January 27, 2011

Conference on Law, Science, and Technology

From Dr. Maksymilian Del Mar, Institut des sciences sociales, Université de Lausanne, Switzerland, news of an interesting conference to be held in August.

The Congress of the International Association for Legal and Social Philosophy (IVR), to be held August 15-20, 2011, in Frankfurt,  has the theme "Law, Science, and Technology." Dr. Del Mar and Dr. Randy Gordon are organizing one workshop on exemplary narratives and are particularly interested in interdiscplinary papers in the areas of law and literature and law and legal and literary theory. There will also be papers presented that discuss the role of exemplary narratives historically and in theological practices, particularly in Jewish legal theory.

Anyone interested can get in touch with Dr. Del Mar at Maksymilian.DelMar@unil.ch) and/or Dr.Gordon at rgordon@gardere.com.

January 26, 2011

Call For Papers



May 13-14, 2011, Vancouver

Registration Deadline: April 1, 2011

Submission Deadline: February 4, 2011

The Graduate Law Students' Society of UBC invites graduate students in all disciplines to participate in its 16th annual interdisciplinary academic conference, to be held in Vancouver, Canada, on May 13-14, 2011.


The theme for the 2011 conference is Creative Law. The conference is intended to promote reflection on "creativity and the law" in all the possible senses of that phrase: law and its interaction with the arts, including literature and theatre; innovation within the law and innovative uses of the law; the development of new law; legal postmodernism; new and distinctive ways of interpreting law; the relationship between law and religion; the application, adoption or appropriation of law in or by other disciplines and in a thousand other ways. We encourage scholars to critique or apply the law in new and unexpected ways, and in doing so to consider the field of law as one that is bounded not by the strictures of formal law but only by the creativity of the scholar interpreting or applying that law. We also strongly encourage abstracts that approach law from a more traditional perspective, especially those that consider the ways in which traditional scholarship can respond to the creative impulses of law (and its practitioners), as well as the benefits and limitations of approaching law and legal theory from more traditional perspectives.


Proposals should include the title of the paper, a 250 word abstract, and the student's full institutional affiliation, e-mail address and phone number. Presenters should be current graduate students or have recently completed graduate studies (exceptional proposals from 3rd year LL.B./J.D./B.A. students may be accepted). Early submissions are strongly encouraged as participation is limited. In order to keep registration fees as low as possible, funds cannot be provided to assist with travel or other costs of participation. The general working language of the conference will be English.

Abstract Submission Deadline: February 4, 2011

Please email your abstract to:

Email: lawgradcon@gmail.com


Registration deadline and fees payable by: April 1, 2011

Conference Dates: Friday - Saturday, May 13 & 14, 2011

Conference Location: The University of British Columbia,

Vancouver, BC

The registration form can be found on the conference

website at:


Conference organizers can also be contacted at:

Email: lawgradcon@gmail.com

Whodunit? BBC Plans To Answer the Edwin Drood Question This Year

The BBC will offer an answer to The Mystery of Edwin Drood in a new adaptation by Gwenyth Hughes. The new version will air on BBC4 later this year.

January 21, 2011

Legal Tomfoolery

Angela Fernandez, University of Toronto Faculty of Law, has published The Ancient and Honorable Court of Dover: Mock Trials, Fraternal Orders, and Solemn Foolery in Nineteenth-Century New York State. Here is the abstract.

This article is about a fraternal order operating in the first half of the Nineteenth Century in New York called “The Ancient and Honorable Court of Dover.” This group organized a mock trial, probably in 1834, to prosecute one of its members. A prosecutor was appointed and the President of the group gave a long speech. At issue was whether or not non-members could participate in the trial. After a description of these records and an account of their discovery, this article explains who the individuals involved in the trial were, Jacksonian politicians and lawyers with connections to the Custom House and the Tammany Society in New York City. It then describes what a “Court of Dover” was, asks about what the offence here was, and explores the connections between this group and the most famous “Ancient and Honorable” society, the Freemasons. It argues that the records of a group like this should be understood as a kind of “legal literature” that is best understood in relationship to the notion of “solemn foolery,” a phrase that has been used in connection to the legally-themed theatricals at the Inns of Court.
Download the paper from SSRN at the link.

January 19, 2011

Jack Bauer and "24": Torture In American Culture

Kate Kovarovic, American University Washington College of Law, has published Our ‘Jack Bauer’ Culture: Eliminating the Ticking Time Bomb Exception to Torture in volume 22 of the Florida Journal of International Law (2010). Here is the abstract.

After eight successful seasons on the air, Americans have come to trust Jack Bauer of 24 to get the job done. Regardless of the circumstances, Jack always succeeds where most men cannot; Jack can always find a way to break a terrorist suspect and obtain the exact information he needs to save the world. Because of this unrealistic portrayal of the successes of torture, Americans have also come to expect that Jack Bauer is not the exception, but the norm. The War on Terror has introduced a new legal theory to the American consciousness: that of the ticking time bomb exception. Despite the country’s pledge to uphold the principles of the ICCPR and the Convention against Torture, more and more Americans are rallying around the ticking time bomb exception, which permits government officials to torture a suspect who might possess critical information regarding an imminent security threat. This paper seeks to convey that the ticking time bomb exception is strictly prohibited under national and international law, and to place the ticking time bomb exception in a more realistic context for the American public.
Download the article from SSRN at the link.

January 14, 2011

New Television Dramas

This January sees the premiere of two new legal series. "Harry's Law", which stars Linda Bates, premieres January 17 on NBC at 10, 9 Central Time. Harry is a patent lawyer, fired from her firm who begins again as a criminal law attorney. "Fairly Legal" stars Sarah Shahi and premieres on the USA Network on January 20 at 10, 9 Central Time. Kate Reed is an attorney working at her family firm who decides to become a mediator.

The Critique of Law In "A Passage To India"

Allen Mendenhall, Auburn University, West Virginia University, Temple University, and Furman University, has published The Oft-Ignored Mr. Turton: The Role of District Collector in a Passage to India as volume 2, no. 44 of Libertarian Papers (2010). Here is the abstract.

E.M. Forster’s A Passage to India presents Brahman Hindu jurisprudence as an alternative to British rule of law, a utilitarian jurisprudence that hinges on mercantilism, central planning, and imperialism. Building on John Hasnas’s critiques of rule of law and Murray Rothbard’s critiques of Benthamite utilitarianism, this essay argues that Forster’s depictions of Brahman Hindu in the novel endorse polycentric legal systems. Mr. Turton is the local district collector whose job is to pander to both British and Indian interests; positioned as such, Turton is a site for critique and comparison. Forster uses Turton to show that Brahman Hindu jurisprudence is fair and more effective than British bureaucratic administration. Forster’s depictions of Brahman Hindu are not verisimilar, and Brahman Hindu does not recommend a particular jurisprudence. But Forster appropriates Brahman Hindu for aesthetic and political purposes and in so doing advocates a jurisprudence that does not reduce all experience to mathematical calculation. Forster writes against the Benthamite utilitarianism adopted by most colonial administrators in India. A tough figure to pin down politically, Forster celebrates the individual and personal relations: things that British rule of law seeks to suppress.
Download the full text of the paper from SSRN at the link.

The Right of Publicity In Australia and Singapore

David Tan, National University of Singapore, has published The Fame Monster Reloaded: The Contemporary Celebrity, Cultural Studies and Passing Off at the Singapore Journal of Legal Studies 151 (July 2010). Here is the abstract.

The common law jurisdictions of Australia and Singapore often adopt a conservative approach to recognising newproperty rights, particularly with respect to the human persona, but courts frequently take their cue from developments in the United Kingdom. This article revisits the landmark cases in these jurisdictions which, in declaring that a property right in the goodwill of a celebrity may be protected against unlicensed commercial appropriation, use language evocative of the right of publicity. It examines howthe courts have expanded the passing off action to prevent the unauthorised commercial use of the images of well-known personalities. Finally, by adopting a cultural studies analysis that investigates the semiotic nature of the celebrity sign and its influence on contemporary consumption, this article offers a different perspective to the debate on the protection of image rights.
The full text is not available from SSRN.

The Legal Interpretation of Art

Uladzislau Belavusau, European University Institute (Florence, Italy) and University of California, Berkeley, has published Art, Pornography and Foucauldian Reconstruction of Comparative Law at 17 Maastricht Journal of European and Comparative Law 252 (2010). Here is the abstract.

The article inquires into a delicate and often prudish legal problem of erotic art in the paradigmatic dynamics of national law on obscenity and an ever-growing body of international law of cultural heritage. Pornography is a popular legal construction in distinguishing ‘high art’ from cultural practices, allegedly deprived of artistic value. Yet since when do we know what is the obscene or the pornographic and why do we outlaw certain narratives and visualizations from the realm of freedom of expression? This question remains ultimately vague in national law (predominantly embraced under the heading of boni mores, or ‘public morality’) and even more scattered in contemporary international law. The latter seems to silence somewhat uncomfortable and outdated developments on pornography of the early 20th century. Consequently, this piece is an attempt to trace the genesis and evolution of the legal interpretation of art in the dichotomy of freedom of expression and pornography.
The full text is not available from SSRN.

January 6, 2011

Semiotics, Law, and Copyright

H. Brian Holland, Texas Wesleyan School of Law, is publishing Social Semiotics in the Fair Use Analysis in a forthcoming issue of the Harvard Journal of Law and Technology. Here is the abstract.

This article presents an argument for an expansion of fair use, based not on theories of authorship or rights of autonomy but rather on a theory of the audience linked to social practice. The article asks, in essence, whether audiences determine the meaning, purpose, function, or social benefit of an allegedly infringing work, often regardless of what the work’s creator did or intended. If so, does this matter for the purpose of a fair use analysis based on a claim of transformativeness?

Section I of the article sets the doctrinal groundwork for an exploration of social semiotic theory in the fair use inquiry by exploring a few of the more relevant points of controversy in that analysis, including: commerciality, transformativeness, and cognizable market harm. Section II of the article focuses on transformativeness, a concept at the heart of the first factor inquiry into the purpose and character of a defendant’s use of the copyrighted work. After exploring the prevailing conception of transformativeness, I propose an alternative – grounded in social semiotic theory – in which social value is manifest in the process of meaning-making that occurs as individuals and interpretive communities engage the work. It is in this process of semiosis that copyright’s commitment to the enrichment of society can be best evaluated as a distinct question apart from the creation of new authorial rights. Finally, the pending case of Shepard Fairey v. The Associated Press is used to illustrate how social semiotic theories are applied. Section III of the article looks at how social semiotic theory might be relevant in an analysis of the remaining fair use factors: the nature of the copyrighted work; the amount and substantiality used; and the effect on actual and potential markets. The article concludes that social semiotics is most helpful in terms of the second factor, the nature of the copyrighted work, with only limited application to the remaining factors.
Download the article from SSRN at the link.

January 5, 2011

Shakespeare's Place in the Law School Curriculum

Allen Mendenhall, Auburn University, West Virginia University, Temple University, and Furman University, has published Shakespeare's Place in Law-and-Literature in volume 3 of the Journal of Liberty and Society (2011). Here is the abstract.

Nearly every Anglo-American law school offers a course called Law-and-Literature. Nearly all of these courses assign one or more readings from Shakespeare’s oeuvre. Why study Shakespeare in law school? That is the question at the heart of these courses. Some law professors answer the question in terms of cultivating moral sensitivity, fine-tuning close-reading skills, or practicing interpretive strategies on literary rather than legal texts. Most of these professors insist on an illuminating nexus between two supposedly autonomous disciplines. The history of how Shakespeare became part of the legal canon is more complicated than these often defensive, syllabus-justifying declarations allow. This article examines the history of Shakespeare studies vis-à-vis legal education. It begins with early law-and-literature scholarship, which focused on Shakespeare’s history or biography – speculating as it did about whether Shakespeare was a lawyer or perchance received legal training – and concludes with recent law-and-literature scholarship treating Shakespeare as a source of insight for law students and lawyers alike. I submit that early law-and-literature scholarship on Shakespeare anticipated New Historicist theory and that more recent law-and-literature work, with its turn to presentism, is in lockstep with Shakespeare studies. In law-and-literature classrooms, Shakespeare is more fashionable like a hobby than scholarly like a profession; but law-and-literature scholarship on Shakespeare amounts to high-caliber work based on interdisciplinary research as well as deep engagement with legal and literary texts.

I wrap up this essay with a note about the direction of the university in general and of the law-and-literature movement in particular. I admit that my closing argument, as it were, is tendentious. It raises issues usually raised by confrontational academics and suggests remedies for what William M. Chace has called “the decline of the English Department” or what Harold Bloom has called “Groupthink” in “our obsolete academic institutions, whose long suicide since 1967 continues”. If Chace and Bloom are right about a decline in academic standards – evidence shows that they are at least right about a decline in numbers of English majors – then the fate of literary studies seems grim. Nevertheless, Chace and Bloom overlook the migration of literature professors into American law schools, a phenomenon yet to receive critical attention. Another aspect of this phenomenon is the migration of students from the humanities to professional schools. I personally have known many students who wished to go on to graduate school in the humanities but quite understandably viewed that route as impractical and went to law school instead. A positive result of this trend is that a substantial body of law students is open to the idea of law-and-literature and finds luminaries like George Anastaplo or Stanley Fish more interesting than other law professors. My final comments address the strange exodus of literary scholars into professional schools, which pay more money and arguably provide vaster audiences and readership, more generous funding opportunities, and reduced teaching loads. Perhaps more than other literary disciplines, save for cultural studies, Shakespeare studies has moved into the realm of interdisciplinarity, albeit without large contributions from scholars outside of literature departments. The law-and-literature field would have perished without the expertise of literature professors; likewise, Shakespeare studies, if it continues down the path of politics and cultural criticism, will perish without the expertise of economists, political scientists, and legal scholars, whose mostly non-Marxist perspectives, when pooled with the perspectives of literature professors, might fill out a space for interesting scholarship and redeem the interdisciplinary label. Information-sharing is especially crucial for literature scholars who, in order to examine the history of Shakespeare in American culture, have turned to practices and methods traditionally reserved for other disciplines.
The full text is not available from SSRN.

January 4, 2011

Home Sweet Home

I Bennett Capers, Hofstra University School of Law, has published Home Is Where the Crime Is in volume 109 (2011) of the Michigan Law Review. Here is the abstract.

There is a new vision of home that is beginning to gain ascendance, at least from the point of view of legal actors and doctrine in the criminal justice system. Under this vision, home is not always, or even usually, “sweet.” Under this new vision, the home is not a safe haven, inviolate and inviolable except for, perhaps, a burglar. Under this new vision, the home is a place of violence. And not violence perpetrated by intruders, but by co-habitants. The home, notionally a site of security, a place “safe” from outside intervention, now functions as a place that enables abuse, assault, and rape. It is the exemplary place of coercion. The home, in this re-vision, has metastasized into the scene of the crime. In short, home has become “where the crime is.”

What are we to make of this shift in how the law perceives the home, and how we perceive the home? What are the collateral consequences of this shift? These are the questions Jeannie Suk takes up in her provocative At Home in the Law. This Review assesses Suk’s claims critically, turns to some of the collateral effects of this shift that Suk elides, and switches lens to reveal a larger, more troubling picture.
Download the article from SSRN at the link.

Copying Across Cultures

Madhavi Sunder, University of California, Davis, School of Law, has published Bollywood/Hollywood at 12 Theoretical Inquiries in Law 179 (2011). Here is the abstract.

Free flow of culture is not always fair flow of culture. A recent spate of copyright suits by Hollywood against Bollywood accuses the latter of ruthlessly copying movie themes and scenes from America. But claims of cultural appropriation go far back, and travel in multiple directions. The revered American director, Steven Spielberg, has been accused of copying the idea for E.T. the Extra-Terrestrial from legendary Indian filmmaker Satyajit Ray’s 1962 script, The Alien. Disney’s The Lion King bears striking similarities to Osamu Tezuka’s Japanese anime series, Kimba the White Lion. Neither Ray nor Tezuka’s studio sued the American filmmakers and this Article is by no means an attempt to revive any particular legal case. Rather, this Article considers copyright’s role in promoting free cultural exchange, albeit on fair terms in a global marketplace of ideas marked by sharp differentials in power, wealth, and knowledge.
Download the article from SSRN at the link.

A Meditation on Comic Books, Their History, and Copyright Law

Keith Aoki, University of California, Davis, School of Law, has published Pictures within Pictures, in volume 36 of the Ohio Northern University Law Review (2010). Here is the abstract.

This is a meditation on the creative process, copyright law, and comic book history.
Download the article from SSRN at the link.