February 28, 2011

The Humanities--Why?

The American Conference of Academic Deans and Phi Beta Kappa are co-sponsoring a conference for which the theme is "Are the Humanities Now a Luxury?" The conference, scheduled for November 10-12 in Charleston, SC, has posted its request for proposals at the website here.

Atticus Finch as a Christian Lawyer

Lance McMillian, Atlanta's John Marshall Law School, has published Atticus Finch - Christian? in volume 77 of the Tennessee Law Review (2010). Here is the abstract.

This essay is the third-part of A Dialogue Commemorating the Fiftieth Anniversary of to Kill a Mockingbird's Publication between Professors Lance McMillian and Judy Cornett, featured in the Tennessee Law Review. In this piece, Professor McMillian answers three questions posed to him by Professor Cornett: (1) Is Atticus Finch really a Christian in any meaningful sense?, (2) Is Atticus Finch's Christian faith the “but for” impetus behind his actions?, and (3) Should Atticus Finch be judged a hero at all under today's standards?
Download the article from SSRN at the link.

A "Mad Scientist" For Real? And In a Movie?

The Scientist features Jim Fields' documentary about neurologist Robert White, who died last year. Mr. Fields notes that Dr. White might fall into the class of the "real" "mad scientist," someone whose thoughtful integration of research and imagination led him toward the boundaries of what we now consider commonplace. But he did some unusual things in the lab, too--things we still consider odd, and maybe off-limits, such as grafting one monkey's head onto another body.

Bioethicists Will Gaylin and Dan Callahan, who co-founded bioethics think tank, The Hastings Center, in 1969, remember talk of brain transplantation when organ transplant technology was developing. "It used to be kind of a joke," says Callahan. "If you transplant my brain into somebody else's head, who would that person be? Is a person the brain or the body?"
"Real mad scientists...are not lone wolves like in the movies," says Fields. "They're doing things that are sanctioned in their time and place, in society, that are only considered by later values to be wrong."


While Callahan doubts that White would have been allowed to do this research today, he notes that he likely received approval from a number of organizations in his day. But does that context of permission make his actions ethical? "I don't think you can go back and prejudge generations of people," says Gaylin, "but by the time he was doing his research, there were a significant number of people talking about medical ethics in an advanced form."
So which is it? Was White a researcher outside the boundaries of bioethics or a man doing right by the standards of his time?

February 24, 2011

Terrorism and Armed Conflict

Andrea Bianchi, Graduate Institute of International and Development Studies, has published Terrorism and Armed Conflict: Insights from a Law & Literature Perspective at 24 Leiden Journal of International Law 1 (2011). Here is the abstract.
This article examines some selected issues relating to terrorism and international humanitarian law (IHL): the characterization of the nature of armed conflicts in which armed groups, qualified as ‘terrorist,’ are involved; terrorism as a war crime; and the determination of the status and treatment (including detention) of terrorist suspects apprehended in the course of an armed conflict. The analysis emphasizes the importance of legal categories and legal qualifications of factual situations for the purpose of determining the applicable law as well as the crucial importance of taking societal practice into account when evaluating the state of the law in any given area. The main focus of the article, however, is on providing a few basic insights, drawn from the law & literature movement, on international humanitarian law and terrorism. Short of any epistemological ambition, literature is used as a remainder that the law is not a set of neutral rules, elaborated and applied independently of context and historical background; that the human condition remains central; and that legal regulation cannot be oblivious to it. Finally, mention is made of interpretive techniques, developed in the field of literary studies, that may help establish social consensus on the interpretation of IHL grey areas.

The full text is not available from SSRN.

February 23, 2011

New CBS Comedy Features Yes, More Lawyers

Not enough TV lawyers in your life? Then by all means check out the new CBS comedy Mad Love, which airs Mondays at 8:30 (7:30 Central time). It stars Jason Biggs as Ben and Tyler Lapine as Leo, two young attorneys in the Big City (that's NY), haplessly looking for love. The sitcom's the work of Matt Tarses. Other stars: Sarah Chalke (of "Scrubs") as Ben's new found love Kate and Judy Greer (a frequent guest star on such Chuck Lorre comedies as "Two and a Half Men" and "The Big Bang Theory") as Connie, Kate's roommate, who spectacularly does not get along with Leo. We suspect we know how that relationship will turn out. So far, the show has been amusing and well-acted, but predictable, and the law takes a back seat to the developing romance between Ben and Kate. Episodes already aired available here.

Call for Panelists AALS Section on Law and Humanities

Call for Panelists AALS Section on Law and Humanities

“Excavating and Integrating Law and Humanities in the Core Curriculum” 2012 AALS Annual Meeting January 4-8, 2012 Washington, D.C.

The AALS Section on Law and Humanities will hold a program during the AALS 2012 Annual Meeting in Washington, D.C. with panelists who will share methods of teaching law and humanities perspectives in “core courses” such as property, torts, contracts, corporations, federal income tax, civil procedure, contracts, or criminal law, and others not traditionally understood to include these perspectives.

Many agree that law and humanities perspectives are important vehicles for unpacking the substantive content of the core curriculum, as well as for building and honing key skills necessary for legal practice. Though many acknowledge that these perspectives are vitally important, there is less agreement as to how faculty can successfully implement these perspectives in their classrooms. This program will include a variety of panelists and will explore ways law and humanities perspectives can be used successfully to enrich law school teaching.

To be considered as a panelist, please submit a statement of interest by Friday, March 25, 2011, including a description (2-3 paragraphs is sufficient) of the course that you teach and the methods that you use to excavate and integrate law and humanities perspectives that you would discuss as part of the panel. Please also submit an updated curriculum vitae.

Panelists will be selected by April 11, 2011. Each selected panelist will be required to submit a 4-6 page draft in October 2011, describing their law and humanities teaching technique(s), for use by the moderator. The Section hopes to have these papers published as part of an online mini-symposium sponsored by the California Law Review.

All panelists will be responsible for paying their annual meeting registration fee and travel expenses. Full-time faculty members of AALS member and fee-paid law schools are eligible to submit papers. Foreign, visiting (and not full-time on a different faculty) and adjunct faculty members, graduate students, and fellows are not eligible to submit.

Any inquiries about the Call for Panelists should be submitted to Professor Melissa Murray, University of California, Berkeley, School of Law via electronic mail at mmurray@law.berkeley.edu.

Identifying Scientism

Susan Haack, University of Miami School of Law and Department of Philosophy, has published Six Signs of Scientism (Seis Signos De Cientismo) in Discusiones Filoficas, Ano 11 (No. 15) June 2010. Here is the abstract.

As the English word "scientism" is currently used, it is a trivial verbal truth that scientism-an inappropriately deferential attitude to science-should be avoided. But it is a substantial question when, and why, deference to the sciences in inappropriate or exaggerated. This paper tries to answer that question by articulating "six signs of scientism": the honorific use of "science," etc; using scientific trappings purely decoratively; preoccupation with demarcation; preoccupation with "scientific method"; looking to the sciences for answers beyond their scope; denying the legitimacy or worth of non-scientific (e.g. legal or literary) inquiry, or of writing poetry or making art.
Download the article from SSRN at the link. NB: The text is in Spanish.

Legal Interpretation

George H. Taylor, University of Pittsburgh School of Law, has published Legal Interpretation: The Window of the Text as Transparent, Opaque, or Translucent at 10 Nevada Law Review 700 (Summer 2010). Here is the abstract.

It is a common metaphor that the text is a window onto the world that it depicts. In legal interpretation, the metaphor has been developed in two ways – the legal text as transparent or opaque – and the Article proposes a third – the legal text as translucent. The claim that the legal text is transparent has been associated with more liberal methodological approaches. According to this view (often articulated by critics), the legal text does not markedly delimit meaning. Delimitation comes from the interpreters. By contrast, stress on the opacity of the legal text comes from those who give priority to the text rather than to any separable purpose lying behind the text. Frederick Schauer, for example, argues that rule-following requires treating a rule’s generalization as entrenched and hence opaque. The Article’s emphasis on the legal text as translucent builds on the hermeneutics of Paul Ricoeur and emphasizes the interrelation of text and context. To comprehend a legal text by reference to its context is to appreciate the light that the context brings to the text and renders the thickness and color of the text no longer opaque but translucent. The text is translucent to its context. The context is not outside the text but part of it. Attention to the text without regard for its external context may distort its meaning. The Article exemplifies this perspective by drawing on recent work by Laurence Tribe and Justice Breyer and applies it briefly to recent Supreme Court jurisprudence. The Article frames the attention to the legal text by referencing the debate over the text as transparent, opaque, or translucent in literary and philosophic interpretation.
Download the article from SSRN at the link.

Well, "L": The Green Bag Takes On the NYT

Ross E. Davies, George Mason University School of Law; The Green Bag, is publishing Gray Lady Bowdler: The Continuing Saga of the Crimson Spot in the Green Bag Almanac and Reader 2012. Here is the abstract.

This is a short, true story about the Green Bag versus the New York Times, two periodicals doing their best according to their respective lights to serve their respective readerships. The story is told for the most part through recent email correspondence between, on one side, a variety of Times editors and, on the other side, one Green Bag editor. Reasonable minds might differ about the relative merits of the positions taken and the practices followed by the two periodicals and their spokespeople, but no reasonable person could deny the entertainment value of some of their exchanges. Those exchanges are reproduced in chronological order, starting on the next page. But first, a small dose of background...
Download the article from SSRN at the link.

February 18, 2011

Mixed Juries In Ireland in the Nineteenth Jury

Niamh Howlin, Queen's University Belfast, has published Fenians, Foreigners and Jury Trials in Ireland, 1865-70 iin The Irish Jurist 2011. Here is the abstract.

This paper examines the circumstances which led to the empaneling of a Swiss watchmaker, a French professor and an Italian hatter, along with nine others, to try an American Fenian in Cork in 1865. This was the trial of Captain John McCafferty, a former Confederate soldier who later became an important figure in the Irish nationalist movement. His trial for treason-felony in 1865 is a fascinating example of the use of what was known as a jury de medietate linguae; a mixed jury consisting of half locals and half aliens. It is significant because it appears to be the only recorded use of a mixed jury in Ireland, although interestingly, it attracted very little comment, despite the unusual nature of the tribunal. After a brief history of the origins and development of this unique tribunal, this article will compare the historical use of mixed juries in common law countries. McCafferty’s trial will then be considered in the wider context of the Fenian organisation’s activities in the 1860s, and particularly in light of subsequent Fenian cases where mixed juries were sought.
 Download the article from SSRN at the link.

February 10, 2011

The Higher Moral Law and the Fugitive Slave Act

Steven Lubet, Northwestern University School of Law, has published The Oberlin Fugitive Slave Rescue: A Victory for the Higher Law in volume 13 of North & South (2011). Here is the abstract.

This article tells the story of the Oberlin fugitive slave rescue and the ensuing prosecutions in federal court. The trial of rescuer Charles Langston marked one of the first times that adherence to "higher law" was explicitly raised as a legal defense in an American courtroom. The article is adapted from my book – Fugitive Justice: Runaways, Rescuers, and Slavery on Trial – which tells this story (and several others) in much more detail.
In the fall of 1859, John Price was a fugitive slave living in the abolitionist community of Oberlin, Ohio. He was lured out of town and captured by Kentucky slavehunters, but he was able to raise an alarm. Hundreds of Oberliners – including many students and graduates from the eponymous college – came to his rescue. They chased the slavehunters to nearby Wellington, where they freed John Price by force.
The pro-slavery Buchanan administration could not ignore such a blatant violation of the Fugitive Slave Act, and soon obtained indictments against thirty-seven rescuers, including twelve black men. The ensuing trials would be one of the first times that adherence to the “Higher Law” was raised as an explicit legal defense in a United States court.
Charles Langston – a free black man and the son of a Virginia plantation owner – was brought to trial in Cleveland the following spring. Langston was a militant abolitionist and a leader of Ohio’s African-American community. Although convicted, he shocked the country when he defiantly addressed the court at sentencing. Langston announced that he would proudly continue to violate the Fugitive Slave Act, and he would assert the “God given right to freedom” in the face of any warrant or legal requisition.

Langston’s attorney stunningly also declared himself a “votary of the Higher Law,” thus setting the stage for a courtroom confrontation between morality and legality.
Download the article from SSRN at the link.

Secularism, Religious Thought, and Human Rights

Zachary R. Calo, Valparaiso University School of Law, has published Religion, Human Rights and Post-Secular Legal Theory. Here is the abstract.
This paper proposes that the fundamental challenge for religious legal theory is the question of the secular and, in particular, a certain mode of secular reason that has shaped the idea of law within modernity. The fundamental ambition of modern legal thought was to sever law from a connection to a sacred cosmic and intellectual order. The idea of human rights, at least in its regnant expression, embodies this project most fully in that it has increasingly been defined as a moral tradition that stands over and against religion. This paper, by contrast, argues that the destabilization of secular meaning creates the space, and indeed the necessity, for a pluralist theological turn within the idea of human rights.
Download the paper from SSRN at the link.

The Roman Foundations of the Law of Nations

Benedict Kingsbury, New York University School of Law, has published Introduction: The Roman Foundations of the Law of Nations in The Roman Foundations of the Law of Nations: Alberico Gentili and the Justice of Empire (B. Kingsbury & B. Straumann eds.; Oxford University Press, 2010). Here is the abstract.

Where did the writers of the sixteenth, seventeenth, and early eighteenth centuries seek the legal maxims and methods, the principles governing treaties or embassies or jurisdiction or property, and the broader ideas of justice in the inception, fighting, and conclusion of war, which they built into a law of nations of enduring importance? To a considerable extent, they looked to Roman law, Roman debates about the justifications of Rome’s wars and imperial expansion, and a rich tradition of ius naturae and ius gentium deriving from Greco-Roman and early Christian sources. This book brings together a set of fresh perspectives exploring the significance and implications of the use made of Roman legal concepts, and of Roman just war theory and imperial practice, by early modern European writers who shaped lasting approaches to natural law and the law of nations.
Download the introduction from SSRN at the link.

February 7, 2011

Lincoln's Use of Biblical Imagery

Wilson Ray Huhn, University of Akron Law School, has published A Higher Law: Abraham Lincoln's Use of Biblical Imagery as University of Akron Legal Studies Research Paper No. 11-1. Here is the abstract.

This article describes Lincoln’s use of biblical imagery in seven of his works: the Peoria Address, the House Divided Speech, his Address at Chicago, his Speech at Lewistown, the Word Fitly Spoken fragment, the Gettysburg Address, and the Second Inaugural. Lincoln uses biblical imagery to express the depth of his own conviction, the stature of the founders of this country, the timeless and universal nature of the principles of the Declaration, and the magnitude of our moral obligation to defend those principles. Lincoln persuaded the American people to embrace the standard “all men are created equal” and to make it part of our fundamental law. This goal was formally accomplished as a matter of law in 1868 when the Equal Protection Clause was added to the Constitution as part of the Fourteenth Amendment, but it is approached in fact only through our constant application of this ideal to our society and in our daily lives. The principle of equality is a higher law, but it need not exceed our grasp. As Lincoln called upon us – “let it be as nearly reached as we can.”
Download the paper from SSRN at the link.

Law & Social Inquiry Call For Student Papers

From Law & Social Inquiry

2011 Law & Social Inquiry

Graduate Student Paper Competition

The editors of Law &  Social Inquiry are pleased to announce our annual competition for the best journal-length paper in the field of sociolegal studies written by a graduate or law student. Entries will be accepted starting January 1, 2011 and must be received by March 1, 2011. The author must be a graduate student or law student at the time the paper was written and when submitted.

LSI invites direct submissions from graduate and law students and nominations of student work from faculty. Faculty nominations should be accompanied by the paper in question, a short description of the nominated paper, and contact details for the student. The winning paper will be published in Law & Social Inquiry and the author(s) will receive a total cash prize of $500 (US). Submissions will be judged by the editors. The winning submission will be sent to selected scholars for advisory reviews to aid with revisions prior to publication.

Law & Social Inquiry publishes empirical and theoretical studies of sociolegal processes from a variety of disciplinary perspectives.

Please send your best work in Microsoft Word or as a PDF to: lsi-abf@abfn.org. Please indicate (1) your intention is to be considered for the prize competition; (2) confirm your graduate student status; and (3) that the paper is a sole submission to Law & Social Inquiry, meaning that you have not submitted it to other journals for potential publication. Submission is limited to one paper per student; articles may not be altered or resubmitted with corrections once it has been accepted by our office.

Submissions must include a title page with a complete mailing address, e-mail address, and phone number(s). The second page should include a 100-150 (maximum) word abstract. Beginning on the third page, all pages should be paginated. Text, footnotes, endnotes, and references should be double-spaced, in Times New Roman 12 font, with 1.5” margins on all sides with no headers or footers. Properly formatted, submissions must be no more than 60 manuscript pages.

For further information go to www.blackwellpublishing.com/LSI, or e-mail

lsi-abf@abfn.org, or call (312) 988-6517.

February 2, 2011

Defective Detection

NPR reports on what coroners' offices really do, and might fail to do. It's not like TV.

February 1, 2011

Hollywood and Ethnicity on Film

Tung Yin, Lewis & Clark Law School, has published Through a Screen Darkly: Hollywood as a Measure of Discrimination Against Arabs and Muslims, in volume 2 of the Duke Forum for Law and Social Change (2010), which was presented at a symposium at Duke Law School on "The New Face of Discrimination: Muslim in America." Here is the abstract.

In this essay, which was prepared for the Duke Forum for Law and Social Change’s “The New Face of Discrimination: Muslim in America,” I compare Hollywood’s depiction of Arabs and Muslims in terrorism thrillers before and after the 9/11 attacks. The goal of this comparison is to see whether the increased awareness of Arab and Muslim culture since 9/11 has changed the way that Hollywood depicts Arab and Muslim characters in such television shows and movies. I chose Hollywood as the focus because popular culture both reflects and shapes public attitudes. I reach three conclusions: (1) although 9/11 led to an increase in Arab characters, Arab-American actors have not benefited, perhaps an indication of the problematic depictions of such characters; (2) Hollywood has moved toward creating Arab-American counterterrorism agents, but these characters typically play minor roles that understate the key roles played by some (of the few) real-life Arab-American agents; and (3) the new “sleeper cell” characters – seemingly normal Arab-American characters who secretly plan and execute terrorism plots – who are a post-9/11 development, for the most part overstate the nature of the Arab-Americans who have been prosecuted for terrorism-related offenses in this country.
Download the article from SSRN at the link.

Jack Bauer Syndrome

Tung Yin, Lewis and Clark Law School, has published Jack Bauer Syndrome: Hollywood's Depiction of National Security Law, at 17 S. Cal. Interdisc. L.J. 279 (2008), also presented at the 2008 AALS Section on Law and Humanities panel. Here is the abstract.

In this Article, which was presented at the Law & Humanities Section Panel at the 2008 Annual AALS Conference, I examine the way that the Fox television series "24" portrays two issues relevant to national security law: the use of torture to extract information in order to stop an imminent terrorist attack, and the depiction of Arabs as villains (and non-villains) with the concomitant impact on racial profiling and other stereotyping of Arab-Americans and Arabs. I conclude that the depiction of torture is narratively stacked in favor of government agent Jack Bauer. I also conclude that "24" attempts to balance its portrayal so that not all villains are Arabs, and not all Arabs are villains. However, I point out points of improvement in this area.
Download the article from SSRN at the link.

Online Education Humanities Database

Nice mention of the Law and Humanities blog at the Online Education Humanities Database.

Hamlet's Hung Jury

After a notoriously long delay in the proceedings, Prince Hamlet's trial for the murder of Polonius finally got underway in Los Angeles, California (a change of venue from Elsinore was granted--tainted jury pool there). The defense pled insanity, the prosecution argued homicide, and the result after expert testimony and a lot of wrangling was 10 to 2 for conviction. The jurors included actors Helen Hunt and Tom Irwin. Arguing for the prosecution were Deputy District Attorney Danette Meyers and attorney Nathan J. Hochman, for the defense, Blair Berk and Richard J. Hersch. Associate Supreme Court Justice Anthony Kennedy presided over the proceedings, held at the University of Southern California School of Law. More here.

Where Is Cora Crippen?

Dr. Hawley Crippen's wife Cora disappeared sometime in February 1910. A few months later, he and his mistress, Ethel Le Neve, were arrested and stood trial for her murder. Miss Le Neve was acquitted, but Dr. Crippen was found guilty, in one of the most sensational trials Britain had seen. In November, still protesting his innocence of the crime, he was hanged.

For decades few have doubted Dr. Crippen's guilt. Now, forensic investigators from Michigan State University's School of Criminal Justice have determined that the remains discovered in Dr. Hawley Crippen's coal cellar, long presumed to be those of his missing wife Cora, are not hers. They aren't even female.

Based on the genealogical and molecular data presented here, only
one conclusion can be drawn: the remains obtained from the
Crippen’s cellar at 39 Hilldrop Crescent, London, in 1910 were not
those of Dr. Crippen’s wife. It is beyond the scope of this article to
speculate on whose they were (clearly they were human) or how
they came to be in the Crippen’s coal cellar. It must be noted that
the forensic tools available today are far advanced from those
available in 1910, so it is perhaps not surprising that new (and conflicting) results were obtained, as still  happens. Forensic
science in 1910 was in its infancy, and scientists at the time had to rely on the tools and techniques available to them. DNA testing of
remains, such as those found in the Crippen’s (sic) cellar, would today be virtually automatic, producing far more objective results for personal identification than interpretation of small physical abnormalities in
highly decayed flesh. Finally, in light of the data presented here, we can briefly look
at the outcome of Dr. Crippen’s investigation and trial. As noted earlier, Dr. Crippen proclaimed his innocence throughout, stating before his hanging that ‘‘I insist I am innocent…some day evidence
will be discovered to prove it…’’ The heinous crime for which Dr. Crippen was hanged, which intrigued much of the world in 1910, was illogical in many ways. If Dr. Crippen, described as very mild
mannered, had murdered his wife, why did he openly flaunt her absence by selling many of her possessions, and taking his mistress out socially where she sometimes wore his missing wife’s jewelry? Even more perplexing is the manner in which the body was discarded. If a murderer was successful in killing his victim unwitnessed, then dismembering and disposing of the head, arms, legs, and every bone, why go through the ordeal of carefully sectioning out the victim’s viscera (performed in a single piece with reported surgical skill), and burying these soft tissues, excluding anything that could identify sex, in one’s very own basement, along with a small amount of hair and a pajama top? It is these acts (and others) that have long led historical investigators to wonder whether Dr. Crippen actually did murder his wife and whether the cellar remains were hers.  The judge, Lord Richard Alverston, condemned Dr. Crippen to die by hanging. Before the jury’s deliberation, he stated regarding the remains: ‘‘Gentlemen, I think I may pass for the purpose of
your consideration from the question of whether it was a man or woman. Of course, if it was a man, again the defendant is entitled to walk out of that dock.’’ Sexing the remains was impossible at the time, as were other purely objective methods for their identification.  We are thus left with an instance of historical misidentification. Based on the genealogical and genetic investigations presented here, the remains found in Dr. Crippen’s coal cellar were not only not Cora Crippen’s, they were not even female.

Writers, including Patricia Highsmith ("The False Inspector Dew") have used the Crippen story as the basis for intriguing speculation and this new information will fuel the fire. Whose remains were buried in Dr. Crippen's cellar and why? And where is Cora?