Donelson on Describing Law @LSULawCenter

Raff Donelson, Louisiana State University (Baton Rouge), is publishing Describing Law in volume 33 of the Canadian Journal of Law and Jurisprudence (2020). Here is the abstract.

Legal philosophers make a number of bold, contentious claims about the nature of law. For instance, some claim that law necessarily involves coercion, while others disagree. Some claim that all law enjoys presumptive moral validity, while others disagree. We can see these claims in at least three ways: (1) We can see them as descriptions of law’s nature (descriptivism), (2) we can see them as expressing non-descriptive attitudes of the legal philosophers in question (expressivism), or (3) we can see them as claims that must be assessed on the basis of practical reasons (pragmatism). Ultimately, this paper argues that we should understand these claims in the pragmatist way; as such, jurisprudential claims are about what to do, e.g., what to treat as law and how to order society.

Download the article from SSRN at the link.

Stern on A Mistake of Natural Law: Sir William Blackstone and the Anglican Law @RegentLaw

Craig A. Stern, Regent University School of Law, is publishing A Mistake of Natural Law: Sir William Blackstone and the Anglican Way in volume 4 of the University of Bologna Law Review (2019). Here is the abstract.

Despite charges to the contrary, Blackstone’s use of natural law in his Commentaries is coherent and actually shapes the whole, but it takes eyes alerted to Blackstone’s grounding in Roman Law and in the Anglican Church to see this truth. Once seen, it speaks directly to the study and practice of law in America today.

Download the article from SSRN at the link.

Menkel-Meadow on Negotiating the American Constitution (1787-1789) @CMenkelMeadow @GeorgetownLaw

Carrie Menkel-Meadow, University of California, Irvine School of Law; Georgetown University Law Center; is published Negotiating the American Constitution (1787-1789) Coalitions, Process Rules, and Compromises in Landmark Negotiations from Around the World: Lessons for Modern Diplomacy (Emmanuel Vivet, editor, Intersentia 2019.) Here is the abstract.

This essay describes the multi-party, multi-issue negotiations of the American Constitutional Convention in Philadelphia (1787), using the lens of negotiation theory. Expert process leadership by George Washington, James Madison and Benjamin Franklin, with deliberation about process rules (e.g. speaking rules, confidentiality) and decision rules (voting and reconsideration, packaging) as well as the use of committees and task groups to facilitate both cross-geopolitical and issue coalitions and specialization, rather than Committee of the Whole (plenary) meetings for all of the deliberations, allowed the negotiation, drafting and (later!) ratification of a monumental political document, with dubious political (and moral) legitimacy at the time of its completion, but considerable robustness, with a large number of amendments (including the “afterthoughts” of the Bill of Rights) over time. While there has been much replication of the text of the US Constitution (in later enacted Constitutions by other countries), not enough consideration has been given to the importance of process choices in comparative political theory (cf. Jon Elster’s work). This essay attempts to illustrate the use of “applied history” in understanding complex diplomatic and political negotiations, by using current theories to explore past behavior.

Download the essay from SSRN at the link.

Kjaer on Translation of Judgments of the ECtHR into Non-Official Languages @KjrAnne @OxUniPress

Anne Lise Kjaer, Translation of Judgments of the European Court of Human Rights into Non-official Languages: The Politics and Practice of European Multilingualism, in Language and Legal Interpretation in International Law (Anne Lise Kjaer and Joanna Lam, eds.,Oxford University Press, Forthcoming)(Oxford Studies in Language and Law).

The paper examines the role that translation of judgments of the European Court of Human Rights (ECHR) has played in the dialogue between the Member States of the Council of Europe and the Court over time. The judgments of the ECHR are produced in the two official languages, English and French, only. Translation into other languages was never an issue in the discussions leading to the adoption of the European Convention on Human Rights, and not until the beginning of the reform process at the turn of the century was translation of ECHR judgments into non-official languages put on the agenda. It was introduced into the reform discourse under the heading of Member States’ implementation of the convention and their knowledge and understanding of the Court’s case law. The paper traces the development of translation arguments in the reform discourse and discusses the possible reasons why translation into languages other than English and French was not an issue until the Court faced challenges from the Member States in the early 2000s. It is argued that the choice of language policy and considerations regarding translation into the national languages of the Member States indicate the institutional balance that exists at any given time in the interface between the national and European level of lHuman Riights law.

Download the essay from SSRN at the link.

Ramshaw on Law and Humanities: A Field Without a Canon @UVicLaw

Sara Ramshaw, University of Victoria Faculty of Law, has published Law and Humanities: A Field Without a Canon. Here is the abstract.

This short Commentary imagines law and humanities not as a “canon” per se, but as a “field without a canon”; or a canon that resists canonization. Arts-based practices utilized in legal research and teaching expose the law and humanities “canon” to its dual (and somewhat contradictory) nature: ever straining towards a pre-established archive, it must also leap ahead fearlessly to properly defy disciplinary boundaries and move the field beyond siloed thinking, which is one of the preliminary aims of law and humanities scholarship and pedagogy. Arts-based practices consist not of a stable collection of set texts, but instead signify a process of experimentation that is ever in flux and alive to possibility. It is this process of discovering new arts-based practices that ensures law and humanities remains a vibrant, yet ever-changing, field for years to come. To that end, this Commentary surveys a sampling of outsider approaches to law and humanities scholarship and pedagogy, those more concerned with process than product, and which are coming from outside of or beyond the more traditionally conceived canon of law and humanities. These approaches fall into two broad categories: (1) arts-based scholarly legal practices; and (2) arts-based legal pedagogical practices. A uniting feature of both these approaches is that they are being undertaken and explored by Canadian legal scholars at a small law school on Vancouver Island on the West Coast of Canada, namely the University of Victoria Faculty of Law, where there is an impressive number of faculty members using arts-based practices in their research and teaching.

Download the article from SSRN at the link.

AISB20: Communication and Conversation, April 6-9, 2020, St. Mary's University @AISB_soc

From Dr Yasemin J. Erden, AISB Vice Chair, Senior Lecturer, Philosophy, St Mary's University

AISB20: Communication and Conversation, 6 – 9 April 2020, St Mary’s University, Twickenham, London, UK

The society for the study of Artificial Intelligence and the Simulation of Behaviour (the AISB) annual convention will be held at St Mary’s University, Twickenham in London, UK from 6 - 9 April 2020. 

This year the theme broadly covers topics in language, communication and conversation, though there will be a range of symposia covering a range of topics in philosophy, AI, computing, etc.

The convention will follow the same overall structure as previous conventions, namely a set of co-located parallel symposia, as well as invited and plenary lectures and sessions.

Based in leafy Richmond borough, St Mary's University has a long and distinguished history. Strawberry Hill House, located in the University grounds, is Britain's finest example of Georgian Gothic Revival architecture (known locally as the Gothic Castle). The institute benefits from lots of green spaces, whilst being only a short distance from The Thames, Richmond Park, and central London (we’re just 35 minutes on the train from Waterloo). You can view a virtual tour of the campus here: https://www.stmarys.ac.uk/contact/virtual-tour.aspxhttps://www.stmarys.ac.uk/contact/virtual-tour.aspx

Here is a full list of symposia for the conference.

• AISB AI & Games 2020 (AI&G)
• 2nd Symposium on AI and Robotics Normative Spheres: Towards a Sustainable Society and Technology (AIRoNoS)
• AI and Moral Learning (AIML)
• 7th Computational creativity symposium (CC20)
• First AISB Symposium on Conversational AI (SoCAI)
• Do Robots Talk? Philosophical Implications of Describing Human-Machine Communication (DoRoTa)
• Habits and rituals in real and virtual societies (H&R)
• The Impact of Anthropomorphism on Human Understanding of Intelligent Systems (Anthro2020)
• Philosophy after AI: meaning and understanding (PhAI2020)
• Overcoming Opacity in Machine Learning (Opacity)
• Representation and Reality In Humans, Other Living Organisms and Machines (R&R)
• Responsibility and control: communication and conversation through technology (RACCT)
• Social Interactions in Complex Intelligent Systems (SICIS) 

More information is available here.

Recently Published: Marett Leiboff, Towards a Theatrical Jurisprudence (Routledge, 2019) @legalintersect @routledgebooks

ICYMI:

Marett Leiboff, Towards a Theatrical Jurisprudence (Routledge, 2019).

This book brings the insights of theatre theory to law, legal interpretation and the jurisprudential to reshape law as a practice of response and responsibility. Confronting a Baconian antitheatrical legality embedded in its jurisprudences and interpretative practices, Marett Leiboff turns to theatre theory and practice to ground a theatrical jurisprudence, taking its cues from Han-Thies Lehmann’s conception of the post-dramatic theatre and the early work of theatre visionary Jerzy Grotowski. She asks law to move beyond an imagined ideal grounded in Aristotelian drama and tragedy, and turns to the formation of the legal interpreter ・ lawyer, judge, jurisprudent ・ as fundamental to understanding what’s “noticed” or not noticed in law. We “notice” most easily through that which is written into the body of the legal interpreter, in a way that can’t be replicated through law’s standard practices of thinking and reasoning. Without more, thinking and reasoning are the epitome of antitheatricality legality; a set of theatrical antonyms, including transgression and instinct, offer instead a set of possibilities through which to reconceive assumptions and foundational concepts etched into the legal imaginary. And by turning to critical dramaturgy, the book reveals that the liveliness that sits behind theatrical jurisprudence isn’t a new concept in law at all, but has a long pedigree and lineage that had been lost and hidden. Theatrical jurisprudence, which demands an awareness of self and beyond self, grounds a responsiveness that can’t be found within doctrine, principle, or the technocratic, but also challenges us to notice what it is we think we know as well as what we know of lives in law that aren’t our own. The book will be of interest to scholars and students in the field of jurisprudence, legal theory, theatre and performance studies, cultural studies and philosophy.

 

Rubin on Early US Prison History Beyond Rothman: Revisiting @ashleyrubin

Ashley T. Rubin, Unviersity of Toronto, Mississauga, has published Early US Prison History Beyond Rothman: Revisiting at 15 Annual Review of Law and Social Science 137-154 (2019). Here is the abstract.

David J. Rothman's , one of the first major works to critically interrogate the beginning of America's extensive reliance on institutionalization, effectively launched the contemporary field of prison history. Rothman traced the first modern prisons’ (1820s–1850s) roots to the post-Revolution social turmoil and reformers’ desire for perfectly ordered spaces. In the nearly 50 years since his pioneering work, several generations of historians, inspired by Rothman, have amassed a wealth of information about the early prisons, much of it correcting inaccuracies and blind spots in his account. This review examines the knowledge about the rise of the prison, focusing on this post-Rothman work. In particular, this review discusses this newer work organized into three categories: the claim that prisons were an invention of Jacksonian America, reformers’ other motivations for creating and supporting prisons, and the frequently gendered and racialized experiences of prisoners. The review closes by reflecting on the importance of prison history in the contemporary context and suggesting areas for future research.

The full text is not available from SSRN.

Abbasi on the Politics of Exclusion through Language in the Presidential Speeches of Donald Trump

Ameer Ali Abbasi, National University of Modern Languages, Islamabad, has published Politics of Exclusion through Language in the Presidential Speeches of Donald Trump. Here is the abstract.

The current research is an attempt to define and discuss the mechanisms of power as used by Trump in his presidential speeches that he has made during the year, 2017, in accordance with Foucault’s Theory of Power/Knowledge. However, a number of research articles have been published on the speeches of Trump, but no one has analysed the mechanisms of power in his speeches as discussed by Foucault. So the present research fills up the gap by analysing Trump’s speeches using Foucault’s Power and Knowledge Theory. The researcher aims to answer the problem of mechanisms of power such as politics of exclusion in the concerned speeches, the way Trump employs to create discourse and knowledge. In order to discuss and analyse the speeches, the study embraces the qualitative method that enables to answer the question related to power mechanisms. The discussion and analysis consists of the mechanisms such as American nationalism, Islam and politics of exclusion, and paranoia. Besides, he also makes use of purposive, explanatory and descriptive designs of research to collect and analyse data using the above given theory. Thus, the study explores Trump's mechanisms of exclusionary politics as used in his presidential speeches.

Download the article from SSRN at the link.

ICYMI: Seabourne on Qualifying For Tenancy By the Curtesy of England in the Reign of Edward I @gcseabourne

ICYMI:

Gwen Seabourne, "It Is Necessary That the Issue Be Heard To Cry Or Squall Within The Four [Walls]": Qualifying For Tenancy By the Curtesy of England in the Reign of Edward I, 40 Journal of Legal History 44-68 (2019).

This article considers the test used to determine the presence or absence of life in newborn babies, in relation to a widower’s entitlement to remain in land brought to the marriage by his wife, as tenant by the curtesy of England. To qualify for curtesy, a widower needed to have produced a live and legitimate child, but, since even a short period of life was sufficient, there might be disputes as to whether a child which was now dead had ever been alive. The common law therefore had to develop a way of settling this difficult matter of confirming or denying the presence of life. Several thirteenth-century sources show an emphasis on a sound as an indicator of life. This article considers the use of a sound criterion in this area, arguing that thinking and practice surrounding the appropriate test were more complex, less settled, and more interesting than has been represented in somewhat perfunctory accounts in the work of later lawyers and legal historians. This is significant for the understanding of this area of medieval law, but also has broader implications within legal history and historiography, and for scholars from other fields such as medieval social and medical history.

McMurtry-Chubb on Still Writing at the Master's Table @genremixtress

Teri A. McMurtry-Chubb, John Marshall Law School; Mercer University School of Law, has published Still Writing at the Master's Table: Decolonizing Rhetoric in Legal Writing For a 'Woke' Legal Academy at 21 Scholar 255 (2019). Here is the abstract.

When I wrote Writing At the Master’s Table: Reflections on Theft, Criminality, and Otherness in the Legal Writing Profession almost 10 years ago, my aim was to bring a Critical Race Theory/Feminism (CRTF) analysis to scholarship about the marginalization of White women law professors of legal writing. I focused on the convergence of race, gender, and status to highlight the distinct inequities women of color face in entering their ranks. My concern was that barriers to entry for women of color made it less likely that the existing legal writing professorate, predominantly White and female, would problematize the ways students are taught legal reasoning, analysis and writing. I argued: “If the traditional [dominant] legal analytical process is normalized and passed off as objective, both in the content of the legal writing curriculum and in the body of the person teaching the curriculum, most students unwittingly will continue to replicate racist and elitist legal structures as they learn the very process of legal reasoning and analysis in law school and as they undertake the practice of law.” I pick up that major theme in this article by focusing on how law professors of legal writing are forced to serve as handmaidens of hierarchy in the maintenance of the legal academy as an elite and closed discourse community. It considers how in teaching students how to “do” law - employ legal reasoning and analysis through written communication - legal writing curricula provide for no critique of the colonized formal rhetorical structures in which critical thinking, reading, analysis and writing skills are grounded. Part I problematizes the relationship of the five canons of rhetoric, specifically Invention and Dispositio, to Western/European epistemologies. Part II introduces Indigenous, African and Asian Diasporic Rhetorics, and Latinx Rhetorics as critiques of the canons of rhetoric and the Western concept of canonicity; examines them as new sites for Inventio and Dispositio; and considers the implications for teaching legal reasoning, analysis, and communication. Part III explores how de-centering Western epistemologies as the sole acceptable source of rhetoric opens possibilities for decolonizing the legal academy, and for preparing law students to become change agents in the practice of law.

Download the article from SSRN at the link.

Jukier on From La Beauce to Le Bayou @LawMcGill @JournalCivilLaw

Rosalie Jukier, McGill Faculty of Law, has published From La Beauce to Le Bayou: A Transsystemic Voyage at 12 Journal of Civil Law Studies 1 (2019). Here is the abstract.

This paper is an adaptation of the Tucker Lecture that I delivered in October of 2017. Its title depicts two iconic places, one in the Canadian province of Quebec, from where I hail, and the other in Louisiana, the locale of my audience. In this paper, I attempt to guide an allegorical voyage from la Beauce to le Bayou, from Quebec to Louisiana, from Montreal to Baton Rouge, from McGill to LSU, using a transsystemic itinerary. This voyage will showcase the unique way of teaching and thinking about law that has defined the program of legal education, and the imaginations of legal scholars, at McGill’s Faculty of Law for almost two decades. In addition to demystifying the elusive term “transsystemic,” and outlining the pedagogical and intellectual benefits of teaching and thinking about law in this way, this paper will focus on the increasing relevance of the transsystemic approach as a way of preparing jurists, wherever they may be, for the complexity and novelty of contemporary legal practice. By instilling creative, critical and flexible thinking skills, it enables jurists to deal with novel legal problems, to be more adept at envisaging a multiplicity of creative ways to solve legal problems through alternative methods of dispute resolution, and to keep pace with novel comparative judicial methodology. Just as la Beauce and le Bayou are different places with different geographical features, so too are Quebec and Louisiana different legal jurisdictions. However, they are, in many ways, sister jurisdictions, sharing a common mixity in their legal systems. This makes law schools in Louisiana a particularly fertile environment in which to showcase this unique itinerary in the hope that some of you will come along on this interesting voyage.

Download the article from SSRN at the link.

Call For Applications, Law and Society Association Workshop, Denver, CO, May 26-27, 2020 @law_soc

The Law and Society Association announces the call for applications for the Graduate Student & Early Career Workshop, May 26-27, 2020, in Denver, Colorado (USA). The workshop immediately precedes the LSA Annual Meeting.

Apply here.

Waldron on Non-Normative Principles @JeremyJWaldron

Jeremy Waldron, New York University School of Law, has published Non-Normative Principles. Here is the abstract.

How should we think about legal principles? In analytic jurisprudence, the best-known account of legal principles — Ronald Dworkin’s account — assigns them a normative function in law, albeit not a hard or determinate one. But legal principles sometimes serve a characterizing rather than a normative function: they tell us about the character of a legal system rather than giving us instructions about how to deal with difficult cases. There is a further question whether characterizing principles can nevertheless perform some sort of normative function in legal argument. In the second half of this paper, I consider the operation of constitutional principles, like the rule of law and the separation of powers.

Download the article from SSRN at the link.

Kemmerer and Wolhleben on Mythos und Recht: Poetick und Politik in Christa Wolfs Kassandra-Projekt @kemmereralex @Uni-MR

Alexandra Kemmerer, Max Planck Society for the Advancement of the Sciences; Max Planck Institute for Comparative Public Law and International law, and Doren Wohlleben, University of Marberg, have published Im Kalten Krieg der Geschlechter. Mythos und Recht, Poetik und Politik in Christa Wolfs Kassandra-Projekt (Cold War, Gendered: Myth and Law, Poetics and Politics in Christa Wolf's Kassandra Project) as the Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2019-21. Here is the abstract.

German Abstract: Im Wintersemester 2018/19 lud die Neuphilologische Fakultät der Universität Heidelberg in der Vortragsreihe „ModerneKrisenLiteratur“ dazu ein, im Dialog zwischen jeweils einem Literaturwissenschaftler und einem Vertreter einer anderen kultur-, sozial- oder geschichtswissenschaftlichen Disziplin darüber nachzudenken, wie sich die Umbrüche und Erschütterungen der ökonomischen, politischen und kulturellen Moderne in literarischen Werken des 20. Jahrhunderts niedergeschlagen haben. Am 15. Januar 2019 sprachen in der Neuen Universität Heidelberg die Rechtswissenschaftlerin Alexandra Kemmerer (Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht) und die Literaturwissenschaftlerin Doren Wohlleben (Universität Marburg) über Christa Wolfs Kassandra-Projekt – ein in vier Vorlesungen und eine Erzählung gegliedertes Werk, das als mediales Großereignis bereits beim ersten öffentlichen Vortrag im Rahmen der Frankfurter Poetik-Vorlesungen im Mai 1982 große internationale Beachtung fand und inzwischen, übersetzt in dutzende Sprachen, zur Weltliteratur des 20. Jahrhunderts zu zählen ist. In der Begegnung von Rechts- und Literaturwissenschaft, von „Law & Literature“, erweist sich Christa Wolfs Kassandra-Projekt als Schlüssel zu einem differenzierten Verständnis des geteilten Deutschland in der Endphase des Kalten Krieges, des Wendejahres 1989 und der nachfolgenden politischen, sozialen, rechtlichen und kulturellen Transformationen. Herausgefordert und sensibilisiert von der je anderen Disziplin, gewinnen im Blick auf Mythos und Recht, Poetik und Politik Krisenmomente Kontur, deren Brüche und Verwerfungen noch unsere Gegenwart prägen. English Abstract: In the winter semester of 2018/19, the Neuphilologische Fakultät (Faculty of Modern Languages) at the University of Heidelberg hosted a lecture series inviting reflections on ruptures and upheavals in economic, political and cultural modernity, and their repercussions on 20th-century literature. Organised as dialogue between a literary scholar and a scholar of another field of the humanities, social sciences or cultural studies, the series „ModerneKrisenLiteratur“ invited in each of its weekly sessions contextual and reflexive explorations of literary works. On January 15, 2019, at Neue Universität Heidelberg, legal scholar Alexandra Kemmerer (Max Planck Institute for Comparative Public Law and International Law) and literary scholar Doren Wohlleben (University of Marburg), discussed Christa Wolf's Kassandra Project - a complex and highly original literary work which attracted great international attention already at its first public presentation in May 1982, in the Frankfurt Lectures on Poetics series, and has since become part of 20th century world literature. In Kemmerer’s and Wohlleben’s Heidelberg encounter, from a Law& Literature perspective, Christa Wolf's Kassandra Project is explored as key to a differentiated understanding of Divided Germany in the final phase of the Cold War, of the Fall of the Berlin Wall, the “Wende“, of 1989, and of subsequent political, social, legal and cultural transformations. Based on close readings of Wolf’s literary work, their transdisciplinary reflections on myth and law, poetics and politics highlight moments of crisis, ruptures and upheavals that are still shaping our present.

Download the article from SSRN at the link.

van den Berge on Law, King of All: Schmitt, Agemben, Pindar @UtrechtUni

Lukas van den Berge, Utrecht University, is publishing Law, King of All: Schmitt, Agamben, Pindar in volume 13 of Law and Humanities (2019). Here is the abstract.

Both Carl Schmitt and Giorgio Agamben draw on the ancient Greek concept of nomos as an important element underpinning their legal theories. Aiming to restore that concept to its pre-sophistic meaning, they grant central weight to a piece of poetry in which Pindar famously proclaims that ‘law (nomos) is king of all’, guiding both mortals and immortals while ‘justifying the utmost violence with a powerful hand’. For Schmitt as for Agamben, this means that the Pindaric fragment exposes the violent origins of law that normativist jurisprudence typically shields from view. For one thing, I will explain in this article why Schmitt’s and Agamben’s use of the fragment is at odds with any acceptable interpretation of it in its wider literary and historical context. More importantly, perhaps, my aim is ultimately to reconstruct a Pindaric jurisprudence as it should actually be preferred to that of both Schmitt and Agamben.

Download the article from SSRN at the link.

Ducato on Brief Notes on Law and Visualisation @RossanaDucato

Rossana Ducato, Université Catholique de Louvain and Université Saint-Louis - Bruxelles, has published De Iurisprudentia Picturata: Brief Notes on Law and Visualisation in the Journal of Open Access to Law, 2019. Here is the abstract.

Law is usually considered a textual phenomenon. From their first steps into a faculty of law students know they will have to prepare for exams on codes and text-books. In their practice lawyers have to formulate opinions, claims or defences in a document or in oral statements. Judges are called on to write decisions which will be read aloud in court and published. Notaries prepare (and confer authenticity on) legal documents and contracts for their clients. Legislators enact laws, decrees and regulations that consist of a series of rules expressed in verbal statements. Legal scholars write books, commentaries, essays and scientific articles starting from the literature review. However, a closer look at legal history demonstrates that textual form is not the only way in which legal concepts and knowledge can be expressed. The goal of the paper is to present how the interplay between law and visualisation can be structured and introduce the contributions to the JOAL first issue on visual law.

Download the article from SSRN at the link.

Law and Humanities Roundtable 2020: Call For Papers, University of Southampton, Friday, July 3, 2020

Law and Humanities Roundtable 2020

CALL FOR PAPERS

University of Southampton, Friday, July 3, 2020 Theme: Law, the Senses and Beyond

This second annual Law and Humanities roundtable invites original paper presentations on the relationship between law and the senses, marking 250 years since the birth of Beethoven. Beethoven’s life and music are marked by acute ambivalences towards political power (initially dedicating his Symphony No.3 to Napoléon Bonaparte and then furiously withdrawing that dedication upon learning that Napoleon had declared himself ‘Emperor’), and towards community and social norms (the composer was [in Goethe’s words] ‘an utterly untamed personality’ who often found ‘the world detestable’ but nevertheless joyfully celebrated solidarity in the choral refrain of his Ninth Symphony – now the anthem of the European Union), as well as by uncanny triumph over his own sensory deprivation in his later years. All of these represent a timely provocation to scholars to reflect on how we experience law, justice and power: about the role and limitations of the senses in this regard, and the ways that law signifies beyond that which can be seen, heard, touched, felt and smelled.

Therefore, interdisciplinary humanities-focused paper presentations are invited for an intimate roundtable event on themes that speak to notions of, for example:

-   Law and acoustics: what can be heard, and not heard, in legal proceedings?

              -  Legal vistas, signs and symbolism: which aspects of law are conspicuous by their visibility, and which by their invisibility?

-          Law and touch: how does law physically touch us (roughly or otherwise), and in what ways does it physically withdraw?

-          Law’s taste and its smell: is it the fine red wine on a judge’s dining table, or the salt spray on a boat carrying undocumented migrants?

If you would like to present a paper at this workshop, please send your title and abstract (up to 500 words) by Friday 13th December 2019 to David Gurnham (School of Law, University of Southampton - d.gurnham@soton.ac.uk), Stephanie Jones (Department of English, Southampton - S.J.Jones@soton.ac.uk), or Gary Watt (School of Law, University of Warwick -g.watt@warwick.ac.uk).

Law and Humanities also welcomes submissions of full-length articles, and the editors are happy to discuss with presenters at this workshop how their piece might be worked up for submission. Please note however that publication cannot be guaranteed since all submissions are peer reviewed.

Greenberg on Legal Interpretation @UCLA_Law

Mark Greenberg, UCLA School of Law and Department of Philosophy, is publishing Legal Interpretation in the Stanford Encyclopedia of Philosophy (forthcoming). Here is the abstract.

This paper is a long version of my chapter on legal interpretation for the Stanford Encyclopedia of Philosophy. A shorter and otherwise modified version will go online soon. But some readers may be interested in the full-length version. Legal interpretation involves scrutinizing legal texts such as the texts of statutes, constitutions, contracts, and wills. This chapter introduces the foundational question of what legal interpretation, by its nature, seeks—and competing answers to that question. It goes on to canvas leading substantive theories of legal interpretation and examines in greater depth a few influential theories and difficulties they encounter. Finally, the chapter considers how theories of legal interpretation should be defended and evaluated.

Download the essay from SSRN at the link.

Pottage on Holocene Jurisprudence @LSELaw

Alain Pottage, London School of Economics, has published Holocene Jurisprudence at 10 Journal of Human Rights and the Environment 153 (2019). Here is the abstract.

We are now accustomed to thinking of the Holocene as an epoch that we have left behind. But from what perspective do we close the Holocene and begin describing the Anthropocene? Academic disciplines have their own geology: epistemic or medial strata, sediments or condensations, which condition the apprehension and communication of fresh insight. The phrase ‘Holocene jurisprudence’ draws attention to a particular epistemic sediment: the figure of appropriation or ‘taking’, which is reactivated in many critical commentaries on the Anthropocene. And if, speaking figuratively, one were to identify an index fossil that compellingly expresses the epistemic traditions and potentialities that are sedimented into the Euro-American figure of appropriation, then Carl Schmitt's Nomos of the Earth would be a good candidate.

Read the full text at the link.

Kornhauser on Lobbying & Taxation, 1924-1936 @TulaneLaw

Marjorie E. Kornhauser, Tulane University School of Law, has published Lobbying & Taxation, 1924–1936 Part 2: American Voices in a Changing Democracy: Women, Lobbying, and Tax 1924–1936. Here is the abstract.

This Part of AMERICAN VOICES IN A CHANGING DEMOCRACY: WOMEN, LOBBYING, AND TAX 1924-1936 provides some background about two important aspects of American democracy that were greatly affected by societal changes during the 1924–1936 period: lobbying and taxation. It begins with a very brief discussion of the importance of lobbying in American politics and then focuses on the “new” lobbying of the 20th century. Although lobbying is as old as history, technological advances, especially in mass communications, facilitated changes in American lobbying that by the 1920s caused such concern among many politicians and commentators that they labeled lobbyists the “third house” of Congress. This Part then concludes with a brief overview of tax issues during 1924–1936 that persist today.

Download this part of the book from SSRN at the link.

Kornhauser on Women & Lobbying, 1924-1936: American Voices in a Changing Democracy @TulaneLaw

Marjorie E. Kornhauser, Tulane University School of Law, has published Women &  Lobbying, 1924–1936 Part 3: American Voices in a Changing Democracy: Women, Lobbying, and Tax 1924–1936. Here is the abstract.

This Part of AMERICAN VOICES IN A CHANGING DEMOCRACY: WOMEN, LOBBYING, AND TAX 1924-1936 provides background about women and lobbying during the 1924 – 1936 period of the book. It begins with a brief discussion of the changing role of women during this period. It describes the ways industrial and societal changes altered women’s roles in the domestic context as well as expanded their place in the public sphere. The chapter then proceeds to a discussion of women’s clubs, women’s political activity and women’s lobbying generally. It concludes with a brief analysis of women as progenitors of the 20th century’s “new” lobbying.

Download this part of the book from SSRN at the link.

Deadline Extended to November 30, 2019: Call For Papers For General Issue Australian Feminist Law Journal @austfem

Deadline extended:

AUSTRALIAN FEMINIST LAW JOURNAL

A Critical Legal Journal

CALL FOR PAPERS FOR GENERAL ISSUE

Volume 46.1, June 2020

 

Deadline EXTENDED – 30 November 2019

 

The Australian Feminist Law Journal is seeking articles for publication for the next General Issue of the Journal, namely Volume 46.1 (June 2020). The journal focuses upon scholarly research using critical feminist approaches to law and justice, broadly conceived. As an international Critical Legal Journal we publish research informed by critical theory, cultural and literary theory, jurisprudential, postcolonial and psychoanalytic approaches, amongst other critical research practices. The length of an article should be from 8,000 to 12,000 words, although shorter articles are welcome. We particularly wish to encourage interdisciplinary and cross-disciplinary writing focusing on law.  Prospective authors are encouraged to submit a proposed abstract to the Managing Editors at an early stage before final submission.

Articles should be submitted electronically to the Managing Editors at: aflj@griffith.edu.au and should include an abstract (300 words), and a brief separate statement regarding their use of critical research methodologies or critical theory.

Refereeing of Articles

The Australian Feminist Law Journal referees all manuscripts submitted for publication as an article and follows the double-blind refereeing procedure. Referees will be selected with expertise in the author’s area of scholarship. Authors are requested to place their name and affiliation on a separate page, and eliminate any self-identifying citation of one’s own work. The journal will not accept manuscripts for consideration that are already under consideration by another journal. The AFLJ has Green Open Access status within national research funding policy.

Manuscript Style and Presentation

The journal style should be followed as closely as possible, to eliminate delays at the time of printing where an incorrect style would necessitate changes.
An electronic version of the journal style guide can be found on the AFLJ website:  http://www.griffith.edu.au/criminology-law/australian-feminist-law-journal/contributor-guide.
Academic and subscription enquiries may be forwarded to aflj@griffith.edu.au

Editor-in-Chief

Judith Grbich

Griffith Law School

Managing Editors

Karen Crawley & Laura Griffin

Griffith Law School

Since 2014 the Australian Feminist Law Journal has been published by Routledge, Taylor & Francis. www.tandfonline.com/rfem

Call For Participants, SEALS 2020 Discussion Group @capricelroberts

Call for Participants for a SEALS 2020 (July 30-Aug 5, Ft. Lauderdale Marriott) Discussion Group. 

If interested, please email the organizer, Professor Mitch Crusto (Loyola NoLa): 

mfcrusto@loyno.edu 

Interdisciplinary Problem-Solving: the Curious Case of Jeffrey Epstein 

Jeffrey Edward Epstein was an American financier and convicted sex offender. On August 8, 2019, Epstein reportedly executed a will (https://www.scribd.com/document/422423833/Jeffrey-Epstein-will#download&from_embed) that gave his vast wealth ($577 million) to a trust, dated the same day of the will. See https://time.com/5656776/jeffrey-epstein-will-estate/. At the time, Epstein was imprisoned, while facing trial for allegations of sexual assaults and sex trafficking. Two days later, he reportedly committed suicide by hanging himself in his jail cell. 

This episode raises both legal and ethics issues relating to the use of a trust to shield a settlor’s assets from the claims of sexual abuse victims. Fraudulent conveyance seems like a logical avenue for legal analysis, while analogizing the trust to a limited liability entity like a corporation or limited liability company also may provide insights.  

As law schools are required to establish learning outcomes that prepare students for real world practice, it is essential that students learn lawyering skill that require interdisciplinary analysis of the law and devise creative arguments to promote their clients’ goals, to attack or to defend the asset protection nature of a trust.

This discussion group explores how to teach creative problem-solving skills, by exploring the intersectionality of criminal law, trust laws, and corporate entity theory. For example, can “piercing the corporate veil” jurisprudence provide a winning argument as to why a court can or should disregard traditional trust law protection against sexual abuse claims of sexual assault by the trust settlor? Such a discussion might show the need for a novel approach to teaching problem-solving, one that is not limited to a narrow legal area of law.

Johns on Dead Circuits and Non-Events @FleurEJ @UNSWLaw

Fleur Johns, University of New South Wales, Faculty of Law, is publishing On Dead Circuits and Non-Events in Contingency and the Course of International Law (Kevin Jon Heller and Ingo Venzke, eds., Oxford University Press) (forthcoming). Here is the abstract.

Many an international law scholar has traced a route for her readers from ignorance, via debunking, to contingency, and onwards to possibility. Carrying scholars along this route is a presumed connection between awareness and agency. If only people recalled (with guidance from sophisticated scholars of international law) how chancy and open-ended international legal history has been, they might have the wherewithal to take their presents and futures in another direction – or so it is often assumed. This chapter will consider some possible perils of work so oriented, both in the sense of the kinds of operations that it leaves untouched and the circuit of humanist expectation that it helps to maintain (specifically, the idea that political capacity is a likely by-product of insight). Amid the increasingly self-organising streams of digits and ‘stuff’ shaping global affairs, this circuit may be especially dangerous for the distractions and disassociations it engenders. What, this chapter will ask, if international legal scholars were to identify possibility with pattern and formula, storage and transmission, rather than irregularity and insight? Perhaps this may spawn a politics better attuned to the now.

Download the essay from SSRN at the link.

Kohm on C. S. Lewis & the Father Wound @LynneMarieKohm @RegentLaw

Lynne Marie Kohm, Regent University School of Law, has published C.S. Lewis &  the Father Wound. Here is the abstract.

This essay combines trends in law and social policy with the life and literature of C. S. Lewis. It presents a new and unique analysis of Lewis’ childhood, connecting his famous works with child and fatherhood concerns facing western civilization today. Examining Lewis' life through a family law social policy lens, the essay works to reveal some significant new considerations about children and the impact fathers have on them throughout their lives. Considering the historical facts of Lewis’ childhood, this essay presents a case that his behavior and writings evidence a degree of father wound, while illustrating how that wound is manifested and healed in some of his most loved fictional work.

Download the essay from SSRN at the link.

U. S. Copyright Office Hosts "Quoth the Raven: Edgar Allan Poe & Derivative Works, October 29, 2019 @CopyrightOffice

The U.S. Copyright Office is hosting the Copyright Matters event "Quoth the Raven: Edgar Allan Poe & Derivative Works" on October 29, at 10:00 a.m. eastern time, in the Montpelier Room, Library of Congress Madison Building, in Washington, DC.

During this event, the Office will discuss Poe's advocacy for copyright law, the breadth of his impact, and the many derivative works Poe has inspired. More than 300 comic book adaptations of Poe's work exist, plus many works use Poe's characters as an inspiration. Moreover, Poe was a strong advocate for copyright protections, especially in the international arena.

After a brief introduction and recitation of The Raven, featured speakers will talk about Poe, his life, his artistry, and the many creative works spawned by his creations. Speakers include Christopher Semtner, curator of the Edgar Allan Poe Museum in Richmond, Virginia; Enrica Jang, executive director of The Edgar Allan Poe House and Museum in Baltimore; and Thad Ciechanowski, owner of Dijit Media and filmmaker, director, and editor.

Please visit the Copyright Office website to register for the event and to stay up-to-date about this program and speakers. Request ADA accommodations five business days in advance at (202) 707-6362 or at ada@loc.gov.

Sherwin on Character as a Sacred Bond @RKSherwin @tandfnewsroom

Richard K. Sherwin, New York Law School, is publishing Character is a Sacred Bond in volume 24 of Angelaki: Journal of the Theoretical Humanities (August 2019). Here is the abstract.

Law clings to rules to stabilize a preferred normative reality. But rules never suffice. Character is the dark matter of law. Ethos anthropos daimon. “Character is fate.” This paradoxically reversible saying by the ancient Greek philosopher Heraclitus asserts that we are defined by the daimon – the god or messenger angel – with which we identify most. As Plato queried in The Phraedrus: which god do you follow, whose love claims you? In contemporary terms we might say, what character type, what emotional ideal, what deep story do you hold most sacred? Out of the maelstrom that is the state of exception – choices must be made. What emotional field shall we occupy when we do politics and law? Bound by what sovereign values or ideals, embodied within what sort of character, emplotted in what sort of political or legal narrative? In synergy with culture, character plays out the emotional conflicts and aspirations of the time. Whether we witness this in the mostly silent resistance of unassimilable characters like Barnardine in Shakespeare’s Measure for Measure or in the silent prayer of 19-year-old Emma Gonzalez, in public protest against uncontrolled gun violence in American schools, we are all called upon, as citizens in public life, to occupy an emotional space that attains centrality within deep narratives that vie for political dominance. Reverse engineering liberal society, we might ask: what emotional and character ideals are optimal in order for a particular kind of political society to arise and be sustained? There is a reciprocal (perhaps paradoxically fungible) relationship between the sovereign authority of law and the character ideals that express a capacity and willingness to accept that authority. What will the configuration be? Addressing this question constitutes the ethical, esthetic, and epistemological calling of our time.

Download the article from SSRN at the link.

Davidson on City Charters as Local Constitutions

Nestor M. Davidson, Fordham University School of Law, has published City Charters as Local Constitutions. Here is the abstract.

City charters are the forgotten constitutions of our federal system. In an era of political gridlock and national polarization, cities and other local governments are increasingly addressing policy concerns once thought of as state, federal, or even international responsibilities. The legal institutions that govern local democracy correspondingly deserve newfound scrutiny. Charters serve many of the same underlying functions that constitutions perform at other levels of government, delineating institutions and articulating areas of “higher” law for local governments, but charters are rarely taken seriously as constitutional documents. This Article argues that foregrounding the constitutional dimensions of city charters provides new theoretical insights into local governance and the role that local governments play in our political order. Charters, like the federal Constitution, can be a locus for constitutional meaning and collective identity, rendering fundamental choices about governmental structure, political process, and individual rights more salient—and doctrinally significant—at the local level. Understanding city charters as constitutional texts, in turn, carries normative implications. Properly approached, charters can reinforce the conception of local governments as democratic polities rather than administrative arms of the state or quasi-private service providers, at a time when the democratic underpinnings of localism are under strain. Improving the constitutional nature of charters can also serve a legitimating function for cities, furthering rule-of-law values such as transparency and stability in local governance. This recognition of the conceptual and normative constitutional potential of city charters, finally, suggests pragmatic pathways for reforming the law and practice surrounding these foundational instruments. The Article accordingly proposes innovations in how state and local governments approach charters, emphasizing the importance of inclusive process in ratifying and amending charters at what are, in essence, critical local constitutional moments.

Download the article from SSRN at the link.

Stanford Center for Law and History Invites Submissions For Law and History Prize @StanfordLawHist

Graduate Student Paper Prize

The Stanford Center for Law and History invites paper submissions from graduate students for its third annual conference, “Working with Intellectual Property: Legal Histories of Innovation, Labor, and Creativity”. The conference will seek to explore aspects of how creative, scientific, technology  and innovation-based communities have organized and negotiated their intellectual property relationships from historical perspectives.  The one-day conference will be held on Friday, May 8, 2020, at Stanford Law School. It will include three panels and a keynote session featuring scholars investigating ways that stakeholders have historically resisted, adapted, adopted, or rejected intellectual property law in their daily practices. We encourage submissions from scholars working across a broad range of disciplines interested in the historical intersection between intellectual property, creativity, innovation, and/or labor.  International, comparative, and US perspectives are all encouraged. 

The conference organizers will select a graduate student as the winner of the SCLH Graduate Student Paper Prize to present on one of the three panels. Funding for travel and housing will be provided.

The application deadline is Sunday, December 1, 2019. For more information and to apply, click here. Please direct any questions to sclh@law.stanford.edu.     

Timofti on Adoption History, From Ancient Societies to Contemporary Societies

Silvia Timofti, Stefan cel Mare University, has published Adoption History. From Ancient Societies to Contemporary Societies part of the RAIS Conference Proceedings - The 14th International RAIS Conference on Social Sciences and Humanities. Here is the abstract.

From the earliest times, the religious factor has said its word on several social systems. The social factor has been of great importance and relevance to the social construction of the communities as well as to the regulation of the various institutions I have chosen the ones that represent the interests of society. Among these institution is adoption, being one of the oldest law institutions. Adoption is a social phenomenon that has undergone changes that have been inevitable and a breakthrough in the turn of the century. This form of social protection of children, adoption, played a particularly important role in antiquity especially in the institutions of the Jews, the Assyrians, the Greeks, the Indians and the Romans, because the adopted person was perceived as the one to represent the perpetuation of the religious and political interests of the people, after the persons who approached the children died.

Download the paper from SSRN at the link.

Bandes on Closure in the Criminal Courtroom: The Birth and Strange Career of an Emotion @BandesSusan

Susan A. Bandes, DePaul University College of Law, is publishing Closure in the Criminal Courtroom: The Birth and Strange Career of an Emotion in the Edward Elgar Research Handbook on Law and Emotion (Susan A. Bandes, Jody Lynee Madeira, Kathryn Temple and Emily Kidd White eds. 2020, Forthcoming). here is the abstract.

Over the last thirty years, the notion that the criminal justice system can help provide closure for victims and their families has gained remarkable traction, both in popular discourse and in the legal arena. Closure is offered—often successfully—as an argument for imposing death sentences, trimming procedural protections, permitting victim impact statements, truncating appeals, denying clemency petitions, speeding up executions, televising executions, and granting the bereaved access to the execution chamber. More broadly, it has transformed the debate about the legitimacy of the capital system—recasting the imposition of the death penalty from a retributive act to an act of compassion for bereaved families. Closure is a puzzle. Its parameters are fuzzy, its dynamics are murky, and its origins seem to have more to do with law and politics than with psychology. There is an argument to be made that closure isn’t an emotion at all, but rather a set of legal aspirations for the conduct of criminal proceedings. Yet closure has increasingly come to be viewed as an emotional state—and one that the criminal justice system is capable of helping victims and survivors attain. It has become a prime example of the power of the criminal justice system to shape emotional expectations. This chapter discusses the evolution of closure as a legal concept, the definitional ambiguities surrounding the term, and the institutional consequences of these ambiguities for the criminal justice system. It examines the symbiotic relationship between closure and the criminal justice system, arguing that the criminal justice system has played a powerful role in reshaping the emotional expectations of victims and their families. The chapter then reviews the empirical literature on closure and criminal justice. Finally, it identifies directions for further study.

Download the essay from SSRN at the link.

Monash Crime Fiction Project Launches October 29, 2019 @Tara_Moss @MonashUni

On occasion of the launch  of the Monash Crime Fiction Project, Monash University (Melbourne, Australia) hosts best-selling author Tara Moss in conversation with Dr. Barbara Pezzotti, reading from and discussing her latest novel Dead Man Switch (release date 21 October 2019). 

The event will take place on 29 October at Monash University, Clayton Campus, Learning and Teaching Building, 19 Ancora Imparo Way, Seminar Room 121, 4-6 p,m. 

The event will be introduced by Dr. Stewart King. 

This is a free event. Booking essential here

The Monash Crime Fiction Project aims to promote the study and creative practice of crime fiction while fostering innovative and creative local and global collaborations. 

Dr Barbara Pezzotti

Editor for Spunti e Ricerche

Lecturer in Italian Studies

School of Languages, Literatures, Cultures and Linguistics

Monash University

Level 5, Menzies Building, Clayton Campus

20 Chancellors Walk

Clayton, VIC 3800 Australia

Star Wars and Conflict Resolution: Call For Chapter Proposals @NoamEbner

CALL FOR CHAPTER PROPOSALS

Star Wars and Conflict Resolution

Editors: Noam Ebner (Creighton University) and Jen Reynolds (University of Oregon)

We seek proposals for chapters in a book combining the knowledge and science of the conflict resolution field with the rich narrative universe of the Star Wars movie saga.

Format: The book, tentatively titled Star Wars and Conflict Resolution, will be an edited collection of essays (4-5000 words each) by conflict resolution experts in academia and practice. We plan to build on the model that has successfully generated similar books in other areas, such as The Ultimate Star Wars and Philosophy (Wiley-Blackwell, 2015) and Star Wars Psychology (Sterling, 2015).

Goal: We aim to share the insights and knowledge of the conflict resolution field with the general public, ranging far beyond those who find their own way to our classrooms. Pop culture opens a gateway to this audience, and Star Wars provides a particularly forceful (!) vehicle for this purpose, given that Star Wars is one of the most widespread cultural phenomena of our time, and conflict and its resolution are central to all of the saga’s narrative themes. The book will bring the conflict resolution community’s intellectual weight and signature trait of playful creativity to bear on Star Wars. Beyond reaching a wide audience, we believe that a substantively rich book, written in a light, humorous tone and animated by passion for conflict resolution and for Star Wars, will invigorate the conflict resolution field and diversify its educational materials.

Topics: You may choose any conflict resolution topic, method of inquiry, and scope of exploration you like. Conflict resolution themes that recur in the Star Wars narrative include conflict contexts, relationships, negotiation, conflict interventions, ethics, process, decision-making, and system design, to name but a few. For example, you might propose to:

• Analyze one scene through a single conflict prism (e.g., ‘The role of attribution in Obi Wan’s final encounter with Anakin’).
• Explore one concept through multiple situations from across the saga (e.g., Use the (BATNA) force: How to win at space chess or alter an Ewok village’s dinner menu’).
• Conduct a case study (e.g., ‘Wesa being friends: The Gungan-Naboo Treaty’).
• Illustrate a comprehensive model via a series of scenes (e.g., ‘R2D2 and C3P0 Get to Yes’).
• Unpack a single line from the films within the broader context of social and political identities today (e.g., Yoda: “Wars not make one great”).
As the book’s aim is to harness widely familiar material to conflict resolution topics, chapters should primarily relate to topics, characters, and scenes from the eleven Star Wars movies. Lesser-known material (books, cartoons, videogames etc., canon or non-canon) can be referenced, but should not be central to the chapter. We will provide further details on content and style to authors after acceptance.
Submission guidelines: Please send a description of your proposed chapter in about 300 words, along with your short bio or CV, to Noam Ebner (noamebner@creighton.edu) and Jen Reynolds (jwr@uoregon.edu), by December 31, 2019. Feel free to reach out to us with any questions.

Mendenhall on Justice Holmes, Bad Boy @allenmendenhall

Allen Mendenhall, Faulkner University School of Law, is publishing Justice Holmes, Bad Boy in volume 34 of the Berkeley Journal of Gender, Law & Justice (2019). Here is the abstract.

James M. Kang's "Oliver Wendell Holmes and Fixations of Manliness" undertakes a particularly charged subject in light of the #MeToo Movement and accumulating accusations of "toxic masculinity." Kang is right to recognize the abiding influence of Ralph Waldo Emerson on Holmes, but his construal of manliness or masculinity is generalized and ill-explained. The lack of a clear definition for manliness confounds Kang's treatment of Holmes as a reckless youth and than as a grown man who admired soldierly courage. Nor does Kang demonstrate a familiarity with polemical, important theories in the field of gender studies. This review essay suggests that a more persuasive interpretation of the manliness that appears to characterize Holmes might be found in Harvey C. Mansfield's insightful yet controversial "Manliness," which discusses the Darwinian, Nietzschean influences that shaped conceptions of manliness in the late nineteenth and early twentieth centuries. Although Mansfield does not make room for Emerson or Holmes in his study, he captures the Emersonian individualism that Kang identifies in Holmes. Mansfield's focus on Nietzsche is striking in light of the philosophical nexus between Emerson and Nietzsche, and indeed between Holmes and Nietzsche.

Download the article from SSRN at the link.

Van den Berge on Law, King of All: Schmitt, Agemben, Pindar @UtrechtUni

Lukas van den Berge, Utrecht University, is publishing Law, King of All: Schmitt, Agamben, Pindar in volume 13 of Law and Humanities (2019). Here is the abstract.

Both Carl Schmitt and Giorgio Agamben draw on the ancient Greek concept of nomos as an important element underpinning their legal theories. Aiming to restore that concept to its pre-sophistic meaning, they grant central weight to a piece of poetry in which Pindar famously proclaims that ‘law (nomos) is king of all’, guiding both mortals and immortals while ‘justifying the utmost violence with a powerful hand’. For Schmitt as for Agamben, this means that the Pindaric fragment exposes the violent origins of law that normativist jurisprudence typically shields from view. For one thing, I will explain in this article why Schmitt’s and Agamben’s use of the fragment is at odds with any acceptable interpretation of it in its wider literary and historical context. More importantly, perhaps, my aim is ultimately to reconstruct a Pindaric jurisprudence as it should actually be preferred to that of both Schmitt and Agamben.

Download the article from SSRN at the link.

SMU Law Review's Free Speech Symposium: The 100th Anniversary of Schenck and Abrams @SMULawReview @SMULawSchool

The Southern Methodist University Law Review has published scholarship from its recent Free Speech Symposium in its current issue. Read the articles online here.  A great line-up of authors!

Lackland H. Bloom, Jr., The Lessons of 1919

Dale Carpenter, Born in Dissent: Free Speech and Gay Rights

Larry Alexander, Inciting, Requesting, Provoking, or Persuading Others To Commit Crimes: The Legacy of Schenck and Abrams in Free Speech Jurisprudence

Kent Greenawalt, Speech and Exercise By Private Individuals and Organizations

Ronald J. Krotoszynski, Jr., The Clear and Present Danger Test: Schenck and Abrams Revisited

Mari Matsuda, Dissent In a  Crowded Theater

Rodney A. Smolla, "And the Truth Shall Make You Free": Schenck, Abrams, and a Hundred Years of History

Alexander Tsesis, Deliberative Democracy, Truth, and Holmesian Social Darwinism

G. Edward White, Falsity and the First Amendment

Christopher Wolfe, Originalist Reflections on Constitutional Freedom of Speech

Cross-posted to Media Law Prof Blog

Carpenter on Free Speech and Gay Rights @SMULawSchool

Dale Carpenter, Southern Methodist University School of Law, has published Born in Dissent: Free Speech and Gay Rights at 72 SMU Law Review 375 (2019). Here is the abstract.

It is no stretch to say that Justice Oliver Wendell Holmes created the modern First Amendment a hundred years ago in his dissent in Schenck v. United States. It is equally true that the First Amendment created gay America. For advocates of gay legal and social equality, there has been no more reliable and important constitutional text. The freedoms it guarantees protected gay cultural and political institutions from state regulation designed to impose a contrary vision of the good life. Gay organizations, clubs, bars, politicians, journals, newspapers, radio programs, television shows, web sites—all of these—would have been swept away in the absence of a strong and particularly libertarian First Amendment. It shielded gay political efforts when most of the country thought homosexuals were not just immoral, but also sick, dangerous, and criminal. This essay tells the story of the Chicago-based Society of Human Rights, the very first gay political organization in the United States, which was founded by Henry Gerber in 1924—five years after Schenck, but before the full meaning of the dissent was accepted First Amendment doctrine. The police quickly shut down the group and arrested its members. Justice Holmes himself never met Gerber. He would have found the idea of a gay rights organization incomprehensible, something more akin to the bizarre sex cult Chicago police thought they had discovered rather than the noble experiment Gerber thought he was launching. But if it’s true that the best test of truth is the power of the thought to get itself accepted in the competition of the market, the idea of freedom and equality for LGBT people has attained the status of Holmesian truth.

Download the article from SSRN at the link.