The US engagement with 19th century international society saw the maturation of its approach toward international law. This paper focuses on two historical considerations that helped to shape that character--ending the international slave trade, and Indian removal. An emerging legal methodology of legal formalism helped to rationalize this engagement, and affected the young republic's engagement with the world. Understanding the rise of legal formalism, where it came from and what were its influences, uncovers a significantly American story of ambivalence, which has shaped US foreign policy vacillations between themes of universalism and unilateralism, and international community and international society.Download the article from SSRN at the link.
October 21, 2021
October 19, 2021
Call For Applications, 2022 Witteveen Memorial Fellowship in Law and Humanities, Tilburg University @TilburgU
Here is a link to the Call for Applications for the 2022 Witteveen Memorial Fellowship in Law and Humanities at Tilburg University (Netherlands).
The fellowship aims to enable a junior scholar (PhD or postdoc level) to develop her or his research in the field of law and humanities during a visit to Tilburg. The application deadline is October 31, 2021.
From Michiel Bot, Assistant Professor of Law and Humanities, Department of Public Law and Governance, Tilburg Law School, Program Director, Major Law in an International Context, University College Tilburg
October 16, 2021
Kumar on Trial as a Tool of Colonialism: The 1858 Trial of Mughal Emperor Bahadur Shah Zafar @IFIMLawSchool
This paper brings the 1857 trial of 82 years old Mughal Emperor Bahadur Shah Zafar into the mainstream international law. It discusses the aesthetical aspects of Zafar's trial, who was tried as a British Subject, despite being the Indian sovereign. The paper argues that the trial was used a tool to colonise India. It also points out the treatment given to Zafar post his arrest, when he was displayed to the Europeans 'like a beast in a cage'. It highlights the confusing nature of the trial which was, at times, presented as an enquiry. Moreover, it tells Zafar's story from his point of view. The paper also highlights the blind-spots in the subject of international law where Zafar's trial finds no mention. It provokes readers to question their understanding of colonialism by pointing out the well-known nature of trial of Warren Hastings, but the obscurity surrounding Zafar's trial.Download the article from SSRN at the link.
October 15, 2021
This bibliography collects work focused specifically on law and narrative, published between 2017 and 2021.
Download the article from SSRN at the link.
Professor Abrams authors a column, Writing it Right in the Journal of the Missouri Bar. In a variety of contexts, the column stresses the fundamentals of quality legal writing - conciseness, precision, simplicity, and clarity.Download the essay from SSRN at the link.
October 14, 2021
From the Baldy Center for Law and Social Policy:
Taxes on consumption items necessary for subsistence burdened the British middle and workings classes heavily throughout the early nineteenth century. The Weekly True Sun urged the Whig government to replace the window tax, not with a house tax, but with an income tax, and urged taxpayers to refuse to pay the window tax. Charles Dickens transcribed the seditious libel trial of the True Sun editors when he was very young and later remembered the Whig indecision on tax policy in a strongly negative editorial of his own. This article describes how Dickens played a prominent role in tax reform that followed. Note: This material was first published by Thomson Reuters, trading as Sweet & Maxwell, 5 Canada Square, Canary Wharf, London, E14 5AQ, in the British Tax Review as Boz Among the Radicals: Charles Dickens and Tax Reform,  B.T.R., No.2, and is reproduced by agreement with the publishers.Download the article from SSRN at the link.
October 12, 2021
In 1776, only two states offered constitutional protections against imprisoning people for debt. Today, forty-one states do. This Article traces that history. It begins by examining how debtors’ prisons operated in early America, and then divides analysis between three phases of state constitutional activity. In so doing, it looks at the arguments that won over states to protect debtors, the state constitutional conventions that enacted protections, and the failure of the federal government to address the issue. The Article concludes by noting that despite the success of adopting constitutional protections, courts have allowed debtors’ prisons to resurge in modern times.Download the article from SSRN at the link.
Yoo on What the Relationship Is Between Language and Thought: Linguistic Relativity and Its Limitations for Copyright @pennlaw
To date, copyright scholarship has almost completely overlooked the linguistics and cognitive psychology literature exploring the connection between language and thought. An exploration of the two major strains of this literature, known as universal grammar (associated with Noam Chomsky) and linguistic relativity (centered around the Sapir-Whorf hypothesis), offers insights into the copyrightability of constructed languages and of the type of software packages at issue in Google v. Oracle recently decided by the Supreme Court. It turns to modularity theory as the key idea unifying the analysis of both languages and software in ways that suggest that the information filtering associated with the Sapir-Whorf hypothesis may be a general strategy for managing complex systems that is not restricted to language. It also examines Jerry Fodor’s application of modularity theory to cognition and his Language of Thought Hypothesis to see what they reveal about the idea-expression dichotomy.Download the paper from SSRN at the link.
October 8, 2021
Although the role of emotion in law has become a major field of scholarship, there has been very little attention paid to the role of emotion in constitutional theory. This Article seeks to fill that gap by providing an integrated account of the role of emotion within the individual, how emotion affects constitutional culture, and how constitutional culture, properly understood, should affect our evaluation of major constitutional theories. The Article begins by reconstructing one of the most important and influential accounts of emotion in the philosophical literature: that of Thomas Aquinas. Because Aquinas’s description of the nature of emotion accords with modern science and the insights of many law-and-emotion theorists, it provides a firm foundation for an analysis of emotion in constitutional theory. Having laid that foundation, the Article examines the role of emotion in constitutional culture, the subset of national culture concerned with a constitution. Constitutional culture combines a society’s ideas about, and emotional attachments to, its constitution. Here, the Article develops a novel synthesis between Aquinas’s model of emotion and Edmund Burke’s sophisticated exploration of the importance of emotion in constitutional culture. Burke argues that theories of constitutional legitimacy shape constitutional culture and must accord with it. If a theory of legitimacy is at odds with a society’s constitutional culture, the society risks the instability of the regime. This insight—which is consistent with Aquinas’s model of emotion—is the primary basis for understanding the role of emotion in constitutional theory. Finally, the Article turns its attention to constitutional theory. Observing that popular sovereignty is the theory of legitimacy endorsed by our constitutional culture, the Article argues—based on the synthesis of the Thomistic and Burkean accounts—that emotion should play an important role in evaluating the contours and viability of theories of legitimacy. Theories of legitimacy that accord with popular sovereignty have a stronger argument in their favor because they reinforce the emotional attachments that lend stability to our constitution. Theories of legitimacy that reject popular sovereignty, by contrast, must be modified or abandoned or, alternatively, must explain why attempts to change our constitutional culture will avoid the instability that the Thomistic and Burkean accounts would predict. The Article therefore has particular relevance to assessing radical constitutional theories—whether from the political right or the political left—that are critical of American constitutional culture. The Article concludes by exploring the implications of emotion for constitutional doctrine, focusing on stare decisis and the examples of Roe v. Wade, 410 U.S. 113 (1973), and Miranda v. Arizona, 384 U.S. 436 (1966).Download the article from SSRN at the link.
The conventional interpretation of the Constitution assumes that the Committee of Style, which created the final draft of the Constitution, lacked authority to engage with substance; therefore, any arguably substantive changes it did make should be disregarded in favor of earlier draft language found in the Constitutional Convention records. This "Style doctrine" has been embraced by the Supreme Court and several leading constitutional scholars. This article argues that the Style doctrine is historically unfounded and obscures the Constitution's original meaning. The Committee of Style was not prohibited from proposing substantive changes. In any case, most of the revisions proposed by the Committee of Style clarified or reinforced Federalist positions rather than proposing substantive changes. Ultimately, the Style doctrine is an artifact of post-ratification developments tending to disregard elements of the more nationalistic constitutional vision of the Federalist Framers.Download the article from SSRN at the link.
October 7, 2021
Intangible Heritages: A Conference on Art, Design, Culture and Technology--Past, Present, and Future: Canterbury, UK (June 15-17, 2022)
Held in Canterbury, UK, by the University of Kent: (IN)TANGIBLE HERITAGE(S) looks at questions of digital art and computational design and how they are applied in contemporary and heritage settings.
A conference on art, design, culture and technology – past, present, and future
Place: Canterbury, UK / Virtual.
Organisers: University of Kent
Dates: 15-17 June 2022.
Abstracts: 30 November 2021 (Round One)
October 5, 2021
Bratspies on This Great Catastrophe: Bungling Pandemics From 1918 to Today @RBratspies @CUNYLaw @MSUILR
In examining how badly the United States bungled its COVID-19 pandemic response, it is worth going back to the commemorations of the 100th anniversary of the 1918 flu pandemic. Author after author cautioned that the next pandemic would overwhelm the United States health system and that the demand for hospital beds, treatments, and medical staff would quickly outstrip supply. These prescient predictions from just two years ago. Why, when the risks were so obvious and so clearly understood, were they ignored? In answering that question there is blame enough to go around. The American public increasingly refused vaccines for communicable diseases, resisted spending for health research, and elected anti-science candidates. Those elected officials in turn failed to take obvious steps to ward off an entirely foreseeable disaster. Some of these developments are new(ish), relating to the specifics of the current political climate. Yet what is most striking is how readily official responses fell into virtually the same patterns that stymied effective pandemic response in 1918, and how structural racism predicted which communities would be hardest hit and least served by government responses. Instead of learning from the mistakes of the 1918 pandemic we have largely repeated them. This paper traces some of the threads of complacency, hubris, isolationism, and distrust that got in the way both times, and draws some broader lessons we must learn about American political culture before the pandemic next time.Download the article from SSRN at the link.
October 3, 2021
Katz on The Fatal Flaw in The Fatal Three: Mary Elizabeth Braddon's Treatment of the Law Relating to Marriage Between a Widower and His Deceased Wife's Sister
After setting out the general legal background and summarising the story so far as it's relevant, the paper explains how an error on Mary Elizabeth Braddon's part relating to the legal effect of illegitimacy sent her novel The Fatal Three off the rails.
Download the article from SSRN at the link.
Is law an academic discipline like chemistry, history, or English that belongs on a university campus? Rodrigo and the professor discuss an innocent question by a conference attender who wanted to know why legal knowledge never seems to advance. Rodrigo and the professor are struck by how legal scholarship fails to pass law-review muster unless each statement comes accompanied by a footnote reference to a past writer who said exactly the same thing. They ponder the ways this mindset resembles Gabriel Garcia Marquez's novel, One Hundred Years of Solitude, and the movie Groundhog Day.Download the article from SSRN at the link.
September 29, 2021
Kenny on "Love Mounts to the Throne With Law": Citizenship in Northern Ireland and Seamus Heaney Antigone @dkennytcd @law_humanities
In this paper, I examine disputes about citizenship in Northern Ireland though the lens of poet Seamus Heaney’s 2004 version of Antigone, The Burial at Thebes. Citizenship and identity in Northern Ireland—if people are Irish or British—has been a central issue of the conflict there. The 1998 peace agreement promised to allow people to identify however they wished, and not be forced to adopt an identity they rejected. But recent controversies, including Brexit and a major legal challenge, have shown that the legal concept of citizenship has not been able to fulfil this promise. Sophocles’ Antigone presents a great clash between the authority of the State and deep personal/morality commitments, and the tragedy that result. Heaney’s Antigone casts light on the fundamental clash at the centre of citizenship, and points us toward a flexible, contextual multi-level citizenship as a solution to law’s rigid conception of what a citizen must be.Download the article from SSRN at the link.
September 28, 2021
Call For Applications: JHI Digital Humanities Postdoctoral Fellowship, 2022-2023
Deadline for applications: 30 November 2021
The Jackman Humanities Institute (JHI) at the University of Toronto, in partnership with the Digital Humanities Network, offers a twelve-month Postdoctoral Fellowship in Digital Humanities, with a project that fits the JHI’s annual theme, “Labour”.
The Annual Theme for 2022-2023 is LABOUR
From the labour of childbirth to the travail of making a living, human beings are labouring animals who derive meaning and experience meaninglessness in work. Historically, human creativity has long flourished both through and against labour-saving technologies. In a globalizing and climate-changing world, rising nationalist movements call for the fortification of borders that would stop seasonal flows of labour, while women call for pay equity and harassment-free workplaces to allow for the freedom to work in peace. In a world of increasingly precarious labour, thanks in part to automation, what does the future of work portend for both people and the planet? What forms of resistance are possible when workers face both the irrelevance of their labour and its exploitation?
The Digital Humanities Network
The Digital Humanities Network builds research and teaching strengths at the University of Toronto through programming, mentorship, and advocacy. We define digital humanities broadly, to include both critical praxis and the analysis of digitality. As of 2020 our primary focus is on critical digital humanities, a version of DH that places anti-racist, decolonial, feminist, and queer/trans/non-binary work at its core, and which understands our current historic shift in digital technology as an opportunity for social and political transformation. At the University of Toronto, Critical Digital Humanities foregrounds creative praxis, co-creation, public engagement, and community-based research.
The JHI DH Postdoctoral Fellow will have an established track record in their own discipline and/or the digital humanities. They will pursue their own research while at UofT, while working to foster the Digital Humanities Network.
The JHI DH Postdoctoral Fellow will draw upon their disciplinary expertise and upon training provided the JHI, DHN, and UofT Libraries to connect and strengthen DH projects across the tricampus university. Specifically, depending on their own skillset and research interests, the JHI DH Postdoctoral Fellow will spend 15 hours per week as a member of the DHN Executive Team, where they will:
- establish and maintain online spaces where members of the DH Network can share information about their research and discuss matters of common interest;
- run regular roundtables and workshops on digital humanities topics;
- convene a monthly community of practice to support the cohort of the Graduate Fellows in Critical Digital Humanities
- organize, facilitate, and participate in other tricampus DH training initiatives;
- facilitate introductions and connections between researchers within the DHN;
- in consultation with digital librarians, provide one-on-one and group consultancy to humanities researchers seeking to make use of infrastructure for digital scholarship in and beyond UofT; and
- participate in planning the future shape and directions of the DHN.
While working with the DHN, the Fellow will also be part of the JHI scholarly community and will participate in weekly JHI fellows lunches every Thursday from the beginning of September to the first week of May.
The JHI DH Postdoctoral Fellowship is a twelve-month position, from 1 July 2022 to 30 June 2023 supervised by Professor Elspeth Brown (Director of the DHN and Professor of Historical Studies) and Alison Keith (Director of the Jackman Humanities Institute and Professor of Classics and Women’s Studies). The JHI DH Postdoctoral Fellow may seek additional research supervision from within UofT according to their own interests. They will have access to equipment and collaborative digital working space at JHI. This fellowship award provides an annual stipend of $56,275 (CAD) plus benefits. The incumbent is welcome to seek up to two one-semester courses as a sessional instructor with the appropriate unit(s) at the University of Toronto. The JHI DH Postdoctoral Fellow will be expected to pursue their own research relevant to the JHI’s annual theme of Labour.
Eligibility and Attributes
Applicants must have completed their doctorate within five years of the beginning of the fellowship on 1 July 2022. Applicants who will defend their thesis before the end of May 2022 are eligible, but a letter from their supervisor or Chair may be requested. Any award will be conditional on a successful defense. Applicants who received their Ph.D. prior to 1 July 2016 are ineligible. Applicants who are graduates of doctoral programs at the University of Toronto are eligible. This position is not open to those who hold a tenure-track position.
The successful candidate will be able to demonstrate excellence in teaching and research and have an established track record in the digital humanities, with a focus on critical DH. They will understand the history, development, and current state of the field; be able to assess institutional processes and policies; be willing to work with a range of scholars in and outside of their own field; desire to learn and pursue research in an interdisciplinary, collaborative environment; and be committed to open source development and open access scholarship.
The JHI Postdoctoral Fellowship in Digital Humanities is open to citizens of all countries. The University of Toronto is strongly committed to diversity within its community and especially welcomes applications from racialized persons / persons of colour, women, Indigenous persons, persons with disabilities, LGBTQ+ persons, and others who may contribute to the further diversification of ideas. Engagement as a Postdoctoral Fellow at the University of Toronto is covered by the terms of the CUPE 3902 Unit 5 Collective Agreement.
The competition is located at https://redcap.utoronto.ca/surveys/?s=9TC7NHM4WR9PFXYC. You will be asked to upload the following documents in your application (please see our FAQ for further information about length and content):
- Letter of Application
- Curriculum vitae
- Project proposal
- Statement of Digital Humanities Research Interest, with specific reference to work in critical DH
- Research Sample
All documents must be compiled into a single file in .pdf format. For further information about formatting and length, please see the FAQ sheet below.
You will also be asked to provide the names and email addresses of two referees, whom we will contact to request letters of reference. Your referees will receive an automated request for their letters, which will be due on 7 December 2021. Please ask your referees to watch for our request email.
If you SAVE your file without clicking SUBMIT, you will be able to edit your application and replace your application document until you click SUBMIT or the deadline passes. Please submit your application before the deadline. If you SAVE, you will receive a secret number that will enable you to re-enter your application. Please record this number; JHI staff will not have access to this information.
All applications must be submitted by 30 November 2021 at 11:59 p.m. (EDT). Faxed, emailed, and paper applications will not be considered.
September 20, 2021
Uses a famous novel by Gabriel Garcia Marquez as a starting point for a sustained critique of Donald J. Trump's performance during the coronavirus crisis of 2020-21.Download the article from SSRN at the link.
September 14, 2021
Law and Creativity in a Pandemic: A Time of Remarkable Flourishing: A Free Public Event, November 24, 2021
Via the Law and Culture Mailing List
Law and creativity in a pandemic: a time of remarkable flourishing
A panel of artists and poets discuss how lockdown restrictions proved to be a unique source of creative inspiration and connection. Wed 24th November 2021, 6pm-7pm (online).
This free public event features short presentations from Cheryl Moskowitz (US born poet, educator and creative translator), Jenny Elliott (Chief Executive Officer and Artistic Director of Arts Care, 2011-2021), and Laila Sumpton (poet, educator and performer). It is organised and chaired by David Gurnham and Haris Psarras (School of Law, University of Southampton), as part of the ESRC Festival of Social Sciences.
Register through the Eventbrite link below to receive joining instructions:
Cheryl Moskowitz is a US born poet, educator and creative translator with a background in theatre and psychoanalysis. She is the author of several plays, two poetry collections and a novel. For 14 years she taught on the Creative Writing and Personal Development MA at Sussex University, was an external supervisor for arts therapies in forensics and regularly runs writing projects in the community.
September 10, 2021
September 7, 2021
Newly Published: Robert F. Barsky, Clamouring For Legal Protection: What the Great Books Teach Us About People Fleeing From Persecution (Bloomsbury, 2021)
Here from the publisher's website is a description of the book's contents.
In this novel approach to law and literature, Robert Barsky delves into the canon of so-called Great Books, and discovers that many beloved characters therein encounter obstacles similar to those faced by contemporary refugees and undocumented persons.
The struggles of Odysseus, Moses, Aeneas, Dante, Satan, Dracula and Alice in Wonderland, among many others, provide surprising insights into current discussions about those who have left untenable situations in their home countries in search of legal protection.
Law students, lawyers, social scientists, literary scholars and general readers who are interested in learning about international refugee law and immigration regulations in home and host countries will find herein a plethora of details about border crossings, including those undertaken to flee pandemics, civil unrest, racism, intolerance, war, forced marriage, or limited opportunities in their home countries.
Robert F Barsky is Canada Research Chair: Law, Narrative and Border Crossing (2019-20). He is Professor of Humanities and a Jointly Appointed Faculty Member in the Law School at Vanderbilt University.
The publisher is offering a discount for orders placed online. See below.
Discount Price: £60 / $80
Order online at www.bloomsbury.com – use the code UG8 for UK orders and HARTUS20 for US orders to get 20% off!
The use of pop culture references in judicial opinions—sometimes referred to as “dropping pop”—is unfortunately a growing trend. This Article presents the 2021 Briseño v. Henderson opinion as an illustration of the harms of unnecessary pop culture references. It provides a thorough analysis of the numerous ways in which pop culture references in judicial opinions are ill advised. It also addresses the arguments in favor of the practice, providing counterarguments to show why any purported benefits are exaggerated and far outweighed by the downsides. Then advice for judges, including best practices, is given. The Article concludes by providing suggested language for the Model Code of Judicial Conduct regarding pop culture references. Pop culture references are often misunderstood, which can lead to a misunderstanding of the case. Traditionally marginalized populations are particularly vulnerable to this, as they often do not share the same exposure to pop culture as predominantly white judges. They result in litigants believing that the judge was arbitrary, irreverent, and making fun of their plight. They blur the lines between fictional entertainment and the real-life legal system. They are perhaps indicative of a judge who is focusing on self-promotion at the cost of sound legal analysis. And they can be distracting, especially when the reader finds the reference offensive. Any net benefit gained by the entertainment value some experience from a pop culture reference is offset by the confusion and disagreement by others. And pop culture references are not necessary to create an engaging opinion. These references can serve as “seductive details” drawing attention away from the legal holding. They are likely not as persuasive as some advocates claim, and even if they were, persuasion is not a primary goal of a judicial opinion. The general public may find pop culture references in judicial opinions interesting, but this likely comes at the cost of diminished respect for the judicial system.Download the article from SSRN at the link.
September 2, 2021
Smith and Peterson on Big Data Comes For Textualism: The Use and Abuse of Corpus Linguistics in Second Amendment Litigation
Some scholars, judges, and advocates have recently urged that legal corpus linguistics, a methodology that uses computerized searches of large volumes of texts known as “corpora,” can determine the original meaning of constitutional provisions. More particularly, certain of these advocates have argued that corpus linguistics searches of Founding era corpora prove that the Second Amendment right to keep and bear arms protects only a collective, militia right and not an individual, private right to arms, contrary to the Supreme Court’s interpretation of that amendment in District of Columbia v. Heller, 554 U.S 570 (2008). In this article, we argue that relying on corpus linguistics to determine the meaning of the Second Amendment suffers from severe conceptual and practical difficulties. One of the most fundamental flaws concerns the central methodological assumption of corpus linguistics—the “frequency hypothesis”—which posits that the most frequent meaning of a word or phrase returned by a corpus search should be the meaning adopted for purposes of constitutional interpretation. Even if the phrase “bear arms” most frequently appears in a military context, that does not mean that the constitutional language excludes an individual right to bear arms for self-defense and other private purposes. Military and militia references were more likely to appear in public discussions of the right to bear arms simply because they were more “newsworthy” than the mundane acts of ordinary people carrying a firearm for hunting or defense, which would rarely be recorded. Contemporary examples, including references by the Founders themselves, show that the right to “bear arms” included protection of an individual right as well as furthering a well-regulated militia. In addition, corpus linguistics suffers from serious problems concerning the composition of the corpora, which are biased in favor of elite language usage and are critically incomplete, missing some of the key texts that historians and legal scholars have long relied upon in discerning the Second Amendment’s meaning. Use of legal corpus linguistics also raises serious practical difficulties in actual constitutional litigation, including the absence of the usual safeguards applicable to expert or “scientific” evidence. In the end, the counting of words resulting from a corpus search cannot overcome the history and traditions at the time of the Founding that allowed free carry and use of firearms, and the core conception by the Founders that self-protection with arms is a pre-existing right that cannot be taken away from the individual by any act of civil society.Download the article from SSRN at the link.
September 1, 2021
For One Day Only: Law, Space, Matter, September 9-10, 2021: A 24 Hour-Virtual Workshop For a Non-Traveling Global Audience
FOR ONE DAY ONLY
Law, Space, Matter
9-10 September 2021
A 24-hour virtual workshop for a non-travelling global audience.
- Institute for Interdisciplinary Legal Studies - lucernaiuris, University of Lucerne
- Centre for Law, Arts and the Humanities, The Australian National University
- Institute of the Humanities and Global Cultures, University of Virginia
- Wits Institute for Social and Economic Research, University of Witwatersrand
- Faculty of Law, University of Roma Tre
- Faculty of Law, University of Helsinki
- Institute for International Law and the Humanities, University of Melbourne
Recent years have witnessed a new wave of critical approaches to (re-)thinking the entanglements of law, space and matter. From David Delaney’s ‘nomosphere’ and Peter Sloterdijk’s ‘nomotop’ to Andreas Philippopoulos-Mihalopoulos’s ‘lawscapes’ and Daniela Gandorfer’s ‘matterphorics’ – scholars working in diverse theoretical traditions have rejuvenated discussions on the substance and materiality of law, and opened new perspectives on the reciprocal materialisation of the legal and the socio-spatial.
Matter matters – all the more in our present age of crises and challenges, which press us towards a renewed critical reckoning with the relation(s) between law, place and space, between spatiolegal representations, discourses, and materialities. In this context, we turn again to “the complex, shifting, and always interpretable blendings of words and worlds” (Delaney) in which law is embedded and unfolds.
For One Day Only brings together a global community of thinkers, scholars and artists for 24 hours of conversations on the moment we are living through and the future we want. Hosted by an international consortium of research centres spanning four continents, the workshop sessions will roll around the world from Canberra and Johannesburg, through Rome, Helsinki and Lucerne, to Virginia and Melbourne. Together, we will showcase cutting-edge work that captures the stakes of critical, theoretical and socio-legal enquiry into the spatialisation of law and the legalisation of space, and which poses fresh challenges for thinking about law’s depth and character, its politics and social resonances.
* All times listed below are in Central European Summer Time. Local times are given in brackets, where these differ. *
Thursday 9 September, 04.00-06.00 (12.00-14.00 Eastern Australian Time)
Thursday 9 September, 07.30-08.30 (08.30-09.30 East European Summer Time)
Call For Papers, Special Issue: Towards Digitization of Cultural Practices and Contents: Issues, Limits, and Legal tools (Guest Editors, Marie-Sophie de Clippele and Anne Wagner) (International Journal for the Semiotics of Law) @AnneWag26082949
Towards digitization of cultural practices and contents
Issues, limits and legal tools
International Journal for the Semiotics of Law https://www.springer.com/journal/11196
Guest Editors: Marie-Sophie de Clippele & Anne Wagner
It is often claimed that developing a digital strategy to improve access to and participation in culture and cultural heritage increases democratization and citizens’ sense of collective belonging. As a result, and particularly in the COVID-19 context, many cultural institutions, both public and private, have accelerated the development of tools for accessing and digitally disseminating their cultural content: online access to collections, visits to museums or 3D virtual sites, visits to entirely online exhibitions, online access to cultural and musical performances, reading of tales via video... Furthermore, participatory digital cultural practices have also increased exponentially to integrate users in the creation, use and transmission of culture and cultural heritage (methods of crowd sourcing, storytelling, citizen science...), notably through digital tools linked to artificial intelligence and virtual reality.
However, this digital craze, already underway before the pandemic, is not without legal difficulties, particularly in the field of intellectual property and data protection, and also raises ethical questions. With the dematerialization of cultural practices and content some legal principles can constitute obstacles, while others can facilitate digitization and access to such content and practices. Both mechanisms in public law – legislation and case law ensuring a balance between rights and interests, such as those of the author, the owner, the user, the personal data subject or controller; participatory governance measures; development of direct and indirect cultural policies… – , as well as tools in private law – licence contracts; property rights; control and access mechanisms such as Digital Rights Management (DRM); legal governance models and structures, etc. – must be examined for an inclusive access to dematerialized cultural practices and content. Nevertheless, the notion of access itself should be examined, including from an ethical point of view: the desire to grant universal access to certain dematerialized cultural content may come up against certain rights and interests, particularly those of the communities of origin, a fortiori when it comes to digitizing sacred objects. Following a decolonial approach to the concepts of access and dematerialization, thought should be given to the inclusion of these communities in the digitization process as well as in the access policies of these digital contents.
The aim of this Special Issue is therefore to question the dematerialization movement from a legal point of view, by asking within what limits, under what conditions and with what legal tools cultural practices and contents can develop in the context of digitization of cultural practices and contents.
Three axes are to be explored in this Special Issue, in which more concrete thematic ideas are listed, while being open to other aspects within these three axes:
1. Digitization and intellectual property
What are the issues, limits and tools in intellectual property law in the face of digitized cultural practices and content?
- The evolving enforcement of intellectual property rights with the expansion of digitized cultural practices and content;
- The impact of Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the digital single market and amending Directives 96/9/EC and 2001/29/EC on intellectual property regimes, in particular with regard to the reproduction right of works of visual art, as well as with regard to other exceptions to the rights of reproduction or communication to the public;
- New licensing practices for the use of new digital tools (co-created digital files, 3D scanning, virtual reality games...);
- The scope of the exceptions to copyright and related rights for user-generated content with cultural creations (quotation, parody, etc.) and the adequacy of remuneration rights
- The issue of restitution of cultural goods and their digitization: the intellectual (and material) rights on these goods.
What are the issues, limits and tools in platform law and data protection law in the face of digitized cultural practices and content?
- The role of cultural platforms in guaranteeing access while respecting the principle of cultural diversity (regulation of private cultural platforms, development and accessibility of cultural platforms managed directly by the public authorities, particularly for education and research, etc.);
- The role of new intermediaries in cultural mediation (for ex. risks of new gatekeepers such as streaming platforms for accessing cultural content);
- Data protection of digital cultural content, especially in the case of user-generated content.
3. 3. Digitization, participatory governance and virtual communities
What are the issues, limits and tools of participatory governance in the face of digitized cultural practices and content?
- The right(s), interest(s) and/or responsibility(s) for users of these cultural practices;
- Virtual communities vs. communities of origin;
- The principles of participatory governance for these dematerialized cultural practices and contents;
- The challenge of the (digital) commons (need for new open licenses, etc.);
- The role of public authorities in ensuring active participation in culture.
Please send your abstract of 500 words (max.) to Marie-Sophie DE CLIPPELE (marie- firstname.lastname@example.org) by 25 February 2022 with decisions made by 25 March 2022. Papers should be no longer than 15,000 words. The deadline for submitting full papers is 25 August 2022.
Vers une numérisation des pratiques et des contenus culturels Enjeux, limites et outils juridiques
Revue internationale de Sémiotique juridique https://www.springer.com/journal/11196
Directeurs invités : Marie-Sophie de Clippele & Anne Wagner
L’importance de développer une stratégie numérique pour améliorer l’accès et la participation à la culture et au patrimoine culturel est souvent mise en avant pour augmenter la démocratisation et le sentiment d’appartenance collective des citoyens. Dès lors et dans le contexte particulier du COVID-19, nombre d’institutions culturelles, publiques et privées, ont accéléré le développement d’outils d’accès et de diffusion numérique à leurs contenus culturels : accès en ligne aux collections, visite de musées ou de sites virtuels en 3D, visite d’expositions entièrement en ligne, accès en ligne aux représentations culturelles et musicales, lecture de contes par vidéo... Par ailleurs, les pratiques culturelles numériques participatives ont également accru de manière exponentielle pour intégrer les usagers dans la création, l’usage et la transmission de la culture et du patrimoine culturel (méthodes de crowd sourcing, storytelling, citizen science…), notamment par des outils numériques liés à l’intelligence artificielle et à la réalité virtuelle.
Toutefois, cet engouement numérique, déjà entamé avant la pandémie, ne va pas sans poser de difficultés sur le plan juridique, notamment dans le domaine de la propriété intellectuelle et de la protection des données, tout en suscitant quelques interrogations éthiques. La dématérialisation des pratiques et des contenus culturels interroge en effet nombre de principes juridiques, qui peuvent tantôt constituer des obstacles, tantôt faciliter la numérisation et l’accès à ces contenus et pratiques. Ainsi, tant des mécanismes en droit public – législation et jurisprudence veillant à équilibrer les droits et les intérêts, comme ceux de l’auteur, du propriétaire, de l’usager ou du sujet ou contrôleur des données privées ; mesures de gouvernance participative ; développement des politiques culturelles directes et indirectes … , que des outils en droit privé – contrats de licence ; droits de propriété ; dispositifs de contrôle et d’accès, comme la gestion numérique des droits ; modèles et structures juridiques de gouvernance… - participent à l’enjeu de l’accès aux pratiques et contenus culturels dématérialisés. Néanmoins, la notion d’accès elle-même invite à réfléchir à ses contours, en ce compris sur le plan éthique : la volonté d’ouvrir l’accès de manière universelle à certains contenus culturels dématérialisés peut se heurter à certains droits et intérêts, notamment ceux des communautés d’origine, a fortiori lorsqu’il s’agit d’objets sacrés numérisés. Suivant une approche décoloniale quant aux concepts d’accès et de dématérialisation, cela implique une réflexion quant à l’inclusion de ces communautés dans le processus de numérisation ainsi que dans les politiques d’accès de ces contenus numériques.
Le présent appel à propositions a ainsi pour objet d’interroger le mouvement de dématérialisation sur le plan du droit, en se demandant dans quelles limites, à quelles
Trois axes sont explorés dans le cadre de ce Numéro Spécial, dans lesquels sont listées des idées de thématiques plus concrètes, tout en étant ouvert à d’autres aspects au sein de ces trois axes :
1. Numérisation et propriété intellectuelle
Quels enjeux, limites et outils en droit de la propriété intellectuelle face à des pratiques et contenus culturels numérisés ?
- L’évolution de l’application des droits de la propriété intellectuelle avec l’expansion des pratiques et contenus culturels dématérialisés ;
- L’impact de la Directive (UE) 2019/790 du Parlement européen et du Conseil du 17 avril 2019 sur le droit d'auteur et les droits voisins dans le marché unique numérique et modifiant les directives 96/9/CE et 2001/29/CE sur les régimes de propriété intellectuelle, notamment quant au droit à l’image des œuvres d’art visuel, ainsi qu’eu égard à d’autres exceptions aux droits de reproduction ou de communication au public ;
- Les nouvelles pratiques de licences pour utiliser de nouveaux outils numériques (fichiers numériques co-créés, scan 3D, jeux dans la réalité virtuelle…) ;
- La portée des exceptions au droit d'auteur et aux droits voisins pour les contenus générés par les utilisateurs avec des créations culturelles (citation, parodie, etc.) et l'adéquation des droits de rémunération ;
- L’enjeu de la restitution de biens culturels et de leur numérisation : les droits intellectuels et matériels distincts sur ces biens.
Quels enjeux, limites et outils en droit des plateformes et en droit de la protection des données face à des pratiques et contenus culturels numérisés ?
- Le rôle des plateformes culturelles pour garantir un accès en respectant le principe de diversité culturelle (régulation de plateformes culturelles privées, conditions de développement et d’accessibilité des plateformes culturelles gérées directement par les pouvoirs publics, notamment pour l’enseignement et la recherche…) ;
- Le rôle des nouveaux intermédiaires dans la médiation culturelle (par exemple, les risques liés à l'apparition de nouveaux gardiens, tels que les plateformes de diffusion en continu, pour l'accès aux contenus culturels). ;
- La protection des données des contenus culturels numériques, notamment en cas de
Quels enjeux, limites et outils de gouvernance participative face à des pratiques et contenus culturels numérisés ?
- Le(s) droit(s), intérêt(s) et/ou responsabilité(s) pour les usagers de ces pratiques culturelles ;
- Communautés virtuelles vs. communautés d’origine ;
- Les principes de gouvernance participative pour ces pratiques et contenus culturels dématérialisés ;
- L’enjeu des communs (numériques) (besoin de nouvelles licences etc.) ;
- Le rôle des pouvoirs publics pour garantir la participation active dans la culture.
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Marie-Sophie DE CLIPPELE (marie- email@example.com)
avant le 25 février 2022, les
décisions étant prises pour le 25 mars 2022 au plus tard. Les articles ne doivent pas dépasser 15 000 mots.
La date limite
de soumission des articles
de fonds est fixée au 25 août
Veuillez envoyer votre résumé de 500 mots (max.) à Marie-Sophie DE CLIPPELE (marie- firstname.lastname@example.org) avant le 25 février 2022, les décisions étant prises pour le 25 mars 2022 au plus tard. Les articles ne doivent pas dépasser 15 000 mots. La date limite de soumission des articles de fonds est fixée au 25 août 2022 au