Constitutional Compromise

The February 27, 2013 "Room For Debate" section of the New York Times is devoted to the issue of "The Constitution's Immoral Compromise" the Three-Fifths compromise in Article 1, Section 2, paragraph 3 of the US Constitution:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years and excluding Indians not taxed, three fifths of all other Persons.

Five scholars weigh in provocatively and thoughtfully on the political and moral necessary of this compromise: Paul Finkelman (Albany Law), Henry L. Chambers, Jr.,  (Richmond Law), Leslie M. Harris (Emory) Sanford Levinson (University of Texas Law), and Ray Diamond (LSU Law).

No Laughing Matter, Your Honor

From the ABA Journal, a story about a judge who moonlights as a stand-up comedian. But this jurist, South Hackensack Municipal Court Judge Vince Sicari, who uses the name Vince August when he practices as a jokester, is in trouble with the New Jersey Advisory Committee on Extra-Judicial Activities. The Committee says he shouldn't be clowning around; doing such brings the judiciary into disrespect. According to the Columbus Telegram, Judge Sicari says he doesn't mix his two personas--judge and comedian. The New Jersey Supreme Court is hearing an appeal from the judge over whether he should be allowed to continue making people laugh--outside the courtroom.

History, Law, and Story

Manohla Dargis and A. O. Scott discuss whether Hollywood has any responsibility to history in its storytelling. Here's the article in the February 22, 2013 issue of the New York Times. Meanwhile, relatives of a victim of the 9/11 attacks object to the use of her recorded voice in "Zero Dark Thirty." What are the limits of artistic license?

Two Articles On Law and Literature

José Calvo González, School of Law, University of Malaga, has published El Delincuente Honrado (1773) de Gaspar Melchor de Jovellanos, in REJIE: Revista Jurídicade Investigación e Innovación Educativa (No. 7, January 2013), pp. 9-30.

Also of interest: Luis Rosenfield, Ponitifica Universidade do Rio Grando do Sul, Brasil, has published

Terrorismo, Tortura e Direitos Humanos: Reflexoes a partir de O Prisioneiro,Erico Veríssimo, in REJIE: Revista Jurídica de Investigación e Innovación Educativa, (No. 7 January 2013), pp. 31-50.

Use the First Amendment For Good--Tweet Expressively--In 140 Characters, Or Fewer

The State Bar of Texas Appellate Section announces the winners of its Twitter Brief competition for 2012. The winner for Best Haiku Twitter Brief? A piece by Ryan P. Bates.

Hope springs eternal,

But second or successive. 

Deny habeas.

Hop on over to read all the winning briefs at the Section's website here.

Mississippi Finally Files Its Paperwork

The state of Mississippi finally ratified the Thirteenth Amendment, which outlawed slavery in the U.S., in 1995. But the paperwork didn't actually reach the National Archives until this month. Why did it take so long? It might have taken even longer. Dr. Ranjan Batra, who works for the University of Mississippi Medical Center, happened to see Lincoln, the Steven Spielberg film, and wondered when the state ratified the amendment. He found the record of the state's vote, dated 1995, but no indication that Mississippi was listed in national records as having ratified the amendment, and mentioned the fact to a co-worker, Ken Sullivan. Dr. Sullivan took up the question with Mississippi's present Secretary of State, who dug out the paperwork, to discover that the paperwork was never sent in to the National Archives; he sent it in. Dr. Sullivan received notice of the National Archives' recordation on Lincoln's birthday. Another example of the power of film, and the power of Lincoln.

Here, Jon Stewart has fun with Mississippi's embarrassment over failing to file 13th Amendment paperwork.

More On Richard III

The current issue (February 8, 2013--available in digital version only) of Newsweek has several articles on the identification of Richard III's bones and the meaning of the find. Simon Schama weighs in with a discussion of whether the simple discovery of the king's skeleton means anything at all about his character or legacy. Harold Booth discusses Shakespeare's version of Richard, and how it necessarily differs from reality. Dan Jones explains some of the science involved in identifying the bones and linking them to Richard's living relatives. And the impact of the discovery? One controversy has popped up: where to rebury the last Plantagenet king of England. Apparently the present Queen has nixed the idea of interring him in Westminster Abbey with other English monarchs. Should he be reburied where he has laid for centuries? That's presently a parking lot. Should he, nevertheless, stay in Leicester, the city where he died? Or be moved to York, where he spent much of his short life (he died at 33)? What are the burial rights of a king who had no direct heirs, died in battle, and lost his kingdom? After all, the victors tend to write history.

More speculation here on Richard's actual face and voice, reproduced via a commission by the Richard III Society.

Richard III Identified

From CNN: Scientists working on the bones found in a parking lot ("car park" in British parlance), the site of an archaelogical excavation, have announced that they are now certain that the bones are those of Richard III, the last Plantagenet king of England. The investigators obtained mitochrondrial DNA from a descendant of Anne Plantagenet, one of Richard's sisters, and matched it to DNA obtained from the bones. Once the scientists are finished with their research, Richard will be reburied at Leicester Cathedral. More here from the Guardian.

Agatha Christie, Literary Critic

The used book site abebooks.com features a post about fictional detectives here. Blogger Beth Carswell notes what the Guardian calls author Agatha Christie's "waspish" 1945 critique (for the Ministry of Information) of literary sleuths, discussed last year.

Lawyers Acting Badly Get Tips From Lawyers In(n) Court

NPR's Tanya Ballard Brown brings us the story of legal civility set to music here. In December of 2012, some members of the New York Inns of Court decided that a spoonful of sugar music would assist in explaining courtesy to attorneys who just don't get the message. Thus was born A Civility Seder, new lyrics and additional patter for some hits we already know, such as "If I Were a Rich Man" (Fiddler On the Roof) and "Age of Aquarius" (Hair). More here from the Wall Street Journal.

Well, we always knew a lot of lawyers are exhibitionists (in a good way).

Here Lies Richard III?

The BBC and other media report that Richard III's bones seem to have been discovered, six centuries after he died after the battle at Bosworth Field that cost him his throne and brought Henry Tudor to power in England. According to scientists at Leicester University, DNA studies are being run on the bones and on descendants of Richard's sister Anne to determine if the bones might indeed be those of the last Plantagenet king of England. The appropriately named Dr. Turi King explains that DNA from females is important to use in such tests because, "after death, the usual mechanisms which keep our DNA molecules long and healthy when we’re alive are no longer working and our DNA begins to break down. While there is only one copy of our genomic DNA in each of our cells, there are many, many copies of our mitochondrial DNA; so if anything is going to be left, it will be mtDNA....The other reason that mitochondrial DNA is so useful in this case is that it’s passed down the female line, from mothers to children (but only daughters pass it on)[.]”

Because he died on the battlefield and his body was lost, Richard was never buried honorably in a king's grave. Many literary works, including Sir Thomas More's History of King Richard III, which influenced Shakespeare in writing his Richard III, vilified him, because during the King's reign his young nephews Edward and Richard, the sons of Edward IV, disappeared. For a different view of Richard, see Josephine Tey's The Daughter of Time (1951), in which the detective Alan Grant attempts to reconstruct the mystery of the princes' disappearance and determines that Richard is innocent. See also attorney Bertram Fields's Royal Blood: Richard III and the Mystery of the Princes (Harper/Collins, 1998); Paul Murray Kendall's Richard the Third, (W. W. Norton, 1956); A. J. Pollard's Richard III and the Princes in the Tower, (St. Martin's Press, 1991), Charles Ross's Richard III, (Methuen, 1981), and Desmond Seward's Richard III: England's Black Legend (Penguin Books, 1997).   Of the filmed interpretations of Shakespeare's play, I particularly like Ian McKellan's 1995 version, with Annette Bening as Elizabeth Woodville, Kristin Scott Thomas as Anne Neville, Maggie Thomas as the Queen Mother, and Robert Downey, Jr. as Lord Rivers.

English Corporate Legal History, 1558-1640

Ron Harris, Tel Aviv University Buchmann Faculty of Law, has published Could the Crown Credibly Commit to Respecting its Charters? England, 1558-1640. Here is the abstract.

This chapter offers a twofold shift in the application of the ‘credible commitment’ concept laid down by North and Weingast in their classic 1989 article. It examines the concept in the context of charter-granting, rather than in that of the national debt and the government bond market, and applies the concept to the pre-Civil War period, rather than the post-Glorious Revolution period. The chapter focuses on charters for the incorporation of business corporations. At a basic level the puzzle is: if the state could not credibly commit to enforce or not to annual charters why were incorporators willing to pay for the charters and accompanying privileges? The chapter examines multiple mechanisms that could have succeeded in solving the commitment problem: reputation, type of charter activity and its organizational form, the law and judiciary, the extent of parliamentary or common law restraint on the sovereign and interest groups organizing to discourage default. Four case studies demonstrate how each of these mechanisms functioned. This chapter shows the usefulness of the ‘credible commitment’ framework. A nascent rule of law, unavailable elsewhere in Europe, explains the widespread use of charters and corporations in late Tudor and early Stuart England.

Download the chapter from SSRN at the link. 

"Take Your Stinking Paws Off Me...!"

Jonas-Sebastien Beaudry, University of Oxford, has published Of Apes and Men as Oxford Student Legal Studies Paper No. 01/2013. Here is the abstract.

Speciesism is generally taken to refer to the arbitrary preference for one's own species and cast in a morally negative light. My contention is that there are various kinds of speciesism and that it is sometimes morally acceptable. To make this point, I will focus on the 1968 movie The Planet of The Apes which offers instructive examples to test our intuitions on the matter.

Download the paper from SSRN at the link. 

"Ripper Street" To Return For a Second Season

The BBC crime drama "Ripper Street" is returning for a season season next year. More here from The Guardian. The show airs on BBC America in the U.S.

Film as Memory

Jessica M. Silbey, Suffolk University Law School, is publishing Persuasive Visions: Film and Memory in Law, Culture, and the Humanities. Here is the abstract.

This commentary takes a new look at law and film studies through the lens of film as memory. Instead of describing film as evidence and foreordaining its role in truth-seeking processes, it thinks instead of film as individual, institutional and cultural memory, placing it squarely within the realm of contestability. Paralleling film genres, the commentary imagines four forms of memory that film could embody: memorabilia (cinema verite), memoirs (autobiographical and biographical film), ceremonial memorials (narrative film monuments of a life, person or institution), and mythic memory (dramatic fictional film). Imagining film as memory resituates film’s role in law (procedural, substantive and cultural) as authoritative rhetoric that must be disputed and reappropriated to serve the specific goals of justice.

Download the paper from SSRN at the link. 

Those Krazy Kollege Kids

....What will they think of next? Jose Calvo Gonzalez points out that John Rawls has made it to Broadway--well, the Oxford stage, anyway.

Those wild "Oxfordians" have set A Theory of Justice to music. (Don't know what they think about Shakespeare, but what uses they have for Rawls, Nozick, Kant, Aristotle, and the rest is pretty clear). And "they" said it couldn't be done.

Regulation of Weapons In the U.S. Through the Early 20th Century

Mark Anthony Frassetto, Georgetown University Law Center, has published Firearms and Weapons Legislation up to the Early 20th Century. Here is the abstract.

This document is a compilation of state firearms and weapons legislation from the colonial era until the start of the twentieth century. This research provides a comprehensive view of firearm and weapons regulations during this era. This document was created in an attempt to understand the historic scope of the Second Amendment in the wake of the Supreme Court's Heller and McDonald decisions. Relevant legislation is categorized by type as well as historical era. Sources are divided into four historical periods: (1) English, which includes English statutes up to the split with the American colonies in 1776; (2) Colonial, which includes statutes passed within the American colonies beginning in 1607 and continuing to the ratification of the Constitution in 1791; (3) Pre-14th Amendment; and (4) Post-14th Amendment.

Download the paper from SSRN at the link. 

Litigation and Reconciliation

Atiba R. Ellis, West Virginia University College of Law, has published Polley v. Ratcliff: A New Way to Address an Original Sin? in volume 115 of the West Virginia Law Review (2012). Here is the abstract.

This essay recites the history of the Polley v. Ratcliff litigation and interrogates its relevance for modern considerations of racial inequality in America. The Polley case began in 1850s with the wrongful kidnapping of the children of Mr. Peyton Polley, an emancipated African slave who lived in Ohio. The litigation continued from 1851 to 1859 without clear resolution. Although this incident has been discussed at length by historians, the litigation itself came to a remarkable conclusion on April 6, 2012. On that day, some 162 years after this Dred Scott-era kidnapping, Judge Darrell Pratt of the Circuit Court of Wayne County, West Virginia, entered a decree declaring that Mr. Polley wrongfully kidnapped children — Harrison, Louisa, and Anna — “were, and are, FREE PERSONS as of March 22, 1859."
This declaration represented a monumental historical moment in West Virginia history, and it represents, as this essay will argue, an opportunity to consider the question of what our societal response to slavery and racism has been over time and what it ought to be in the twenty-first century. The essay considers the various modes through which Americans look at the history of slavery and race-race consciousness, racial reparations, and post racialism — and then it argues that the Polley litigation represents a different model for considering the American history of race, a model akin to truth and reconcilliation.

Download the essay from SSRN at the link. 

The Impact of "Scandal"

Tanzina Vega discusses the impact of the ABC drama "Scandal" in an article in the January 20th issue of the New York Times. Link here. "Scandal" features the activities of Washington "fixer" Olivia Pope, played by Kerry Washington.

Law and Culture Study Abroad Through Tulane Law School

Tulane Law School is offering a summer abroad program in International Law, Cultural Heritage & the Arts in Siena, Italy, from June 2 to June 22 this year. More information is available at Tulane's website.

A New Book on Law and Literature From Jose Calvo Gonzalez

Our friend José Calvo González has published a new book, El Escudo de Perseo: La Cultura Literaria del Derecho (Granada, 2012).

Here is the table of contents.


Presentación . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . .             1
I PENSAMIENTO JURÍDICO
siglo xvii-xviii
Quevedo en tela de juicio, o sea el tribvnal de la ivsta vengança de luis pacheco de narváez. (De
contiendas literarias y Derecho en la España del s. xvii). . . . . . . . . . .       5
1.  Antecedentes de hechos . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . .            5
2.  «Fulminarle proceso». La contienda literaria como querella . . . . . . . . . . . . . . . . . .
. . . . . .          11
3.   Sobre iusta vindicta . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . .          19
4.   Para poner en tela de juicio. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . .          21
Títeres y derecho. La justicia y las justicias de Sancho en la ópera para marionetas
vida do grande d. Quixote de la Mancha e do gordo sancho Pança, de António José da
Silva (1705-1739) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . .           25
1.  António José da Silva en la cultura literaria cervantina ibérica y brasileña . . . . . . . . .
. . . . .          25
2.  António José da Silva y la cultura literaria del Derecho . . . . . . . . . . . . . . . . . . .
. . . . . . . . .          34
3.  La Justicia y las justicias de Sancho en la ópera para marionetas Vida do grande D. Quixote
de la Mancha e do gordo Sancho Pança . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . .          41
4.  António José da Silva, en reguero . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . .          51
Apéndice I. Vida do grande D. Quixote de la Mancha e do gordo Sancho Pança. Parte Segunda.
Cena IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . .          52
siglo xix
Naturalismo y direcciones criminológicas a finales del siglo xix en España . . . . . .           59
Odia el delito, y compadece al delincuente. Memoria de correccionalismo, antro-  pología cultural y
literatura popular . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      
 73
1.   «Odia el delito, y compadece al delincuente» . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . .          73
2.   Correccionalismo, y más . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . .          77


X                   el escudo de perseo. la cultura literaria del derecho. estudios
interdisciplinares




3.   «Odia el delito, y compadece al delincuente» desde la antropología cultural y la literatura
popular. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . .          80
4.   «Odia el delito, y compadece al delincuente». Colofón a día de hoy . . . . . . . . . . . . . .
. . . .          87
siglo xx
Derecho y literatura: Anatoliĭ Fedorovich Koni (1844-1927). Sobre Cultura jurídica de la literatura
y Cultura literaria del Derecho en la Rusia imperial de Alejandro
II a Nicolás II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . .          91
1.   La tradición jurídica liberal-moderada rusa a mediados del s. xix . . . . . . . . . . . . . .
. . . . . .          91
2.  Anatoliĭ Fedorovich Koni (1844-1927) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . .          94
3.   Koni y el Derecho desde la Literatura: Pushkin . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . .          98
4.   Koni y la Literatura desde el Derecho: Chéjov, Dostoievski y Tolstói. . . . . . . . . . . . .
. . . . .        104
5.  A modo de síntesis: sobre Cultura Jurídica y Cultura literaria en la Rusia imperial de
Alejandro
II a Nicolás II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . .        132
Sobre la geografía de la recepción literaria y jurídico-social tolstiana, con apunte
acerca del reformista social norteamericano Ernest Howard Crosby (1856-1907) . .       135
1.   Literatura y pensamiento tolstiano: geografía de una recepción . . . . . . . . . . . . . . . .
. . . . . .        135
2.   Ernest H. Crosby y la recepción ideológica de Tolstói en EEUU . . . . . . . . . . . . . . . .
. . . . .        158
Apéndice. Derecho y Literatura: Shakespeare and the Working Classes, por Ernest H. Crosby . .    
 173
Rousseau y Tolstói (Reflejos en el espejo pushkiano). . . . . . . . . . . . . . . . . . . . . . . .
. .        197
1.   Los eslabones. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . .        197
2.   Otro engarce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . .        199
3.   Una medalla y un anillo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . .        204
Justicia en trilce (1922) y escalas (1923) de César Vallejo . . . . . . . . . . . . . . . . . . . .
. .       207
1.   Trilce entre cuatro paredes albicantes. Esperanza de Justicia, y desespero . . . . . . . . . .
. . . .        207
2.   Escalas para alcanzar la Justicia: la evasión fallida . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . .        211

Derecho y Literatura. Notículas para una galería peruana: Enrique López Albújar
(1872-1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . .        221

II PERIODISMO JURÍDICO
Dickensiana. En torno a una crónica de tribunales, con digresiones. . . . . . . . . . . . .      
239
1.   Preliminar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . .        241
2.   Secuencia. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . .        243
3.   Más juristas que médicos . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . .        246
4.  Tóxicos jurídicos de Dickens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . .        249
5.   Post scriptum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . .        251
bionarrativa de la Justicia en el periodismo literario de César Vallejo . . . . . . . . . . .    
 253
0.   Bionarrativa: índole de una categoría . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . .        253
1.   Cesar Vallejo. Notículas biobibliográficas de 1910 a 1927 . . . . . . . . . . . . . . . . . .
. . . . . . . .        255
2.   El periodismo literario de César Vallejo . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . .        261
3.   La bionarrativa vallejiana de la Justicia en dos Crónicas judiciales de 1927 y 1926 . . . . .
. .        263
3.1.  Gaston Guyot, nuevo Landrú. La Justicia entre cortinas de humo rojo y una historia de
dualidades . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . .        263
3.2.  El otro caso de Mr. Curwood. La Justicia bajo examen de conciencia . . . . . . . . . . . . .
      266

sumario                                                                                          
                                                                    XI



La intimidad en el espejo de los media. Una mirada desde la Literatura y el Derecho .     269
III
TEORIA LITERARIA DEL DERECHO
Derecho y Literatura. Intersecciones instrumental, estructural e institucional .              297
0.  Geometría del jardín. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . .       297
1.   Una cuestión de nomenclatura, pero ante todo de orden metodológico . . . . . . . . . . . . . .
. . .        298
2.   Intersección instrumental . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . .        302
3.   Intersección estructural. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . .        308
4.   Intersección institucional . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . .        313
5.   Mirador al jardín . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . .        321
constitutional law en clave de teoría literaria: una guía de campo para el estudio.     323
1.  Sobre Teoría literaria del Derecho y Constitución . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . .        323
2.   Derecho & Literatura Constitucional. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . .        325
2.1.   Como top stories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . .        325
2.2.   Como fictional canon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . .        325
2.3.   Como foundational hypothetical narrative or myth . . . . . . . . . . . . . . . . . . . . . .
. . . . .        327
3.   Narrativa en las instituciones constitucionales. Últimos episodios . . . . . . . . . . . . . .
. . . . . .        330
3.1.   Constitutional Law Interpretation: Juricentric Constitution v. «Juriperipheral Consti-
tution» . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . .        330
3.2.   Constitutional judicial interpretation: between romantic narrative, fuzzy fiction, and
ascetic narrative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . .        331
4.   Guía de campo. Coda . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . .        332
IV EDUCACIÓN JURÍDICA
Derecho y Literatura. La cultura literaria del Derecho . . . . . . . . . . . . . . . . . . . . .  
   335
1.   Ab ocio literario y De dicendi elegantia. Los inicios . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . .        335
2.   De disputa ameníssima a Cultura literaria del Derecho: la aculturación lectora . . . . . . . .
. .        340
3.   ¿Qué literatura leen, cómo la leen y para qué los juristas (que leen)? . . . . . . . . . . . .
. . . . . .        342
4.   Epílogo sobre escépticos, y final abierto (a la discusión) . . . . . . . . . . . . . . . . . .
. . . . . . . . .        345
Derecho y Literatura, ad usuM scholaris juventutis. (Con relato implícito) . . . . . . . .      
349
1.   [Querría contaros una historia…] Preámbulo . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . .        349
2.  [Hace muchos años…] Formación jurídica y literatura: vínculos que fueron sólo colindan-
cias . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . .        350
3.   [Muchos años después…] Derecho y literatura: ¿habitaciones separadas? . . . . . . . . . . . .
.        363
4.   [Hoy, pero… ¿mañana será otro día?] Derecho y Literatura. Ad extra usum scholae accommo-
date? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . .        372
V
Y… DOS PRÓLOGOS
De la cultura lectora y literaria del Derecho . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . .      379
A propósito de l´Étranger de Camus, o una absurdidad llena de sentido (Pro logos
en Derecho y Literatura). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . .        385

Metaphor in Law

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

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

Download the paper from SSRN at the link. 

Remembering a Divided Nation

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

Funny Politicians

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

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

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

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

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

Indigenous Sovereignty: A Literature Review

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

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

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

Download the paper from SSRN at the link. 

Traditional Property Law and Indigenous Culture

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

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

Download the paper from SSRN at the link. 

British Trials In the Eighteenth and Nineteenth Centuries

A new publication of interest:

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

More here at the Ashgate website.

Mapping the March of Same-Sex Marriage and Relationships

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

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

Download the paper from SSRN at the link. 

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

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

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

Download the article from SSRN at the link. 

The Lincoln Legend

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

Narratives and Trials

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

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

Download the article from SSRN at the link. 

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

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

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

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

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

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

American Society For Legal History Meeting, 2013

Call for Papers and Participation: American Society For Legal History

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

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

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

“Law and Literature: experiences from my country”

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

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

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

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

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

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

Deadline for payment is 21 June 2013.

What Else You Can Do With a Law Degree

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

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

The Dred Scott Decision

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

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

Download the paper from SSRN at the link. 

Who Done It?

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

A New Collection on Legal Aesthetics

Forthcoming from Walter de Gruyter:

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

From the publisher's website:

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

Available in print and as an e-book.

 

Confucius and Chinese Legal Philosophy

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

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

Download the article from SSRN at the link. 

Robin West's "Normative Jurisprudence"

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

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

Download the article from SSRN at the link. 

New Issue of Law and Humanities Is Available

The new issue of Law and Humanities is available.

Law and Humanities

Volume 6. Number 2. 2012

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

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

CONTENTS

Editorial by Paul Raffield and Gary Watt

Free to view – please click on the link below:

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

Articles

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

Barbara J Shapiro

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

Matthew Mauger

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

Philip Kaisary

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

Jan-Melissa Schramm

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

Svein Atle Skålevåg

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Judges On Reality TV

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

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

Download the article from SSRN at the link.

Law, Religion, and the Peace of Westphalia

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

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

Download the essay from SSRN at the link. 

Law In Modernity: A New Book From Routledge

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

Published May 3, 2012 by Routledge-Cavendish.

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

A Conference on Eighteenth Century Portuguese Studies

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

Box Scores

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

Hollywood and the Death Penalty

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

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

Download the paper from SSRN at the link.

Studying Injustice

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

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

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

Selected Table of Contents

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

About the Author

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

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

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

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