Slavery As Immigration

Rhonda V. Magee, University of San Francisco Law School, has published Slavery as Immigration? in volume 44 of the University of San Francisco Law Review (2009). Here is the abstract.

Slavery as Immigration? In this essay, the author argues that transatlantic slavery was, in significant part, an immigration system of a particularly pernicious sort – a system of forced migration immigration aimed at fulfilling the nascent country's needs for a controllable labor population, and desire for a racialized one. As such, the law and policy of chattel slavery should be viewed as perhaps the most important historical antecedent to contemporary immigration law regarding low- and unskilled labor in the United States. Following an analysis of the treatment of chattel slavery in general immigration history scholarship, and in scholarship on the history of immigration law, the author concludes that immigration law texts must include a discussion of chattel slavery that properly locates that system as a forerunner of modern immigration law and policy, and immigration scholars should devote more attention to chattel slavery. She concludes with a discussion of the broader implications of such a reframing for the American national community as a whole.

 Download the article from SSRN at the link.

Audio Files Available For Morawetz Book On Law and Literature

Now available from Wolters/Kluwer: Audio Files to accompany Thomas Morawetz's book Literature and the Law (originally published 2007). More here.

Some New Books of Interest

Some new books of interest

The Creation of the "IUS Commune": From "Casus" to "Regula" edited by John W. Cairns and Paul J. du Plessis (John W. Cairns and Paul J. du Plessis, eds. Edinburgh University Press, dist. Columbia University Press, 2010).


Jackson, Cassandra, Violence, Visual Culture, and the Black Male Body (Routledge, 2010).


Kidd, Thomas S., God of Liberty: A Religious History of the American Revolution (Basic Books, 2010).

Kohl, Christiane, The Witness House: Nazis and Holocaust Survivors Sharing a Villa During the Nuremberg Trials (Other Press, 2010). Translated by Anthea Bell.


Lerner, Josh, and Mark Schankerman, The Comingled Code: Open Source and Economic Development (MIT Press, 2010).



Livingston, James D., Arsenic and Clam Chowder: Murder in Gilded Age New York (State University of New York Press, 2010).

Mackedon, Michon, Bombast: Spinning Atoms in the Desert (Black Rock Institute Press, distributed by Museum of New Mexico Press, 2010).




Savage, Robert J., A Loss of Innocence? Television and Irish Society, 1960-72 (Manchester University Press, dist., Palgrave Macmillan, 2010).

Titone, Nora, My Thoughts Be Bloody: The Bitter Rivalry Between Edwin and John Wilkes Booth That Led to an American Tragedy (Free Press, 2010). 

Theory of Sovereignty In the Hebrew Bible

Geoffrey P. Miller, New York University School of Law, has published Sovereignty and Conquest in the Hebrew Bible, as NYU School of Law, Public Law Research Paper No. 10-61. Here is the abstract.

This article examines the Hebrew Bible’s theory of sovereignty with special reference to the book of Joshua. The author conceives of sovereignty as the exclusive and absolute control over territory. The sovereign is “all Israel” – the biblical analogue to “we the people.” The territory is the land promised to the Patriarchs and partially conquered by Joshua in the war of conquest. Israel’s title to this territory is established vis-à-vis foreign nations by boundary agreement (Aram), partition (Ammon and Moab), abandonment (Edom), and renunciation (Egypt); its right to dispossess the prior inhabitants is based on theories of conquest, capacity, appropriation, grant, promise, purchase and contract. Israel’s control over territory is explored in narratives describing the allocation of the Promised Land. The author’s approach is pragmatic rather than programmatic, stressing the value of fair procedures and recognizing arguments for distributive justice based on merit, equality, productivity, expectations and need. The author argues that a property distribution, even if fair ex ante, must also be accepted as reasonable ex post.

Download the full text from SSRN at the link.

Documentary Films, Law and Justice

Cynthia D. Bond, The John Marshall Law School, has published Documenting Law: Reality & Representation on Trial. Here is the abstract.

Documentary films frequently address issues of social and political injustice; thus, however indirectly, implicating law as their subject. Documentary film and legal process also frequently share formal similarities as they both seek to reconstruct actual events through representational techniques. Thus, notions of the truth are deeply overdetermined in documentary films about law. To most lay spectators, such documentaries are truth-seeking systems (documentary film) depicting a truth-seeking system (law). Thus, it is particularly useful to analyze the impressions of law lay spectators gain (or confirm) from these films since, given the truth claims of documentaries, spectators may more fully trust images of law in them than in fiction film. Documentaries engage different strategies in ignoring, negotiating, or acknowledging the overdetermined sources of truth they contain. First, many documentaries mount a competing narrative of truth, contesting the ability of legal processes to adequately find the truth (a dynamic this article dubs “Film vs. Law”). Alternatively, documentaries may contest law’s truth claims without fully supplanting them with their own purportedly superior access to truth (“Film and Law”). These films both critique the truth claims of the legal process while acknowledging the inevitably open-ended and provisional nature of the events they reference. Finally, documentaries may underline the shared representational techniques of law and film to reveal the vexed nature of accessing the truth in both realms (“Film = Law”). These three documentary strategies are defined in part by the stylistic choices the films make, and by the on- and off-screen performance of the filmmaker’s relationship with his or her subject. Yet regardless of a particular documentary film style, the notion of the truth of depicted events is an inescapable element of the documentary narrative.

Download the full text from SSRN at the link.

Summer Institute in Legal History and Post-Doc at Wisconsin

Hurst Summer Institute in Legal History at Wisconsin


Next two week biennial session will take place in June 2011; apply by 1/15/11.

Complete information and application instructions can be found at

http://law.wisc.edu/ils/hurst_institute.htm



The Hurst Summer Institute in Legal History is a biennial event sponsored by the Institute for Legal Studies at the University of Wisconsin Law School in conjunction with the American Society for Legal History (ASLH). A committee appointed by the ASLH reviews applications from early-career faculty members, doctoral students with completed or nearly completed dissertations, and recent J.D. graduates demonstrating interest in an academic career with a focus on legal history, and selects 12 promising scholars as Institute Fellows. The Fellows come to Madison for two weeks in June to participate in daily seminars, meet other legal historians, and analyze and discuss each others work. Each biennial Institute is organized and chaired by senior legal historians and includes visiting scholars who lead specialized sessions.



The purpose of the Hurst Summer Institute is to advance the approach to legal scholarship fostered by J. Willard Hurst in his teaching, mentoring, and scholarship. The Hurst Summer Institute assists scholars from law, history, and other disciplines in pursuing research in legal history. It also develops teaching skills by deepening the understanding of legal history and developing methods for incorporating it into the law school and undergraduate history curriculum. More importantly, it provides junior faculty a unique opportunity to work closely over an extended period of time with distinguished senior faculty and thus continue the tradition of excellence in research, teaching, and mentoring others. Finally, the Hurst Institute establishes relationships and cultivates a network of scholars for mutual support throughout their careers.

______________________________________________________________



Law and Society Post-Doctoral Fellowship at Wisconsin

One-year fellowship for early-career scholars who work in the "law and society" tradition and who will be competing for university-level teaching jobs in the U.S. market.

For 2011-12 academic year, apply by 1/7/11.

Complete information and application instructions can be found at:

http://law.wisc.edu/ils/lawandsocietyfellowship.html



The Institute for Legal Studies of the University of Wisconsin Law School will appoint a post-doctoral fellow for the 2010-11 academic year. We invite applications from scholars who are in the early (pre-tenure) stage of their career or whose careers have been interrupted or delayed. Eligibility is limited to humanities or social science scholars who work in the law and society tradition, for example, anthropologists, economists, historians, political scientists, and sociologists. Advanced ABD graduate students may apply, but the PhD must be completed before beginning the fellowship. The stipend will be $25,000, plus a research allowance of $5,000 and benefits that include health insurance.



The fellowship is designed to support a scholar at an early stage in his or her career when, under prevailing circumstances, career pressures or teaching responsibilities might divert the individual away from research. At the Institute, the Fellow will be able to devote most of his or her time to research and writing and will find a sympathetic and critical audience to support that work. Fellows are expected to be in full-time residence in Madison, to organize and lead a colloquium for graduate students, and to participate in the intellectual life of the Institute, which includes lectures, workshops, and conferences.



This fellowship is intended for early career social science and humanities scholars whose research contains a strong legal component and who plan to compete for a University teaching position in the U.S. market. Non-US citizens may apply, but must meet the stated criteria.



Howard S. Erlanger

Director, Institute for Legal Studies



Professor of Sociology &

Voss-Bascom Professor of Law

University of Wisconsin - Madison

New Law and the Humanities Books From Ashgate Publishing

New books available or due out soon from Ashgate Publishing:

Cathrine O. Frank, Law, Literature, and the Transmission of Culture in England, 1837-1925 (2010)

Christopher Frank, Master and Servant Law: Chartists, Trade Unions, Radical Lawyers and the Magistracy in England, 1840-1865 (2010)

Kelly Hager, Dickens and the Rise of Divorce: The Failed Marriage Plot and the Novel Tradition (2010)


Henry Ansgar Kelly, Law and Religion in Chaucer's England (2010) (Variorum Collected Studies Series; CS957)

Dennis R. Klinck, Conscience, Equity and the Court of Chancery in Early Modern England (2010)

Bridget M. Marshall, The Transatlantic Gothic Novel and the Law, 1790-1860 (January 2011)

Call For Papers

1st Global Conference


Queer Sexualities

13th to 15th May 2011

Warsaw, Poland



Call for Papers

20 years since the reclamation of the word 'queer'

by the LGBTQ community this conference would like to take a closer look at broad themes of queer sexualities through time and space, non-normative sexual constructions and queer sexual identities from a diverse range of perspectives by scholars working in various academic disciplines. Yet our meaning of the word queer is not limited to the non-mainstream sexuality as we opt for inclusion of 'unusual'

heterosexual practices into the 'queer domain' in order not to discriminate but understand, include and accept.



Papers, reports, work-in-progress and workshops are invited on issues related to the following themes:



* the role of historical forces in shaping queer

sexuality(ies)

* historiography of queer sexualities

* the politics of queer sexualities

* queertopias and the politics of gender

* queer identities/sexualities in literature and art

* queer sexualities and the body - literary and non-literary

* representations and resistances of non-normative corporeality

* beyond queer sex and sexuality

* queerotica vs. queerporn

* queer sexualities and performativity

* queer sexualities and age

* queer sexualities and theory (queer theory, straight queer theory,

* sexuality studies, disability studies, feminist perspective, fat studies etc.



The Steering Group particularly welcomes the submission of pre-formed panel proposals. Papers will also be considered on any related theme.

300 word abstracts should be submitted by Friday 26th November 2010. If an abstract is accepted for the conference, a full draft paper should be submitted by Friday 1st April 2011.



300 word abstracts should be submitted

simultaneously to both Organising Chairs; abstracts may be in Word, WordPerfect, or RTF formats with the following information and in this

order:



a) author(s), b) affiliation, c) email address, d) title of abstract, e) body of abstract.

E-mails should be entitled: QS1 Abstract Submission.



Please use plain text (Times Roman 12) and abstain from using footnotes and any special formatting, characters or emphasis (such as bold, italics or underline). We acknowledge receipt and answer to all paper proposals submitted. If you do not receive a reply from us in a week you should assume we did not receive your proposal; it might be lost in cyberspace! We suggest that you look for an alternative electronic route or resend.



Organising Chairs



Malwina Degórska (Conference Leader)

English Department

University of Szczecin

Szczecin, Poland

E-mail: mdegorska@gmail.com



Barbara Braid

English Department,

University of Szczecin,

Szczecin, Poland

E-mail: barbara.braid@gmail.com



Rob Fisher

Network Founder and Network Leader,

Inter-Disciplinary.Net, Oxfordshire, United Kingdom.

E-mail: qs@inter-disciplinary.net



The conference is part of the At the Interface programme of research projects. It aims to bring together people from different areas and interests to share ideas and explore various discussions which are innovative and exciting. All papers accepted for and presented at the conference will be eligible for publication in an ISBN eBook. Selected papers may be developed for publication in a themed hard copy volume(s).



For further details about the project please visit:

http://www.inter-disciplinary.net/at-the-interface/gender-and-sexuality/queer-sexualities/
For further details about the conference please visit:


http://www.inter-disciplinary.net/at-the-interface/gender-and-sexuality/queer-sexualities/call-for-papers/

"Outlaw" Debuts

The Blog of Legal Times takes aim at Outlaw, Jimmy Smits' new legal drama on NBC. Pow! Smash! Bam! Generally, BLT doesn't like the new show. Here's an excerpt.

Maybe it was when Jimmy Smits' character, Supreme Court Justice Cyrus Garza, got into an argument with a comely American Civil Liberties Union lawyer who was picketing a public appearance of his -- followed shortly by the two of them sleeping together.

Or maybe it was the scene in which a U.S. senator ominously threatens Garza with impeachment or bodily injury if he votes a certain way on a pending case. Or it could have been a dozen other scenes in which NBC's new show "Outlaw," which aired last night, asks viewers not just to suspend their disbelief but throw it out the window. The show in every way seemed to fulfill most critics' expectations, which were that 'Outlaw' is a stinker that won't and shouldn't last longer than it takes to say non compos mentis.

Other reviews here: from the Sun-Sentinel; from the Seattle Post-Intelligencer; from the New York Post; from the Boston Herald.

I decided to watch the premiere (which I missed) and another episode online. After about fifteen minutes, I threw in the towel. Never mind that Smits' character has little of the affect of a Supreme Court Justice. Never mind that a real Supreme Court Justice is not likely to allow a young woman to flounce about in his anteroom or sit seductively on his desk. Never mind that a Supreme Court Justice is likely to come on to a woman he doesn't know in public. Ick. And what awful procedural slips. An SCJ does not issue a stay of execution AND send the case back for retrial all by his lonesome. Yes, yes, I know, legal dramas don't have to be completely true to life, but this show really does veer pretty far from what I at least can accept, much as I love legal shows and TV drama in general. What can other viewers accept?

I also watched the second episode as aired. This one I liked a little better. The acting, I thought, good. Mr. Smits always amazes me, and the rest of the cast is good. But again, the plot was average.

"Outlaw" should be outlawed. I give it (maybe) one more episode. Too bad. I like Jimmy Smits as an actor. He needs better material than this.

Popular Culture In University Teaching

From the Chronicle of Higher Education's Tweed Blog, professors who use popular culture in their teaching.

Narrative and Truth in the Documentary

Cynthia D. Bond, The John Marshall Law School, has published Documenting Law: Reality & Representation on Trial. Here is the abstract.

Documentary films frequently address issues of social and political injustice; thus, however indirectly, implicating law as their subject. Documentary film and legal process also frequently share formal similarities as they both seek to reconstruct actual events through representational techniques. Thus, notions of the truth are deeply overdetermined in documentary films about law. To most lay spectators, such documentaries are truth-seeking systems (documentary film) depicting a truth-seeking system (law). Thus, it is particularly useful to analyze the impressions of law lay spectators gain (or confirm) from these films since, given the truth claims of documentaries, spectators may more fully trust images of law in them than in fiction film. Documentaries engage different strategies in ignoring, negotiating, or acknowledging the overdetermined sources of truth they contain. First, many documentaries mount a competing narrative of truth, contesting the ability of legal processes to adequately find the truth (a dynamic this article dubs “Film vs. Law”). Alternatively, documentaries may contest law’s truth claims without fully supplanting them with their own purportedly superior access to truth (“Film and Law”). These films both critique the truth claims of the legal process while acknowledging the inevitably open-ended and provisional nature of the events they reference. Finally, documentaries may underline the shared representational techniques of law and film to reveal the vexed nature of accessing the truth in both realms (“Film = Law”). These three documentary strategies are defined in part by the stylistic choices the films make, and by the on- and off-screen performance of the filmmaker’s relationship with his or her subject. Yet regardless of a particular documentary film style, the notion of the truth of depicted events is an inescapable element of the documentary narrative.

Download the paper from SSRN at the link.

The Nuremberg Trials in Historical and Cultural Context

Christiane Wilke, Carleton University, Department of Law, has published Reconsecrating the Temple of Justice: Invocations of Civilization and Humanity in the Nuremberg Justice Case, at 24 Canadian Journal of Law and Society 181 (2009). Here is the abstract.

The Nuremberg Trials provide the foundation for contemporary international criminal law. Yet these trials are rarely explored in their broader ideational and social context. This article examines the context and role of the concept of “civilization” as used in U.S. v Altstoetter, the 1947 trial of Nazi judges and judicial administrators at Nuremberg. I place the reference to civilization in Altstoetter within a tradition of international law that understood law and civilization as co-constitutive. The Altstoetter Court conceptualized Germany as an essentially civilized country that lapsed into barbaric and therefore lawless violence. This account helped the Court to establish the blameworthiness of the defendants’ conduct, blame the Nazi violence on lawlessness, and establish its own authority.

Download the article from SSRN at the link.

A New Book on Law and the Bible

Recently published by Jonathan Burnside, God, Justice, and Society: Aspects of Law and Legality in the Bible (Oxford, 2010). Here is the abstract.

What is the real meaning of 'an eye for an eye and a tooth for a tooth'? Where did the idea for the 'Jubilee 2000' and 'Drop the Debt' campaigns come from? And what, really, are the 'Ten Commandments'? In God, Justice, and Society , Jonathan Burnside looks at aspects of law and legality in the Bible, from the patriarchal narratives in the Hebrew Bible through to the trials of Jesus in the New Testament. He explores the nature of biblical law, legal thinking, and legal institutions by setting the biblical texts in their literary, social, and theological context.

Burnside questions the biblical texts from the perspective of an academic lawyer and criminologist and asks what the biblical materials contribute to our understanding about the nature and character of law. He examines much of biblical law and narrative that has formed the basis of Western civilization, while at the same time exploring differences between biblical law and modern legal concepts and legal assumptions. The resulting book is a cross-disciplinary analysis which recognizes the integration of law and theology.

God, Justice and Society presents biblical law as an integration of instructional genres in the Bible which together express a vision of a society ultimately accountable to God. Burnside seeks to understand both the application of law and legal theory to the Bible and the extent to which biblical law contributes important insights into legal dilemmas in today's world.

A holistic teaching website to support this book, containing downloadable resources, is available at www.seekjustice.co.uk.

Why Films About the Wrong Side of the Law Are So Appealing

From the New York Times, an article on the history and evolution of the crime film.

Protecting Intellectual Property "In Progress"

Nathan Murphy, University of Connecticut, has published Thème Et Varaations: Why the Visual Artists Rights Act Should Not Protect Works-in-Progress, at 17 UCLA Entertainment Law Review 110 (2010). Here is the abstract.

Many countries recognize "moral rights," which allow artists some level of control of their art after it is sold, for example by guaranteeing that their work’s authorship is acknowledged and that it cannot be modified without their permission. In contrast to Europe, where they have long existed, these rights have only been broadly recognized in American law since 1990, when Congress enacted the Visual Artists Rights Act (VARA).



Although other parts of VARA have received extensive scholarly attention, one question that has been essentially overlooked is whether VARA applies to unfinished works of art. This is surprising, because it has been central in some of the most well-known VARA decisions. Until very recently, those opinions that could have weighed in on the issue have also avoided it. But given how often the issue arises, courts could not avoid it forever, and in late January of 2010, the United States Court of Appeals for the First Circuit decided in Massachusetts Museum of Contemporary Art v. Büchel, No. 08-2199, 2010 WL 297834 (1st Cir. Jan 27, 2010), that VARA fully applies to works-in-progress, from the first stroke of the artist’s brush onward.



Although some authors have rejected the doctrine of "moral rights" wholesale, that is most decidedly not the aim of this paper. Instead, its central argument is that VARA does not (and should not) apply to any works-in-progress, regardless of whether these works would (or should) be protected in finished form. Although this implies that that MassMoCA was wrongly decided, the argument is much broader. Indeed, the MassMoCA opinion’s cursory analysis belies the fact that the question of works-in-progress is very complex. Accordingly, this paper examines VARA’s statutory history, contemporary art theory, and the economic underpinning of the unique American moral-rights framework and concludes that they all suggest no VARA protection for works-in-progress. Further, this reading is (counterintuitively) most consistent with the statute’s aim to protect artists’ moral rights. Unlike with completed art, "moral rights" in unfinished works are protected existing legal remedies.

Download the article from SSRN at the link.

The History of Fair Use

Matthew Sag, DePaul University College of Law, has published The Pre-History of Fair Use. Here is the abstract.

This article reconsiders the history of copyright’s pivotal fair use doctrine. The history of fair use does not in fact begin with early American cases such as Folsom v. Marsh in 1841, as most accounts assume - the complete history of the fair use doctrine begins with over a century of copyright litigation in the English courts. Reviewing this ‘pre-history’ of the American fair use doctrine leads to three significant conclusions. The first is that copyright and fair use evolved together. Virtually from its inception, statutory copyright went well beyond merely mechanical acts of reproduction and was defined by the concept of fair abridgment. The second insight gained by extending our historical view is that there is in fact substantial continuity between fair abridgment in the pre-modern era and fair use in the United States today. These findings have substantial implications for copyright law today, the principal one being that fair use is central to the formulation of copyright, and not a mere exception.



The third conclusion relates to the contribution of Folsom v. Marsh itself. The pre-modern cases illustrate a half-formed notion of the derivative right: unauthorized derivatives could be enjoined to defend the market of the original work, but they did not constitute a separate market unto themselves. Folsom departs from the earlier English cases in that it recognizes derivatives as inherently valuable, not just a thing to be enjoined to defend the original work against substitution. This subtle shift is important because while the boundaries of a defensive derivative right can be ascertained with respect to the effect of the defendant’s work on the plaintiff’s original market, the boundaries of an offensive derivative right can only be determined with reference to some other limiting principle. This extension of the derivative right may well have been inevitable. It seems likely that as more and more derivatives were enjoined defensively, courts and copyright owners began to see these derivatives as part of the author’s inherent rights in relation to his creation. In other words, once copyright owners were allowed to preclude derivatives to prevent competition with their original works, they quickly grew bold enough to assert an exclusive right in derivative works for their own sake. A development which, for good or ill, bridges the gap between pre-modern and modern copyright.

Download the article from SSRN at the link.

Another Review of David Rabban's Law's History

Roy Kreitner, Harvard University Institute for Global Law and Policy, and Tel Aviv University, Buchmann Faculty of Law, has published Heroes, Anti-Heroes, and Villains, at  1 Jerusalem Review of Legal Studies 96 (2010). Here is the abstract.

This is Roy Kreitner's contribution to the symposium on David Rabban's book “Law’s History: Late Nineteenth-Century American Legal Scholarship and the Transatlantic Turn to History”.

Download the article from SSRN at the link.

A Review of David Rabban's Law's History

Ron Harris, Tel Aviv University, Buchmann Faculty of Law, has published The Politics of Historical Narratives: Comment on David Rabban’s Law’s History at 1 Jerusalem Review of Legal Studies 81 (2010). Here is the abstract.

This is Ron Harris's contribution to the symposium on David Rabban's book “Law’s History: Late Nineteenth-Century American Legal Scholarship and the Transatlantic Turn to History”.

Download the article from SSRN at the link.