held by people from wealthy backgrounds as a result. For students who rely on borrowing to finance their legal education, the heavy debt they carry will dictate the types of jobs they seek and constrain the career they go on to have.
Liberal law professors often express concerns about class in American society — championing access to the legal profession and the provision of legal services for underserved communities. Yet as law school tuition rose to its current extraordinary heights, progressive law professors did nothing to resist it. This Article explores what happened and why.
This is offered in the spirit of critical legal studies — as a critical self-examination of the failure of leftist law professors. The Crits were highly critical of complacent liberal academics of their day, arguing that they had a hand in perpetuating an unjust legal system; here I charge liberal legal academia — including the Crits — with perpetuating the profoundly warped and harmful economics of legal education. What follows will offend many of my fellow liberals. It may even lose me some friends. Liberal law professors must see past their anger to reflect on whether there is a core truth to my arguments, to take personal responsibility for what has happened, and to engage in collective action to do something to alter the economics of our operation. If not, the current economic barrier to a legal career may become permanent.

Download the Article from SSRN at the link. 

The Narrative In U. S. Arab Naturalization Cases, 1790-1952

Khaled A. Beydoun, Barry University School of Law, has published Between Muslim and White: The Legal Construction of Arab American Identity at 69 N. Y. U. Ann. Surv. Am. L. 29 (2013). Here is the abstract.

This Article examines the legal origins of Arab-American identity during the racially restrictive Naturalization Era (1790 through 1952), when whiteness was a prerequisite for American citizenship. Ten of the 53 naturalization hearings during this era involved a petitioner from the Arab World. Judges during the Naturalization Era viewed “Arab” as synonymous with “Muslim” identity. Because Muslims were presumed to be non-white, and Arabs were presumed to be Muslims, Arabs were presumptively ineligible for citizenship. But this presumption could be rebutted. Arab Christians could – and did – invoke the fact of their Christianity to argue that they were white. These arguments sometimes secured citizenship for Christian petitioners, but did not always rebut the presumption that every immigrant from the Arab World was Muslim.

Legal scholars have paid insufficient attention to the Arab naturalization cases. These cases reveal not only how judges viewed religion as a proxy for race, but also the ways in which they conflated Arab identity with Muslim identity to do so. This conflation persists today in that many people continue to believe that Arab is synonymous with Muslim, a conflation that is especially salient following the September 11th terrorist attacks. Almost all of the current literature on Arab-Americans centers on how the government’s response to 9/11 made people who are perceived to be Arabs, Muslims, or Middle Eastern vulnerable to legalized forms of racial surveillance, subordination, and violence.

While this body of work is important, this Article introduces a preface to the post-9/11 racialization of Arab-Americans – the racial conflation of Arab and Muslim identity during the Naturalization Era. The courts during this era rendered Arab Muslim immigrants presumptively non-white and inassimilable, while sometimes finding Arab Christians eligible for citizenship and white by law. The legal construction of Arab-American identity in that earlier period helped shape contemporary understandings and misunderstandings of both Arab and Muslim-American identity today.

Download the article from SSRN at the link. 

December 3, 2014

Messianism and Political and Legal Thought

Antoni Abat i Ninet, University of Copenhagen, has published The Messianic Phenomenon in Political and Legal Thought: Where Kelsen and Schmitt Match. Here is the abstract. 

The theological origin of legal and political concepts has been an accepted belief by figures such as Locke, Hume, Smith, Machiavelli and Hobbes. The list of legal authors can also include Robert Cover´s narrative on legal violence, Fitzpatrick or Sanford Levinson. The constitutional texts around the world are good examples of transposition and complicity of theological and juridical thoughts. In the US example, the flag, the Declaration and the Constitution constitutes the holy trinity of what Tocqueville called “American civil religion”. The drafters of the US Constitution consciously played the role of a civil God; the US Supreme Court developed the role of secular prophets; the Constitution was the sacred tablets; and the people of the United States became the chosen people. As the law was received by Moses on the tablets, so too did the constitution adopt a legal, moral and religious character. This paper focuses on the study of messianism and its application to political and legal-constitutional thought aiming to enlighten some of the elements of Carl Schmitt's conceptualization of the “Sovereign” and Hans Kelsen's definition and legitimacy of the “Basic Norm”. The main goal is to identify theological characters of both theories and to analyse the transposition of mystical elements to the secular world to achieve non-disputed legitimacy.

The paper begins facing a difficult challenge, to find out a comprehensible definition of the messianic idea. The first segment is related to definition and elements of the Jewish spirituality on messianism. To achieve this purpose the paper uses the work of Gershom Scholem as a main baseline, but completed with an historical approach of messianism in the Old Testament, the medieval age and in modern Jewish philosophy. The study of the historical evolution is particularly important in this paper because it reflects the wide variation of meanings, aspects and features that the theory of messianism has suffered. The second section analyses the Christian account on messianism, even that an increasing number of scholars consider that Paul never broke away from Judaism but opposed non-Jewish involvement in the Torah, but encouraging Jesus-believing non-Jews to accept their ethnic identity. The Christian spiritual version of messianism deals mainly with the Gospels and the letters of Paul, with the work of Taubes, Saint Paul and Saint Thomas Aquinas’ Summa Theologica.
Once concluding that messianism is no esoteric or simply mysticism, but a theory than can be transposed to politics and law, the paper goes further with the work of Carl Schmitt and Hans Kelsen. How the political (Schmitt) and legal-constitutional (Kelsen) thought have adapted messianic trends in order to achieve legitimacy, recognition or obedience. The role that the “Sovereign” plays in Carl Schmitt’s apocalyptic political theology is analysed and compared with the position and features that the Messiah develops in Jewish and Catholic mysticisms. The second example, which is at the same time more provocative but also innovative, consists in a comparison of the messianic thought with Hans Kelsen’s “Basic Norm”. More concretely, the redemptory role that the first constitution plays in Kelsen's “Pure Theory of Law” and the “faith” needed to accept the no matter how, the constituent process of the basic norm. The field of the paper is theoretical, the realm of the theory more than in the realm of praxis, the paper does not look for practical intentions even that some of the conclusions may have practical effects in the understanding of our constitutional systems. In this sense, the conceptualization and claims of terms such as “rule of law”, “proportionality” and lately “human dignity” in comparative constitutional law can also be defined as messianic.

The full text is not available from SSRN. 

December 2, 2014

The Meaning of Charity

Jonathan Garton, University of Warwick, has published Re Macduff and the Charity of the Wise at 16 Charity Law and Practice Review 21 (2013-14). Here is the abstract. 

This article argues that Re Macduff, a largely overlooked 19th century Court of Appeal decision, should be reassessed as one of the defining cases of modern charity law. In rejecting 'philanthropic purposes' as being within the spirit and intendment of the Preamble to the Statute of Charitable Uses 1601, its influence has subtly but significantly shaped the development of charity law over the past century. En route the article offers a literary and sociological analysis of the protean concept of philanthropy, as contrasted with charity, tracing its shifting meaning from its origins in ancient Greek tragedy to the activities of the great social reformers of the 19th century.

Download the article from SSRN at the link. 

December 1, 2014

The Ups and Downs of U.S. State Criminal Codes

Paul H. Robinson, University of Pennsylvania Law School, has published The Rise and Fall and Resurrection of American Criminal Codes as University of Pennsylvania Law School Public Law Research Paper No. 14-38. Here is the abstract.

This brief essay summarizes the virtues of the modern American codification movement of the 1960s and 70s, putting it in a larger global context, then describes how these once-enviable codes have been systematically degraded with thoughtless amendments, a process of degradation that is accelerating each year. After exploring the political dynamics that promote such degradation, the essay suggests the principles and procedures for fixing the current codes and, more importantly, structural changes to the process that could avoid the restart of degradation in the future.
Download the paper from SSRN at the link. 

Sociolegal Studies in New Zealand

Kim Economides, Flinders University, has published Socio‐Legal Studies in Aotearoa/New Zealand at 41 Journal of Law and Society 257 (2014). Here is the abstract.

This article reviews the development and impact of the socio‐legal field in New Zealand. It begins by assessing the socio‐legal presence within teaching and research conducted across New Zealand's law faculties before analysing factors likely to inhibit future growth of the sub‐discipline in this remote jurisdiction. Having examined how New Zealand's legal scholars map and influence national legal behaviour, without always recognizing contradictions between these objectives or categorizing their research as ‘socio‐legal’, the article goes on to examine how the next generation of socio‐legal researchers might exert stronger influence over the law curriculum and new areas of legal policy. In conclusion, it argues for a distinctive New Zealand approach toward socio‐legal studies and notes that future prospects appear encouraging, and in certain respects more promising than those in the United Kingdom, particularly when considering research impact.
The full text is not available from SSRN.  

Socio-Legal Scholarship In Canada

Harry W. Arthurs, York University Law School (Osgoode Hall) and Annie Bunting, York University, have published Socio‐Legal Scholarship in Canada: A Review of the Field at 41 Journal of Law and Society 487 (2014). Here is the abstract.

This article is the second in an occasional series dealing with the development, current status, and future of socio‐legal studies in selected countries. It follows Kim Economides's review of socio‐legal studies in Aotearoa/New Zealand.
The full text is not available from SSRN.  

Friendship, Imperial Violence, and the Law of Nations

Alecia Simmonds, University of Technology< Sydney, Faculty of Law, has published Friendship, Imperial Violence and the Law of Nations: The Case of Late-Eighteenth Century British Oceania in volume 42 of the Journal of Imperial and Commonwealth History (2014). Here is the abstract. 

This article examines the interrelationship of friendship and violence in European juristic traditions and in British scientific voyaging in Oceania. Drawing upon Roman texts and natural law treatises, it shows how friendship, meaning hospitality and trade, appeared as a right asserted by imperial nations, often with the backing of force. Moving from jurisprudence to imperial practice, this paper examines the coercive elements of cross­-cultural friendship in eighteenth­ century British expansion into Oceania. It suggests that it was in the breach more than the observance that discourses of friendship came to the fore, specifically in resistance to first contact and in accusations of theft. Seen to be motivated by either violent or avaricious passions, theft and native resistance tore the bonds of human sociability asunder. I argue that the significance of friendship was twofold. First, in a context of inter­imperial rivalry, friendship signified native consent in claims of possession over land and thus ensured conformity to legal norms. Second, it promised a system of order governed by norms of affective restraint that could sublimate the passions of natives, voyagers and nations.
Download the article from SSRN at the link.

Time and Movement In the Common Law

Olivia Barr, University of Technology, Sydney, Faculty of Law, has published Walking with Empire at 38 Australian Feminist Law Journal 59 (2013). Here is the abstract. 

This article considers the place of movement in common law and, in particular, the relation between movement and place in the time and space of common law in the Colony of New South Wales. Attending to jurisdiction as a way of sliding beneath the rhetoric and representations of sovereignty and territory that tend to dominate the ways in which we understand the place of law, this article links movement to place and suggests that it is through practices of movement that common law comes to be in place. Drawing on testimony provided in a 1799 colonial trial, the elliptical centre of this article is a burial party that walked into the woods beyond an emerging frontier settlement to bury the dead. Redescribing the movements of this burial party through an attention to some of the technical and material practices of common law provides a way of illustrating how common law moves and how common law comes to be, or at least how common law seems to come to be, in place. Offering a jurisprudential linking of movement to place, therefore, this article suggests it is through material practices of movement in both space and time that common law comes to rest in place. Put simply, this is the suggestion that movement forms common law’s place.

Download the article from SSRN at the link.