A New Book About Legal History, Race, and Identity Before the Civil War

From the University of Pennsylvania Press:

In the Shadow of the Gallows (http://www.upenn.edu/pennpress/book/14973.html) reveals how a sense of racialized culpability shaped Americans' understandings of personhood prior to the Civil War. Author Jeanine DeLombard, Associate Professor of English the University of Toronto, draws from legal, literary, and popular texts to address fundamental questions about race, responsibility, and American civic belonging.

To receive a 20% discount on orders from www.pennpress.org, enter P4R3 in the promo code field.

Presumed Innocent, A Reader Favorite

The August 22nd Diane Rehm show features a segment about Scott Turow's novel Presumed Innocent. Panelists Leslie Maitland, Barry Coburn, and Alafair Burke discuss the book and the film based on it.

A short bibliography about Presumed Innocent and its themes below.

Christine A. Corcos, Presuming Innocence: Alan J. Pakula and Scott Turow Take On the Great American Legal Fiction, 22 Okla. City U. L. Rev. 129 (1997).

Christine A. Corcos, Prosecutors, Prejudices, and Justice: Observations on Presuming Innocence in Popular Culture, 34 U. Toledo L. Rev. 793 (2002/2003).

David R. Papke, The American Courtroom Trial: Pop Culture, Courthouse Realities, and the Dream World of Justice, 40 S. Tex. L. Rev. 919 (1999).

Scott Turow &  Kay Bonetti, An Interview with Scott Turow, 13 The Missouri Rev. 101 (1990).

Music, Murders, and Misdemeanors

Robyn Hagan Cain muses on the intersection of music and law for Findlaw here. Among her examples: Eric Clapton's "I Shot the Sheriff" and Michael Jackson's "Billie Jean."

Law and Justice On the Small Screen

Peter Robson, University of Strathcylde, Glasgow, School of Law, and Jessica Silbey, Suffolk University Law School, have published Law and Justice on the Small Screen (Introduction) (Hart Publishing, 2012).

Law and Justice on the Small Screen is a wide-ranging collection of essays about law in and on television. In light of the book's innovative taxonomy of the field and its international reach, it makes a novel contribution to the scholarly literature about law and popular culture. Television shows from the US, Canada, France, the UK, Germany, and Spain are discussed. The essays are organized into three sections: (1) methodological questions regarding the analysis of law and popular culture on television, (2) a focus on genre studies within television programming (including a subsection on reality television), and (3) content analysis of individual television shows with attention to big-picture jurisprudential questions of law's efficacy and the promise of justice. The book's content is organized to make it appropriate for undergraduate and graduate classes in the following areas: media studies, law and culture, socio-legal studies, comparative law, jurisprudence, the law of lawyering, alternative dispute resolution, and criminal law.

Download the essay from SSRN at the link. 

Harry Harrison (1925-2012)

Harry Harrison, the science fiction novelist, has died. He was the author of numerous classics, including "Make Room! Make Room!" which was transformed for the screen as Solyent Green, and those works which featured the con man, the Stainless Steel Rat. More in this obituary from the New York Times.

It Is a Fact Universally Acknowledged That Everybody Wants Jane's Vote

The Atlanticwire brings word of a new debate--the fight over Jane Austen's relevance to conservatives. Should they be claiming her as a politico-philosophical progenitor--like Ayn Rand? More here.

A Special Issue on "Law's Justice" From the Italian Society for Law and Literature

From M. Paola Mittica, Coordinator of the Italian Society for Law and Literature, news of a special issue of No Foundations. This issue, Law's Justice, includes contributions from James Boyd White, Jeanne Gaakeer, François Ost, Marianne Constable, Rebecca Johnson, M. Paola Mittica, Gary Watt, and Ari Hirvone. Download the full issue here.

A Global Perspective On Women's Legal History

Women's Legal History: A Global Perspective - Symposium Introduction: Making History will be available in volume 87 of the Chicago-Kent Law Review (2012). Here is the abstract.

This essay introduces the Chicago-Kent Symposium on Women's Legal History: A Global Perspective. It seeks to situate the field of women's legal history and to explore what it means to begin writing a transnational women's history which transcends and at times disrupts the nation state. In doing so, it sets forth some of the fundamental premises of women's legal history and points to new ways of writing such histories.

Download the essay from SSRN at the link. 

A Look at "Buck v. Bell"

Victoria F. Nourse, Georgetown University Law Center, has published Buck v. Bell: A Constitutional Tragedy from a Lost World at 39 Pepperdine Law Review 101 (2011). Here is the abstract.

Some constitutional tragedies are well known: Plessy v. Ferguson and Korematsu v. United States are taught to every first-year law student. Buck v. Bell is not. Decided in 1927 by the Taft Court, the case is known for its shocking remedy -- sterilization -- and Justice Holmes's dramatic rhetoric: "Three generations of imbeciles are enough." A mere five paragraphs long, Buck v. Bell could represent the highest ratio of injustice per word ever signed on to by eight Supreme Court Justices, progressive and conservative alike.

Buck v. Bell is not a tragedy as some others might define tragedy: it is not a well-known opinion, nor did it yield wide popular criticism; it sits as a quiet evil, a tragedy of indifference to the Constitution and its most basic principles. To include Buck as a tragic opinion is to recognize what Hannah Arendt once dubbed the "banality of evil." Even if grounded in eugenic assumptions widely held at the time, Buck v. Bell was an utterly lawless decision. Holmes treated Carrie Buck's constitutional claims with contempt. The opinion cites no constitutional text or principle emanating from the text. The only "law" in the opinion must be unearthed from a lost constitutional history embedded in a factual exegesis full of disdain for the Constitution and humanity itself. Few human tragedies can be greater "than the denial of an opportunity to strive or even to hope, by a limit imposed from without, but falsely identified as lying within." A lawless legitimation of such a principle -- one of natural aristocracy -- flies in the face of the very constitutional principles on which our nation was founded.

Download the article from SSRN at the link. 

Desmond Manderson on Law and Literature

Desmond Manderson, ANU College of Law; ANU College of Arts & Social Sciences; McGill University Faculty of Law, has published Modernism and the Critique of Law and Literature at 35 Australian Feminist Law Journal 105 (2011). Here is the abstract.

‘Law and literature’ suffers from two besetting weaknesses: first, a concentration on substance and plot and, second, a salvific belief in the capacity of literature to cure law or perfect its justice. The first fails to question the Platonic ideal that the purpose of art is mimetic. The second fails to question the romantic ideal that the purpose of art is to heal the world’s wounds. Too often in opening a dialogue with law we fail to capture the real experience or worth of literature - a worth irreducible to either the morality it ‘stands for’, or to the coherence or harmony it promises. Indeed, the aesthetic ideals of modernism, which so dramatically altered the landscape of literature, philosophy and politics around the turn of the (twentieth) century, reject just these claims. Modernism - to be more sharply distinguished from ‘modernity’ than it often is - produced instead a heightened attentiveness to questions of style, form, and language, and to questions of diversity and subjectivity in voice and perspective. Modernism cast off the aesthetic ideologies of mimesis and romanticism and opened up claims of truth, progress, and perfection to the destabilizing subtlety of irony. This essay’s focus on modernist irony, with particular attention to the work of Mikhail Bakhtin, suggests a very different orientation and defense of ‘law and literature’.

Download the article from SSRN at the link. 

A Nineteenth Century Crime Drama From BBC America

BBC America launches its first scripted show, Copper, on August 19th. The show, set in New York's Five Points in 1863,features a police officer named Kevin Corcoran (Tom Weston-Jones). The series, created by Barry Levinson and Tom Fontana, is on every Sunday at 10 p.m., 9 Central time.

More here from Richard Morgan (Wall Street Journal online).

Marlowe's Return

The Chandler estate has asked John Banville to bring Raymond Chandler's Philip Marlowe back in a new novel. Mr. Banville will be using the pseudonym Benjamin Black, the name he uses for his own detective series. More here from the New York Times.

Justice Ginsburg, Music, and Law

Justice Ginsburg on music and law, here from FindLaw. More here from the Wall Street Journal.

Law and Justice On the Small Screen

NOW PUBLISHED

Law and Justice on the Small Screen

Edited by Peter Robson and Jessica Silbey

'Law and Justice on the Small Screen' is a wide-ranging collection of essays about law in and on television. In light of the book's innovative taxonomy of the field and its international reach, it will make a novel contribution to the scholarly literature about law and popular culture. Television shows from France, Canada, the United Kingdom, Germany, Spain and the United States are discussed.  The essays are organised into three sections: (1) methodological questions regarding the analysis of law and popular culture on television; (2) a focus on genre studies within television programming (including a subsection on reality television), and (3) content analysis of individual television shows with attention to big-picture jurisprudential questions of law's efficacy and the promise of justice. The book's content is organised to make it appropriate for undergraduate and graduate classes in the following areas: media studies, law and culture, socio-legal studies, comparative law, jurisprudence, the law of lawyering, alternative dispute resolution and criminal law.

Please click on the links below to read the introduction and the table of contents:

Introduction: http://www.hartpub.co.uk/pdf/samples/9781849462693sample.pdf

Contents: http://www.hartpub.co.uk/pdf/9781849462693.pdf

Contributors

Taunya Lovell Banks, Paul Bergman, Lief H Carter, Christine A Corcos, Dr Annette Houlihan, Rebecca Johnson, Ummni Khan, Freya Kodar, Anita Lam, Anja Louis, Stefan Machura, Nancy S Marder, Michael McCann, Dr Angus Nurse, Kimberlianne Podlas, Dr Sara Ramshaw, Peter Robson, Susan Dente Ross, Dr Jennifer L Schulz, Cassandra Sharp, Jessica Silbey, Marilyn Terzic, Ryan J Thomas, Mark Tunick, Tung Yin

Editors

Peter Robson is a Professor of Law at the University of Strathclyde.

Jessica Silbey is Professor of Law at Suffolk University Law School, Boston, Massachusetts.

Aug 2012   488pp   Pbk   9781849462693  £35 / €45.50 / US$55 / CDN$55   

Order Online:

UK, EU, and ROW orders: http://www.hartpub.co.uk/books/details.asp?isbn=9781849462693

USA orders: http://www.hartpublishingusa.com/books/details.asp?isbn=9781849462693

If you have any enquiries please contact Hart Publishing Ltd, 16C Worcester Place, Oxford, OX1 2JW, UK Telephone Number: 01865 517530; Fax Number: 01865 510710; Website: www.hartpub.co.uk; E-mail: mail@hartpub.co.uk

Hart Publishing Ltd. is registered in England No. 3307205

It's a Bird, It's a Plane, It's a Client!

James Daily and Ryan Davidson have turned their blog, Law and the Multiverse, into a book, The Law of Superheroes (Gotham Books, a division of Penguin, forthcoming). More here from The National Law Journal.

New Sherlock Holmes Series Premieres September 27

CBS is launching a new Sherlock Holmes series, Elementary, on September 27 at 10 p.m. (9 Central time). The newest incarnation of Holmes and Watson is set in today's New York City and stars Johnny Lee Miller (Trainspotting) as Holmes and Lucy Liu (Ally McBeal, Charlie's Angels, Kill Bill) as Joan Watson. While CBS considers the show an adaptation (and a reboot), BBC execs seem to be somewhat miffed about elements contained in the new series. The producer of the current BBC show that stars Benedict Cumberbatch has said,  “Johnny is a very fine actor, who I saw recently in the theatre when he and Benedict played alternating roles in Frankenstein. Let's hope their pilot script has stayed further away from our Sherlock than their casting choice." Mr. Miller had shared the lead in a National Theatre production of Frankenstein with Mr. Cumberbatch. More discussion in the Washington Post here.

Meanwhile, the BBC's phenomenally successful reimagined Holmes series Sherlock, set in contemporary London, and now in its second season in the US, is trundling along.

A New Book on U.S. Legal and Religious History

Susan Sage Heinzelman, Director, Center for Women's and Gender Studies, University of Texas at Austin, tells us about this new publication by Nan Goodman from the University of Pennsylvania Press.

The University of Pennsylvania Press is pleased to announce the release of Banished: Common Law and the Rhetoric of Social Exclusion in Early New England by Nan Goodman. Nan Goodman is Associate Professor of English at the University of Colorado at Boulder, where she also teaches law.Banished investigates Puritan practices of social exclusion through the lens of seventeenth-century New England common law. From religious dissident Anne Hutchinson to the Deer Island Indians, cases of banishment reveal the impact of legal rhetoric on our conceptualization, past and present, of community boundaries and belonging.
To receive a 20% discount on orders from www.pennpress.org, enter P4R4 in the promo code field.

 

Obama's Campaign Rhetoric

K. C. Morrison, Timothy Fair, and Aaron Rollins, all of Mississippi State University, have published Expanding the Myth of the American Republic: The Campaign Rhetoric of Barack Obama as an NCOBPS 43rd Meeting Paper. Here is the abstract.

This research is based on the analysis of presidential campaign speeches of Barack Obama to understand how he used rhetoric to create favorable opinion in a majority white voting constituency. Our argument is that Obama used rhetoric in a way that appropriated patriotic and multicultural elements associated with the American republic to redefine the myth of national identity. Speeches are analyzed in a variety of settings from which we are able to generate a set of clear and recurring patterns that compose a refashioned mythology.

The full text is not available from SSRN. 

Women's Speech

Eileen Hunt Botting, University of Notre Dame, is publishing Ascending the Rostrum: Hannah Mather Crocker and Women's Political Oratory in the Journal of Politics. Here is the abstract.

Although Hannah Mather Crocker (1752-1829) apparently presented a prescription against women's political oratory in her Observations on the Real Rights of Women (1818), she provided philosophical and historical challenges to this conventional rule of early nineteenth-century feminine propriety elsewhere in the first American treatise on women's rights. By analyzing new archival findings of two of her oratorical works from the early 1810s — her 1813 "Fast Sermon" against the War of 1812 and her 1814 "Address" to the advisory board of the School of Industry for poor girls in Boston's North End — I argue that Crocker also provided a personal challenge to this conventional rule. In philosophically, historically, and personally redefining women's political oratory as compatible with feminine propriety — during the post-revolutionary backlash against women's rights — Crocker helped pave the way for the strategic use of the constitutional rights of speech and association in the nineteenth-century American women's rights movement and beyond.

The full text is not available from SSRN. 

Call For Papers--Critical Approaches To International Criminal Law

Call for Papers – Critical Approaches to International Criminal Law

The first conference on Critical Approaches to International Criminal Law, organised by the University of Liverpool School of Law and Social Justice, will take place on Thursday 6^th December and Friday 7th December 2012.

The field of International Criminal Law (ICL) has recently experienced a significant surge in scholarship, in institutions, and in the public debate. The contemporary debate is predominantly focussed on ICL’s contribution to projects of justice, peace, legality, addressing impunity and accountability. While there are individual sites of critique, they are largely limited to effectiveness arguments: If the International Criminal Court is not functioning as well as it could be, then it must be made more effective; if peace is not yet achieved through tackling impunity, then there must be more accountability. This limited critique has fostered a seemingly self-congratulatory, uncritical, and over-confident area of international law which has marginalised deeper critical approaches.

What is missing from the mainstream debate are the possible complicities of ICL in injustice, conflict, exclusions, and biases. Arguably, the numerous conferences this year on the topic of the 10-year anniversary of the coming into force of the Rome Statute are largely a testament to this limited critique. In this conference, we hope to shift the debate towards such complicities and limitations in the contemporary understanding of ICL. We hope to question some of the assumptions which inform the field and which may cause injustice, conflict, exclusion and bias.

Tentative sites of critique, which are envisaged as central to an idea of Critical Approaches to International Criminal Law (CAICL), are:

1.              ICL and the political

2.              ICL and individualism

3.              ICL and neo-liberalism

4.              ICL and ideology

5.              ICL and gender

6.              ICL and afrocentricism

7.              ICL crowding out other disciplines

8.              ICL and the emergence of a judiocracy

The first day of the conference is open to all and will take place at the International Slavery Museum in Liverpool. The second day will be a closed session including a writing workshop and an exchange of ideas on teaching CAICL; participation of this requires an invitation.

More information will be online shortly at: http://www.liv.ac.uk/law-and-social-justice/research/human_rights/index.htm

Please send abstracts of 500 words (max.) and a short bio (100 words max.) to C.Schwobel@liverpool.ac.uk by 01 September 2012. Selected speakers will be contacted by 28 September 2012. Draft papers will be due by 01 December 2012. A number of papers will be selected for an edited collection and/or a special issue. Completed papers will be due by end January 2013. The manuscript will be sent for consideration by March 2013.

A registration fee of £50 for academics and £100 for practitioners will be incurred. The registration fee income will go towards a travel grant for postgraduate students.

A New Book on Nineteenth Century Women, Law, and Literature

Now available:

In Contempt: Nineteenth-Century Women, Law, and Literature

by Kristin Kalsem

Available from Ohio State University Press http://www.ohiostatepress.org/books/book%20pages/kalsem%20in.html

In Contempt: Nineteenth-Century Women, Law, and Literature explores the legal advocacy performed by nineteenth-century women writers in publications of nonfiction and fiction, as well as in real-life courtrooms and in the legal forum provided by the novel form.

The nineteenth century was a period of unprecedented reform in laws affecting women’s property, child support and custody, lunacy, divorce, birth control, domestic violence, and women in the legal profession. Women’s contributions to these changes in the law, however, have been largely ignored because their work, stories, and perspectives are not recorded in authoritative legal texts; rather, evidence of their arguments and views are recorded in writings of a different kind. This book examines lesser-known works of nonfiction and fiction by legal reformers such as Annie Besant and Georgina Weldon and novelists such as Frances Trollope, Jane Hume Clapperton, George Paston, and Florence Dixie.

In Contempt brings to light new connections between Victorian law and literature, not only with its analysis of many “lost” novels but also with its new legal readings of old ones such as Emily Brontë’s Wuthering Heights (1847), George Eliot’s Adam Bede (1859), Lewis Carroll’s Alice’s Adventures in Wonderland (1865), Rider Haggard’s She (1887), and Thomas Hardy’s Jude the Obscure (1895). This study reexamines the cultural and political roles of the novel in light of “new evidence” that many nineteenth-century novels were “lawless”—showing contempt for, rather than policing, the law.

“Kristin Kalsem’s In Contempt makes a significant contribution to scholarship on the history of feminist jurisprudence. She covers thorny legal issues including married women’s property, infanticide, and lunacy law, as well as birth control, imperialism, and women’s admission to the bar. In her afterword she urges scholars to engage the ‘new evidence’ she has brought to light—and I have no doubt that this evidence will be welcomed enthusiastically.”

Christine L. Krueger, professor of English, Marquette University

Kristin Kalsem received her J.D. from the University of Chicago Law School and her Ph.D. in English from the University of Iowa. She is professor of law and co-director of the Center for Race, Gender, and Social Justice at the University of Cincinnati College of Law.

New York University Announces a New Database On the History of Undercover Reporting

From James Devitt, New York University:

NYU Launches History of Undercover Reporting Database
New York University has launched a database chronicling undercover journalism dating back to the 1800s. The archive, “Undercover Reporting,” includes an array of stories, ranging from the slave trade in 1850s to efforts to boycott Jewish-owned businesses in the U.S. in the late 1930s to treatment of soldiers at Walter Reed Army Medical Center in the 21st century.
The database, www.undercoverreporting.org, is a joint endeavor of Professor Brooke Kroeger of NYU’s Arthur L. Carter Journalism Institute and the university’s Division of Libraries, where the Digital Library Technology Services team developed the online platform that hosts the database, with consultation from the Libraries’ Office of Digital Scholarly Publishing and its Collections and Research Services.
“Much of this material has long been buried in microfilm in individual libraries and thus very difficult to retrieve,” said Kroeger, who conceived and directed the project. “Most digitized newspaper archives do not go back past the 1980s or 1990s and even for those that do, it's difficult to search without exact details of the piece you are seeking.”
The database is designed for scholars, student researchers, and journalists, who can search by writer, publication, story topic, or method (e.g., prison infiltrations, shadowing migrants, impersonation, etc.). It also includes critics’ reactions to these tactics—for instance, their response to the use of hidden cameras.
The database coincides with the publication of Kroeger’s Undercover Reporting: The Truth about Deception (Northwestern University Press, Aug. 31, 2012), which emerged from this research. In the book, Kroeger posits that this type of journalism is not separate from the profession’s conventional practices but, rather, embodies some of its most important tenets—the ability to extract significant information or to create indelible, real-time descriptions of hard-to-penetrate institutions or social situations that deserve the public’s attention.
“Researching the book changed my perception of the practice and its role in journalism history, making clear how early reporters were experimenting with the method--notably northern reporters working to expose the slave trade in the south in the years leading up to the Civil War,” explained Kroeger.

The project is supported by NYU’s Humanities Initiative and the university’s Faculty of Arts and Science.

For more on the Arthur L. Carter Journalism Institute, go to
http://journalism.nyu.edu/; for more on NYU’s Division of Libraries, go to http://library.nyu.edu/; for more on the Division of Libraries Digital Library Technology Services, go to http://dlib.nyu.edu.

Law On the Stage

The ABA Journal has posted its August 2012 Law In Popular Culture feature: this year it focuses on the theater's top twelve courtroom dramas. The jury's picks are The Merchant of Venice, Twelve Angry Men, Inherit the Wind, Judgment at Nuremberg, Witness for the Prosecution, The Caine Mutiny Court-Martial, A Man For All Seasons (which the feature has listed as The Man For All Seasons), Anatomy of a Murder, A Few Good Men, Chicago, Oedipus the King, and The Man in the Glass Booth.

I like all these choices, although I might have chosen some others in place of one or two of these, for example. What about The Andersonville Trial?

Which are your favorite courtroom plays?

The Mewsroom

Aaron Sorkin's HBO cast/cats. Is that a feliny?

Obama's Blackness

SpearIt, Saint Louis University School of Law, has published Why Obama is Black: Language, Law and Structures of Power at 1 Colum. J. Race & L. 468 (2012). Here is the abstract.

This essay offers a theoretical backdrop for mapping the law’s influence on common language, and more importantly, how concepts rooted in racism maintain in the American lexicon through the force of law. It examines the legal and social constructions of whiteness to argue that racial language and ideals of white superiority work in tandem to produce structural racism. Centuries of racial sedimentation have made some aspects of racism invisible to the eye, yet analysis of the post-racial concept as it relates to the president shows that debates on race and color are fundamentally flawed. Today’s racism is not simply the aggregate of individual interactions, but also political and institutional discrimination, and in particular, language authorized by law. This essay exposes the post-racial concept as a type of wishful thinking, and more critically, explains how the law prevents this wish from being fulfilled; indeed Obama has been offered up as the first “black” president despite the relentless “one drop” logic that supports the evidence.

Download the article from SSRN at the link. 

Southern Humanities Council Conference Call For Papers

From Keith Harmon, information on the Southern Humanities Council Conference

Call for Papers
Southern Humanities Council Conference
January 31-February 3, 2013The Hilton Savannah Desoto, Savannah, Georgia
“Boundaries: Real and Imagined”The 2013 Southern Humanities Council Conference invites proposals for papers on the theme “Boundaries: Real and Imagined.” The topic is interdisciplinary and invites proposals from all disciplines and areas of study, as well as creative pieces including but not limited to performance, music, art, and literature. Send proposals of 300-500 words to Mark Ledbetter at shcouncil@gmail.com or if sending by U.S. Postal Service,  Mark Ledbetter, Executive Director, SHC, Box 2546, The College of St. Rose, 432 Western Avenue, Albany, NY 12203.  If possible, send all proposals by email.  Proposals are due by December 15, 2012. The conference registration fee is $100.00 or $85 for unaffiliated scholars and graduate students. Membership in SHC is $30.00 or $15 for unaffiliated scholars and graduate students.  Conference participants must pay membership and registration to attend and/or present at SHC.  You may visit our website at http://southernhumanities.ning.com/. Topics are not limited to but may address any of the following areas. Pairings are not intended to imply binary thought, but rather to suggest a tradition of boundaries, real and imagined, for your considerations.
“Boundaries: Real and Imagined”

Sexuality	Culture
Geography	East and West
Gender	Social Class
Race/Ethnicity	Performance
The Academy/Disciplines	Religion/Science
Humanities/Science	Poetry
Fiction/Non-Fiction	Memory/History
Body/Soul	Music
Virtues/Vices	Love/Lust
Pleasure/Pain	Pleasure/Desire
Art	Self/Other
Human/Animal	Human Beings/Machine
Sacred/Secular	Longing/Restraint/Constraint

Remembering James Otis

Thomas K. Clancy, West Virgina University College of Law; University of Mississippi School of Law, has published The Importance of James Otis in volume 82 of the Mississippi Law Journal (2012). Here is the abstract.

Historical analysis remains a fundamentally important tool to interpret the words of the Fourth Amendment and no historical event is more important that James Otis’ argument in the Writs of Assistance Case in 1761. The Writs case and the competing views articulated by the advocates continue to serve as a template in the never-ending struggle to accommodate individual security and governmental needs. In that case, James Otis first challenged British search and seizure practices and offered an alternative vision of proper search and seizure principles. No authority preceding Otis had articulated so completely the framework for the search and seizure requirements that were ultimately embodied in the Fourth Amendment. More fundamentally, Otis’ importance then and now stems not from the particulars of his argument; instead, he played and should continue to play an inspirational role for those seeking to find the proper accommodation between individual security and governmental needs. Otis proposed a framework of search and seizure principles designed to protect individual security. James Otis, his vision, and his legacy have become largely forgotten outside a small circle of Fourth Amendment scholars. This essay is a modest attempt to recall his importance for contemporary construction of the Fourth Amendment.

Download the article from SSRN at the link. 

Pedro Almodovar's "High Heels"

Monica Lopez Lerma, University of Helsinki Faculty of Law, has published Law in High Heels: Performativity, Alterity, and Aesthetics, at 20 Southern California Interdisciplinary Law Journal 2 (2011). Here is the abstract.

Pedro Almodovar's High Heels (the original Spanish title, Tacones Lejanos, literally means 'distant heels') is a 1991 postmodern film that celebrates performance, fluidity, and fragmentation as ways of being in and understanding the world. In a generic combination of melodrama, comedy, musical, and film noir, High Heels tells the story of a turbulent mother daughter relationship, and a judge's criminal investigation following the murder of the daughter's husband (who also happens to be the mother's former lover). In recent years, Almodovar's film has received the attention of Orit Kamir, a law-and-film feminist scholar who opens up a refreshing line of inquiry. Kamir uses the film as a powerful site and as a means to explore alternative feminist images of law, judgment, and justice. In this Article, I provide new insights into Kamir's feminist jurisprudential reading of the film by placing it within the framework of postmodern jurisprudence, performativity, and queer aesthetics. My aim is to reconceptualize law through an ethics of alterity, and to further theoretical developments in postmodern accounts of judgment, ethics, and justice.

Download the article from SSRN at the link. 

François Hollande On the Holocaust

From Richard Weisberg

The following Israeli editorial aptly summarizes both the excellent recent statement about Vichy by France's new President and some of the debate that, predictably, has followed. The clarity of Pres. Hollande's statement reiterates, at some distance, the findings of scholars such as myself, about France's responsibility for the wrongdoing against Jews. The Commission in Paris that now administers individual restitution for Vichy's victims has also been mentioned in news stories, eg the NYT on 7/16. I have been over-seeing that Commission's work for over a decade.It is much to France's credit that they are, in different ways and after many decades of self-congratulatory denial, coming to grips with this sad history.However, there are voices of revisionism, some from surprising quarters.I look forward to hearing from you if you have views on these developments.Regards, Richard Weisberg 

Subject: today editorial, 7/31 "Haaretz"

 Whose crime is it?

Schoolteachers have long complained about the difficulties of teaching this chapter in French history. 'The Holocaust is not the history of the Jewish people; it is history, our history,' said Hollande.

Adar Primor | Jul.31, 2012

"The truth is that the crime was committed in France, by France." One sentence, a few simple, clear words, but how loaded. And how, it turns out, controversial. Still.
President Francois Hollande, under 100 days in the Elysees and has already notched up one of the most historic, powerful, and resonant speeches ever heard in the French Fifth Republic.
That sentence became the focus of the speech he gave last week at a ceremony marking the 70th anniversary of the Vel d'Hiv roundup. It was the largest Aktion carried out on French soil. In July 1942, more than 13,000 Jews from Paris and its environs were arrested. The Jews were concentrated in the Winter Velodrome and from there, most were sent to their annihilation in Auschwitz.
"The crime was committed in France"? Clearly. "By France"? Absolutely not. So it was claimed, once again, following Hollande's speech. For decades the French looked in the mirror and saw reflected in it a nation of a great revolution, a nation of enlightenment and human rights, a land of refuge and emancipation. When they skipped forward, historically, to World War II, the reflection in the mirror was that of General Charles de Gaulle and Free France, of the Resistance and Righteous Gentiles.
For decades the history of France was blurred, concealed, or even denied, until it was forgotten. But in 1995 President Jacques Chirac decided to shatter the deceitful mirror and put an end to the amnesia. He accepted responsibility for the crimes of the Vichy regime, which collaborated with the Nazis. He did it in France's name. Chirac sought "to kill" the old myth.
Hollande, 17 years later, came to verify the kill: France is a country of "anonymous heroes," who are responsible for saving 75 percent of France's Jews, Hollande noted, justly. But France, he added, also initiated the Vel d'Hiv hunt, organized it, and sent its citizens to their deaths.
One cannot, therefore, accept any longer the claim which holds that the Vichy government was nothing but an executive branch of the Nazis that was imposed on France. The horrific crimes were perpetrated by French individuals, in the name of the French people and France. This collective must take responsibility.
Again and again Hollande repeated in his speech the words that in his view comprise historic justice: "truth" (which there is an obligation to state ), "oblivion" (which he vowed to combat ), and "memory" (which he undertook to nurture ). His words take on special meaning in view of a new poll that has found that 42 percent of the French (and 60 percent of young people ) are unaware of the Vel d'Hiv raid.
Schoolteachers have long complained about the difficulties of teaching this chapter in French history. Hollande addressed them in his speech: "The Holocaust is not the history of the Jewish people; it is history, our history. There must not be a single institution in which it is not learned in full."
Hollande vowed to fight "with the greatest determination" against anti-Semitism and "all manner of historical distortion, relativization of the Holocaust and attempts to mar its singularity."
The importance of Hollande's speech is likewise inherent in its message, namely that morality has no political borders. Hollande created an affinity between himself and the right-wing president Chirac, and dissociated himself from the legacy of his mentor, Francois Mitterrand, who in his youth had joined the Vichy regime.
"The truth never has the power to divide, only to unite," Hollande said in his speech and thereby revealed his naivete. The far right lashed out at him for "besmirching France's image" and demanded that he "stop blaming the French." Similar tunes have also been heard in circles that are considered moderate. Bruno Le Maire, the former agriculture minister under Nicolas Sarkozy, who is running for his party's leadership, attacked "the grave mistake of the president, who confused the French state (Vichy ) with France." Henri Guaino, Sarkozy's senior adviser, announced that he is "shocked" by Hollande's declaration. "His" France, after all, resided in London during the war, not in Vichy.
Hollande's speech is an historic milestone. But as it turns out collective French responsibility still has its work cut out for it.

The Origins of Coke's Common Law Thinking

Ian Williams, Faculty of Laws, University College London, has published The Tudor Genesis of Edward Coke's Immemorial Common Law at 43 Sixteenth Century Journal 103 (2012). Here is the abstract.

Edward Coke is well-known for his unhistorical approach to the common law and the ensuing myth of the ancient constitution. He is often taken as representative of common lawyers, an important group in the intellectual life of early-modern England. This article seeks to investigate Coke’s views on legal history, expanding upon Pocock’s seminal work in the field by demonstrating that Coke’s historical views were not a Jacobean development or a response to external circumstances. His views had been held, and propagated, since the early stages of his career as a lawyer and were shared by other lawyers. The article uses evidence of Coke’s reading of law books to demonstrate Coke’s historical method, showing how and why he reached unhistorical conclusions about the antiquity of the common law, and why Coke believed those conclusions to be factually accurate. Coke’s method was ahistorical, but used an approach to the understanding of texts which was widespread in early-modern England. The article also shows that Coke’s approach to historical sources can also be seen in the work of other lawyers.

Download the article from SSRN at the link.

The Origins of Slavery In Early Virginia

David Lyons, Boston University School of Law, has published Slavery and the Rule of Law in Early Virginia, as an APSA 2012 Annual Meeting Paper. Here is the abstract.

Many of us learned that slavery began in the English North American colonies in1619 when twenty Africans were purchased from the crew of a Dutch ship that had stopped at Jamestown for provisions. Colonial records do not tell us the fate of the Africans who arrived in Jamestown’s early years. This paper uses legislative and judicial records to reconstruct that history. The institution was not imported from England, under whose laws (which governed its colonies) one person could not own another. Chattel slavery was created by the colonial elite who decided to make their very profitable tobacco industry even more profitable by using slaves instead of contract labor. Colonial records reveal that unlawful enslavement was officially tolerated for decades; that it was incrementally regulated to meet slave owners’ felt needs; and that it was not legally authorized until late in the seventeenth or early in the eighteenth century.

Download the paper from SSRN at the link. 

Literature and Intergenerational Justice

Elizabeth Markovits, Mount Holyoke College, has published Doddering Dotards and Brazen Ingrates: Archê and Finitude in Aristophanes, as an APSA 2012 Annual Meeting Paper. Here is the abstract.

Intergenerational justice has recently arrived (or resurfaced?) on the political theory scene in a big way. A number of scholars are trying to work out what we owe future generations in a general sense, while others are figuring out exactly what political rights children and not-yet-existing people may have. Yet almost all this work looks at the problem as a question of future generations, moving forward temporally to the generations after us, whether already born or not yet existing. In this paper, I want to engage in some looking backward: what are the demands of intergenerational justice when it comes to previous generations? While work on memory and historical injustice address some of the concerns here, I am specifically interested in still-existing generations, citizens who remain with us, but who are “past their prime” — that is, power has shifted to younger citizens. What does it mean to live in a temporal continuum, ceding power over what we have created to those who come after? How does our mortality figure into democratic freedom? While questions about old age obviously have moral import, there is also a political dimension. These are questions about power, how it circulates in a shared world, and how we can best temper its potentially destructive edges. To begin this exploration, I turn to Aristophanes and his use of the old man figure in Knights. In this work, Aristophanes presents a particular notion of old age, one that highlights its difficulties in a polity that demands youthful vigor. The essay then moves to Aristophanes’ portrayal of intergenerational dynamics in Clouds to probe the nature of these difficulties and what meaning they hold for democracy more generally. Because he so consistently draws upon the elderly figure, and because his work directly engages with the democratic life of Athens, Aristophanes provides readers with a wealth of material for thinking about the relationship between aging, democratic politics, and a robust sense of intergenerational justice.

Download the paper from SSRN at the link. 

(Legal) Word Fight!

Lucy Ferriss discusses the exploits of forensic linguists in an essay for the Chronicle of Higher Education here.  More about what forensic linguists are and do here in the New Yorker (subscribers have access to the complete article). Aston University has a center devoted to the subject; more here.

I Vant To Drink Your Ink

Plagiarism Today explains how we have copyright law to thank for our familiarity with the conventions of vampire lore. More here.

Thanks to Gordon Firemark for the tip.

Language and Property In Sarah Fielding's "David Simple"

Simon Stern, Faculty of Law, University of Toronto, has published Speech and Property in David Simple at 79 ELH: English Literary History 623 (Fall 2012). Here is the abstract.

Throughout Sarah Fielding's 1744 novel David Simple, conflicts over the citation, attribution, and withholding of others’ words are associated with property disputes and with acts of impersonation. The novel’s villains, driven by anxieties about scarcity, repeatedly seek to appropriate their victims’ material and verbal resources, reflexively categorizing them as a kind of property. These manipulative tactics — and the novel’s ambivalent attitude towards direct quotation — point to concerns implicit in contemporaneous thought about literary property, involving the problems associated with converting words into property and the difficulty of controlling what happens to them as a result.

Download the article from SSRN at the link. 

Teaching Techniques

Deborah Schander started the wiki "I've Got a Hit," devoted to using popular culture to teach legal issues. Check it out here.

Violence In the Dark

Reflecting on the Aurora, Colorado theater shootings, Stephen Marche discusses the link between violent acts and violent art. Check out his essay in the New York Times. 

Legal Intellectuals and Their Impact On Society

James R. Hackney, Jr., Northeastern University School of Law, has published Legal Intellectuals in Conversation: Reflections on the Construction of Contemporary American Legal Theory (New York University Press, 2012). Here is the abstract.

In this book the author examines the trajectory of American legal theory in the late 20th century by way of interviewing ten leading theorists. The interviews conducted with Bruce Ackerman, Jules Coleman, Drucilla Cornell, Charles Fried, Morton Horwitz, Duncan Kennedy, Catharine MacKinnon, Richard Posner, Austin Sarat, and Patricia Williams cover a wide breadth of contemporary legal theory — including law and economics, critical legal studies, rights theory, law and philosophy, critical race theory, critical legal history, feminist theory, postmodern theory, and law and society. The topics raised in the conversations include the early lives of interviewees as thinkers and scholars, their contributions to American legal theory, and their thoughts regarding some fundamental questions in legal academe.

Property and Money In Law and Literature

Andreas Rahmatian, University of Glasgow School of Law, has published Literature as a Set of Norms: The Fictions or Legal Concepts of Property and Money as Examples. Here is the abstract.

The common approach to law and literature is either looking at the law and legal process as depicted by literature (such as Dickens’s Bleak House or Kafka’s Trial), or at the law itself as a form of literature. But it does not commonly seem to be noticed that not only law could be literature, but literature could also be law. Both share the underlying components, words, which may render ideas into reality by prompting certain human behaviour according to their directions. The underlying language is a score which prescribes a type of performance, either in one’s mind, or in reality, and in any case, a pattern of human behaviour. Language, either rendered in literature in the usual meaning (for example as a novel), or language, words and figures, in form of a technical usage, can create norms. Thus literature, broadly understood, can either describe norms or create norms. This can be studied by looking at legal concepts of property, especially intellectual property, and money. The legal concepts of property, intellectual property and money can be regarded as instances of fiction, like a film script or theatre play. Literary and legal concepts share the same origin of fictional writing, the difference being that the words of a writer may entail a certain human behaviour, whereas the words of the law must lead to a certain human behaviour which is compulsory. This critical evaluation of the common source of concepts and characters in literature as well as in law invites a critical reassessment of the immutability and authority of certain legal concepts and also calls for a respectful consideration of the writers and playwrights: literature can be an authoritative force, at least an indirect one.

Download the paper from SSRN at the link. 

New Issue of Nineteenth Century Gender Studies Devoted To Law and Gender

The new issue of the journal Nineteenth-Century Gender Studies (Summer 2012) centers on law and gender. It includes many interesting articles and book reviews, including Christine L. Krueger's "The Queer Heroism of a Man of Law in "A Tale of Two Cities" and Catherine Siemann's "Appellate Lawyers in Petticoats: Access to Justice in Wilkie Collins's "The Law and the Lady."

Thanks to Simon Stern of the University of Toronto School of Law and Department of English for alerting me to this very interesting issue.

Evidentiary Rules and "The Crucible"

Martin H. Pritikin, Whittier Law School, is publishing Can Law and Literature Be Practical? The Crucible and the Federal Rules of Evidence in the West Virginia Law Review. Here is the abstract.

Counter-intuitively, one of the best ways to learn the practice-oriented topic of evidence may be by studying a work of fiction — specifically, Arthur Miller’s The Crucible, which dramatizes the 17th century Salem witch trials. The play puts the reader in the position of legal advocate, and invites strategic analysis of evidentiary issues. A close analysis of the dialogue presents an opportunity to explore both the doctrinal nuances of and policy considerations underlying the most important topics covered by the Federal Rules of Evidence, including relevance, character evidence and impeachment, opinion testimony, hearsay, and the mode and order of interrogation.

Download the article from SSRN at the link. 

Women's Citizenship and Marriage In the Nineteenth Century

Helen Irving, University of Sydney Faculty of Law, has published When Women Were Aliens: The Neglected History of Derivative Marital Citizenship as Sydney Law School Research Paper No. 12/47. Here is the abstract.

Between the mid-nineteenth and mid-twentieth centuries, in virtually every country in the world, women who married foreign men were stripped of their citizenship, and turned into aliens in their own country. Marital denaturalization laws were supported by the international community until well after the Second World War: single citizenship, family unity, diplomatic convenience, and inter-state comity, were treated as imperatives that overrode women’s independent personal status. Such laws, which expanded at the very time when women were gaining legal and political rights, impacted radically, sometimes tragically, on individual lives, including rendering many thousands of women stateless. This essay gives an account of the emergence and evolution of such laws, with particular reference to Britain and the United States. It provides a ‘snapshot’ of individual cases, and an overview of the international community’s response.

Download the paper from SSRN at the link. 

Reality Show Judging On TV

Cynthia D. Bond, The John Marshall Law School (Chicago), is publishing "'We, the Judge(s)': The Legalized Subject and Narratives of Adjudication in Reality T.V., in the UMKC Law Review. Here is the abstract.

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

The full text is not available from SSRN. 

Calling Perry Mason

Do you like Erle Stanley Gardner's Perry Mason novels? If so, and you've had a hard time finding them (many are out of print), then you may be happy to know the publisher is releasing a number in digital format at reasonable prices (under $6) for the Kindle. Titles include The Case of the Perjured Parrot, The Case of the Horrified Heirs, The Case of the Fabulous Fake, and the Case of the Fiery Fingers. I do love those alliterative titles. 

What I Really Want To Do Is Write

The Journal of Legal Education has announced the Top Ten Winners in its first Legal Fiction Contest. They are: Steven Semeraro, Peter Brennan, Gerald T. Hendrickson, Leslie Gielow Jacobs, Kyle Mallinak, Melissa F. Miller, Patrick C. O'Reilly, Risa Peris, John Power, and Marc Weitz. More here. You'll be able to read the winning work in the February 2013 issue of the JLE  (another ten winning entries will appear online).

The Second Amendment and European Human Rights

Stephen P. Halbrook has published Why Can’t We Be Like France? How the Right to Bear Arms Got Left Out of the Declaration of Rights and How Gun Registration Was Decreed Just in Time for the Nazi Occupation. Here is the abstract.

Should the Second Amendment to the U.S. Constitution be watered down to protect little if any right of the people to keep and bear arms according to European models? Disregarding that the United States originated in its Revolution based on that very right, recent suggestions by some Justices on the Supreme Court appear to think so. This same debate has been played out in Congress, where registration of firearms, supported by arguments in support of European models, have been rejected. This article counsels “be careful what you wish for,” using the experiences of France as the paradigm.

Download the paper from SSRN at the link. 

Who Read Wollstonecraft?

Eileen Hunt Bottin, University of Notre Dame, is publishing Wollstonecraft in Europe: A Revisionist Reception History, 1792-1904 in the History of European Ideas (forthcoming). Here is the abstract. 

It has often been repeated that Wollstonecraft was not read for a century after her death in 1797 due to the negative impact of her husband William Godwin’s 'Memoirs of the Author of a Vindication of the Rights of Woman' (1798) on her posthumous reputation. By providing the first full-scale reception history of Wollstonecraft in continental Europe in the long nineteenth century — drawing on rare book research, translations of understudied primary sources, and Wollstonecraft scholarship from the nineteenth century to the present — this article applies a revised Rezeptionsgeschichte approach to tracing her intellectual influence on the woman question and organized feminism in Europe. Although the 'Memoirs' and post-revolutionary politics everywhere dampened and even drove underground the reception of her persona and ideas in the first decades of the nineteenth century, Wollstonecraft’s reception in nineteenth-century continental Europe, like the United States, was more positive and sustained in comparison to the public backlash she faced as a 'fallen woman' in her homeland of Britain through the bulk of the Victorian era.

The full text is not available from SSRN. 

A High Profile Crime In Early Twentieth Century Nevada

Carolyn B. Ramsey, University of Colorado Law School, has published A Diva Defends Herself: Gender and Domestic Violence in an Early Twentieth-Century Headline Trial, at 55 St. Louis University Law Journal 1347 (2011). Here is the abstract.

This short article was presented as part of a symposium on headline criminal trials, organized by St. Louis University School of Law in honor of Lawrence Friedman. It describes and analyzes the self-defense acquittal of opera singer Mae Talbot in Nevada in 1910 on charges of murdering her abusive husband. Based on extensive research into archival trial records and newspaper reports, the article discusses how the press, the court, and trial lawyers on both sides depicted the killing and Mae’s possible defenses. Without discounting the sensationalism and entertainment value, to a scandal-hungry public, of stories about violent marriages, I contend that press coverage of Mae Talbot’s trial and others like it served an important social function. It helped to make intimate-partner violence a public issue and to define men’s brutality toward their wives as improper and unmanly. However, the newspapers did not always get the story right. Despite reporters’ speculation that Mae would plead insanity, her defense team centered its case on the alternative theories of justifiable homicide and accident. The jury instructions given in the case and filed with the Washoe County Court tell an even more interesting story of a judge who supplemented black-letter self-defense law with commentary on gender roles and the decline of men’s right to beat their wives. The newspapers, the defense lawyers, and ultimately the trial judge all seemed to see the case as one in which the deceased’s wrongful behavior — that is, his brutality toward the defendant — played a central role. Mae was acquitted because she killed a man widely perceived to have violated his duties toward her as a husband. Although she was a glamorous entertainer, her case resonated with the acquittal of many ordinary women accused of murdering their batterers in the late 1800s and early 1900s. 

Download the article from SSRN at the link. 

Judicial Use of the Phrase "The Perfect Storm"

Carol McCrehan Parker, University of Tennessee, Knoxville, College of Law, has published The Perfect Storm, the Perfect Culprit: How a Metaphor of Fate Figures In Judicial Opinions, at 43 McGeorge Law Review 323 (2012). Here is the abstract.

After the publication of a book and release of a movie, both titled “The Perfect Storm,” the phrase, “it was a perfect storm,” entered the popular culture in apparently limitless contexts, including at least 140 judicial opinions. Apparently even by those who have never read the book or seen the movie, a reference to “a perfect storm” is understood to embody the story of a fishing boat lost in a terrible storm, in which multiple forces converged in a singular event to produce devastating consequences which could not have been foreseen or prevented. Nothing could have been done to prevent the damage, and no one is to blame.

This article discusses the construction of the perfect storm metaphor and examines how its narrative elements figure in judicial opinions. By emphasizing the convergence of forces, the metaphor promotes a view of multiple causation as “perfect” and separate from human agency. By emphasizing the singular quality of the storm, the metaphor invites arguments urging a highly contextualized reading and suggesting that since a perfect storm is unlikely to recur, any precedential effect of the case so described will be minimal. By conjuring up the awesome and mysterious forces of nature, the metaphor may work to absolve individuals of responsibility for the consequences of their own actions. In short, the perfect storm is the perfect culprit.

Download the article from SSRN at the link. 

New Book From Desmond Manderson

Desmond Manderson has published Kangaroo Courts and the Rule of Law--The Legacy of Modernism with Routledge. Here is the description of the book's contents from the publisher's website.

Kangaroo Courts and the Rule of Law -The Legacy of Modernism addresses the legacy of contemporary critiques of language for the concept of the rule of law. Between those who care about the rule of law and those who are interested in contemporary legal theory, there has been a dialogue of the deaf, which cannot continue. Starting from the position that contemporary critiques of linguistic meaning and legal certainty are too important to be dismissed, Desmond Manderson takes up the political and intellectual challenge they pose. Can the rule of law be re-configured in light of the critical turn of the past several years in legal theory, rather than being steadfastly opposed to it? Pursuing a reflection upon the relationship between law and the humanities, the book stages an encounter between the influential theoretical work of Jacques Derrida and MIkhail Bakhtin, and D.H. Lawrence's strange and misunderstood novel Kangaroo (1923). At a critical juncture in our intellectual history - the modernist movement at the end of the first world war - and struggling with the same problems we are puzzling over today, Lawrence articulated complex ideas about the nature of justice and the nature of literature. Using Lawrence to clarify Derrida’s writings on law, as well as using Derrida and Bakhtin to clarify Lawrence’s experience of literature, Manderson makes a robust case for 'law and literature.' With this framework in mind he outlines a 'post-positivist' conception of the rule of law - in which justice is imperfectly possible, rather than perfectly impossible.