Three Law-Related Dramas Win Peabody Awards

CBS' legal drama The Good Wife, FX's Justified (based on an Elmore Leonard character), and Sherlock: A Study in Pink (an updating of Sir Arthur Conan Doyle's Sherlock Holmes), which ran on many PBS stations this year, have won Peabody Awards. Here's a link to the Peabody Awards home page, which lists all winners, including Rupert Gould's version of Macbeth, starring Patrick Stewart, aired on PBS, Spike Lee's "If God Is Willing and da Creek Don't Rise," aired on HBO, PBS/POV's look back at Daniel Ellsberg, "The Most Dangerous Man in America," and WILL-TV (Champaign, Illinois)'s "The Lord Is Not On Trial Here Today," an examination of the separation of church and state.

BBC Drama "Silk" Comes Back To UK Primetime In 2012

The BBC1 series Silk will return to the airwaves next year. It stars Maxine Peake as barrister Martha Costello. Read an interview with writer Peter Moffatt about why law makes such good drama here. Lucky UK viewers can watch the first season of Silk online or on DVD.

Here's what Sarah Palin (not, not that one, this one's a barrister) says about the show. Here, another review by James Walton.

Legal Philosophy in the Common Law World

Gerald J. Postema, University of North Carolina, Philosophy and Law, has published Legal Philosophy in the Twentieth Century: The Common Law World, as Treatise of Legal Philosophy and General Jurisprudence volume 11, Autumn 2011. Here is the abstract.

This above-titled monograph tells a critical history of Anglophone general jurisprudence and legal philosophy in the twentieth century as a tale of two Boston lectures, separated by sixty years, and their respective legacies: Holmes’s “Path of Law” (1897) and Hart’s Holmes Lecture “Positivism and the Separation of Law and Morals” (1958). The text here consists of the Preface and Table of Contents of this soon-to-be-published work.

Download the text from SSRN at the link.

Coal Mining, Up Close

The Harvard University Press Blog notes that Spike TV premiered a new reality series, Coal, March 30 at 9 p.m. (8 Central time). The first fourteen minutes of the first episode is available for online viewing. It offers a look at the work involved in drilling for and removing the resource from the earth, and the dangers that miners face every day. The miners who appear on Coal apparently do so without pay from the documentarians.

The TNT television series Leverage addressed the dangers of coal mining and problems with regulation in one episode, "The Underground Job," last year (commentary here). Steven Fesenmaier of WV Film lists movies about coal mining and miners here. Some films, like Matewan (1987), have a definite political/legal message.

The State of Literature: Was It Under Siege? Is It Still?

From NPR: one story about three books that made it past Soviet censors and another consoling us that literature and language will survive in spite of individual tastes and governmental policies.

Some New Books From Routledge

Some new titles of interest from Routledge (abstracts from the publisher's catalog)

Jacques de Ville, Jacques Derrida: Law as Absolute Hospitality (due August 2011).

Jacques Derrida: Law as Absolute Hospitality presents a comprehensive account and understanding of Derrida’s approach to law and justice. Through a detailed reading of Derrida’s texts, Jacques de Ville contends that it is only by way of Derrida's deconstruction of the metaphysics of presence, and specifically in relation to the texts of Husserl, Levinas, Freud and Heidegger - that the reasoning behind his elusive works on law and justice can be grasped. Through detailed readings of texts such as To speculate – on Freud, Adieu, Declarations of Independence, Before the Law, Cogito and the history of madness, Given Time, Force of Law and Specters of Marx, De Ville contends that there is a continuity in Derrida’s thinking, and rejects the idea of an ‘ethical turn’. Derrida is shown to be neither a postmodernist nor a political liberal, but a radical revolutionary. De Ville also controversially contends that justice in Derrida’s thinking must be radically distinguished from Levinas’s reflections on ‘the other’. It is the notion of absolute hospitality - which Derrida derives from Levinas, but radically transforms - that provides the basis of this argument. Justice must on De Ville’s reading be understood in terms of a demand of absolute hospitality which is imposed on both the individual and the collective subject. A much needed account of Derrida's influential approach to law, Jacques Derrida: Law as Absolute Hospitality will be an invaluable resource for those with an interest in legal theory, and for those with an interest in the ethics and politics of deconstruction.

Law and Art: Ethics, Aesthetics, Justice (Ed. Oren Ben-Dor). (published March 2011).

The contributions to Law and Art address the interaction between law, justice, the ethical and the aesthetic. The exercise of the legal role and the scholarly understanding of legal texts were classically defined as ars iuris – an art of law – which drew on the panoply of humanist disciplines, from philology to fine art. That tradition has fallen by the wayside, particularly in the wake of modernism. But, as this book demonstrates, a
consideration of the relationship between law and art can still bring jurisprudence, and particularly critical
jurisprudence, to life. In its attention to the inexpressible, art can contribute to the liberation of legal doctrine from its own self-imposed limits. It can inform the ethics of a legal theory that is concerned to address how theoretical abstractions and concrete oppressions overlook the singularity and spontaneity to which art attests. The contributors to this volume – and their engagement with the full range of ’the arts’ – seek, therefore, to disturb and to supplement conventional accounts of justice: raising the difficulty, but also the promise, of that surplus which art reveals: of life over legal formalisation.

Deidre Pribram, Emotions, Genre, and Justice in Film and Television (published March, 2011).

Through their cultural meanings and uses, emotions enable social identities to be created and contested, to
become fixed or alter. Popular narratives often take on emotional significance, aiding groups of people in
recognizing or expressing what they feel and who they are. This book focuses on the justice genres – the generic network of film and television programs that are concerned with crime, law, and social order – to examine how fictional police, detective, and legal stories participate in collectively realized conceptions of emotion. A range of films (Crash, Man on Fire) and television series (Cold Case, Cagney and Lacey) serve as case studies to explore contemporarily relevant representations of anger, fear, loss and consolation, and compassion.

Michael Salter, Carl Schmitt: Law as Politics, Ideology and Strategic Myth (due October 2011).

There has been and continues to be a remarkable revival in academic interest in Carl Schmitt's thought within politics, but this is the first book to address his thought from an explicitly legal theoretical perspective. Transcending the prevailing one-sided and purely historical focus on Schmitt’s significance for debates that took place in the Weimar Republic 1919-1933, this book addresses the actual and potential significance of Schmitt's thought for debates within contemporary Anglo-American legal theory that have emerged during the past three decades. These include: the critique of legal positivism; the ‘indeterminacy thesis’ of American Critical Legal Studies; the reinterpretation of law as a form of strategically disguised politics by the contemporary sociology of law movement; the emphasis upon law as implicated in, and as aspect of, a network of mobile yet dispersed power relationships irreducible to a central state; the legal theoretical critique of human rights and liberalism more generally; Schmitt’s critique of innovations within international criminal law: the inhumanity and hypocrisy of supposedly universalistic ‘crimes against humanity’; and the retrospective criminalisation of ‘aggressive war’ as part of the Nuremberg trials process. In these respects, therefore, Michael Salter provides an overview and assessment of Schmitt's thought, as well as a consideration of its relevance for contemporary legal thought.

Veronique Voruz, Foucault and Criminology: An Introduction (due April, 2011).

[p]rovides an introduction to Michel Foucault, written from the perspective of criminology’s engagement with his work. Foucault’s writing has become a central reference in theoretical and sociological criminology generally and, more specifically, in what Jock Young has called ‘control theory’. The main purpose of this book is to offer a better, clearer and deeper understanding of ongoing criminological debates to both undergraduate and research students in criminology by outlining the theoretical framework which criminologists have taken from Foucault. Its second purpose is to trace the evolution of Foucault’s political project and to counterpose the thrust of his elaborations to the more pedestrian applications of his critical analyses of the present in the field of criminology. In these respects, Foucault and Criminology offers a ’map’ to guide students and practitioners of criminology: both through Foucault’s own writings and those of contemporary criminologists whose work may be characterised as Foucauldian. In so doing, it also pursues the argument that Foucault’s historical and theoretical analyses of discipline, power and governance must be understood in the context of his overall project if criminologists are to avoid reducing Foucault’s radicality, and to reclaim the critical, and resistive, potential of his work.

Bob Dylan and the Law: Take It From the Top

The blog Nightly Song has an interesting post on Bob Dylan and Law, seeming to take its cue from the Bob Dylan and Law conference post here several days ago). The poster notes and comments on several Dylan songs that discuss, lament or rail against the law and justice. Several commenters also chime in with their takes on Dylan songs.

Rhetoric and Revolution

Fernando Estrada, Universidad Externado de Colombia, Facultadad de Finanzas, Gobierno y Relaciones Internacionales, and Boris Salazar, Universidad del Valle have published Brains that Make Revolutions. Here is the abstract.

This paper work assesses the key aspects of a framework for research on revolutions. Our approach includes a heuristic based on an idea suggested by Marx in the 18th Brumaire of Louis Bonaparte: "The tradition of all dead generations weighs like a nightmare on the brain of the living." From this maxim of Marx advance on conventional interpretations by postulating that the language and metaphors are a challenge in several respects: (1) The brain is a physical basis for understanding key political revolutions, (2) advances in neuroscience and language (Lakoff/Johnson/Narayanan) have allowed the reconstruction of conceptual frameworks in various fields, including philosophy, mathematics and politics (3) The language expressed in songs, text, flags, emblems, illustrations, slogans, speeches and rumors is key to represent and demonstrate loyalty to the idea of revolution and, more crucially, to "make" the revolution, (4) Metaphors are a powerful rational action in revolutionary processes. One interpretation of these can contribute to decipher, for example, how the brain are activated in neural systems that link past and present, how to operate the symbolic frameworks of language to influence political opinion, how metaphors interact with processes artificial simulation or how metaphors evolve in a revolution from simple metaphors.

Download the paper from SSRN at the link.

The CSA's Legal History

G. Edward White, University of Virginia School of Law, has published Recovering the Legal History of the Confederacy as Virginia Public Law and Legal Theory Research Paper No. 2011-11. Here is the abstract.

Although the government of the Confederate States of America has been formally treated as a legal nullity since 1878, from February, 1861 to April, 1865 the Confederacy was a real government, with a Constitution, a Congress, district courts, and administrative offices. This Article seeks to recover the legal order of the Confederacy in its robust state, before the prospect of its obliteration came to pass.

The Article explores the question why certain southern states would have considered seceding from the United States, and forming a separate nation, in late 1860 and early 1861. It then turns to the legal order of the Confederacy that was erected after secession. If focuses on two characteristics of that legal order: its architecture, including the drafting of the Confederate Constitution, the establishment of Confederate district courts, and the failure of the Confederate Congress to organize a Supreme Court for the Confederacy; and the central legal issues with which the Confederate government was preoccupied. The Article concludes that in the minds of contemporaries, the outcome of the Civil War and the dissolution of the Confederacy that accompanied it represented a transformative phase in American history, in which the way of life that the Confederacy symbolized was confined to oblivion.

Download the paper from SSRN at the link.

UCLA Conference On Pedro Almodovoar

UCLA's New Center for Psychoanalysis is hosting a conference devoted to the films of Pedro Almodovor, Mirrors of the Heart: The Films of Pedro Almodovar. It takes place April 16. Says coordinator Dr. Thomas Brod, "These films are like dreams...There's anxiety in small measures, and you're always in identification with the characters, no matter what they're doing. It's open to all sorts of possibilities. The visual qualities are so exciting, and there's plenty to chew on psychoanalytically. So we like to have psychoanalysts from many different kinds of theoretical perspectives discussing it."

While the experts at this conference don't seem to have the intersection of psychoanalysis and law directly in their sights, I would think that that intersection would be interesting to examine, particularly considering Mr. Almodovor's subjects. Notes another speaker, Dr. Sandra E. Fenster, at the upcoming conference, "Voyeurism, blackmail, unconscious fantasy, early relationships that persist in an adult's mind -- his films really capture that." She will be discussing the film Broken Embraces (2009) "to illustrate obsessive love triangles and jealous revenge."


Last year's conference centered on Charlie Kaufman (Being John Malkovich, Eternal Sunshine of the Spotless Mind).

Garrow the Lawyer

The first season of Garrow's Law, the popular BBC series based on the life of eighteenth century barrister William Garrow, is now available in the U.S. U.K. fans can obtain both season 1 and season 2.

More about lawyer Garrow's brilliant career here in an article from the Daily Mail, which notes,

Garrow was the Robin Hood of the courtroom - a poor boy who had worked his way up and was now determined that the penniless, the ignorant and the weak would no longer be tried by corrupt officials and framed for crimes they did not commit. It was Garrow who coined the phrase 'innocent until proven guilty'. But the extraordinary story of the young barrister, who became the celebrity of his day, might have been confined to the annals of history had it not been for the publication of Old Bailey trials from 1674 to 1913. When these transcripts were put online for the first time in 2008, dozens of television production companies fell upon them, scouring the court reports to find possible dramatic spin-offs. It was researchers for TwentyTwenty Television who came across Garrow's incredible courtroom performances, and spotted a potential hero from the past who could be immortalised in a television drama. The BBC eagerly agreed, and the project was handed to 51-year-old Tony Marchant, the award-winning writer behind Holding On and The Mark Of Cain.

Clive Anderson of the Telegraph discusses Garrow here. Here's a link to the Garrow Society. Also of interest: The Old Bailey Online, an immense project which allows access to information about nearly 200,000 trial held at the criminal court. John Hostetler and Richard Braby have written a biography of William Garrow, Sir William Garrow: His Life, Times, and Fight For Justice (Waterside Press, 2009).

A New Blog From Osgoode Law School

Kate Sutherland of Osgoode Law School has launched a new blog, law.arts.culture. Below, the welcome post.

Welcome to law.arts.culture, a blog devoted to exploration of the intersection of law and the arts. I’m blogging solo for the moment which is apt to tilt the blog in a literary direction given that much of my research and teaching is in the field of law and literature, and that I’m a fiction writer besides. But I’m in the process of recruiting a team of bloggers—Osgoode colleagues, students, and alumni—whose diversity of interests and expertise will soon broaden the focus to include music, film, theatre, visual art, and more. Please visit often, and join in the conversation!

Professor Sutherland has another life, as Kate Sutherland, author of  Summer Reading, which won the 1995 Saskatchewan Book Award for Best First Book, and of Kate's Book Blog, at which she blogs about numerous things, including the intersection of law and literature.

Iurisdictio-lex Malacitana: An Interesting Law and Humanities Blog

José Calvo González, Professor of Philosophy of Law, University of Malaga, writes the blog Iurisdictio-lex Malacitana in French, Spanish, and English (there might be a few more languages in there) on the intersections of law, the arts, philosophy, and narrative. Professor Calvo's most recent work is a book on Tolstoy and the law.

According to the Encyclopedic Dictionary of Roman Law, the Lex Malacitana, together with the Lex Salpensana, was found on bronze tablets in Spain, near Malaga. The Lex Malacitana contains information about "municipal assemblies, candidates in elections and voting, the adminsitration of municipal funds, tax-farming, fines, and the like." See Adolf Berger, Encyclopedia Dictionary of Roman Law, Transactions of the American Philosophical Society, vol. 43, part 2, n.s. (1953) at 559.

Bob Dylan and the Law

Fordham University is hosting a conference on Bob Dylan and the Law.

Bob Dylan and the Law


Fordham Law School

April 4-5, 2011

Co-Sponsored by the Louis Stein Center for Law and Ethics, Touro Law School and the Fordham Urban Law Journal

Free and Open to the Public

April 4th McNally Amphitheater

6:00 PM: Welcome – Professor Bruce A. Green, Fordham Law School

Panel Discussion

Moderator: Corny O’Connell, Fordham Law Graduate and DJ with WFUV


Panelists:

Professor David Hajdu, Columbia University Graduate School of Journalism

Professor Alex Long, University of Tennessee College of Law

Professor Abbe Smith, Georgetown Law School

7:00 PM: Performance of “The Lonesome Death of Hattie Carroll” and other Bob Dylan songs by The Kennedys


The academic portion of the conference will take place on April 5th and is by invitation only.


Contact: Jessi Tamayo

Telephone: 212-636-6988

Email: jtamayo@law.fordham.edu

For more on the law in Bob Dylan's work see the works below (not an exhaustive bibliography).

Idealawg: The Jurisprudence of Bob Dylan

Long, Alex B., [Insert Song Lyrics Here]: The Uses and Misuses of Popular Music Lyrics In Legal Writing (published in volume 64, Washington and Lee Law Review (2007)). Hat tip to Legal Blog Watch

Chicago Comes To Neuilly

Noted feminist critic Hélène Cixous takes on the rhetoric of French president Nicolas Sarkozy in Nicolas Sarkozy, the murderer of the Princess of Cleves, an essay written for The Guardian. She says in part,

To set an example he, the smooth talker, would "first of all shed his hang-ups about theFrench language". Let's get rid of this weight, of these manners. Style? Grammar? All in the past! The French language? Those centuries of literature, these treasures of humanity? What's the use? Do you need a fine turn of phrase to be president of the republic? To sway the people? A good kick up the arse, quick and cheap. But language and its inexhaustible resources, its quaintnesses – it empowers speech, carries thought. Like I said, the French people, they don't need to think no more, says the smooth talker. I'm making your lives simpler, look: "Work more to earn more." Ain't that beautiful? As good as Racine, La Fontaine or Hugo. Henceforth (now that's a word we'll chuck out), we'll have less words, more dosh. People of France, don't bother; I am the Law, take it from me.

All of a sudden France is owned by a man possessed, an outlaw; it's like Chicago's come to Neuilly. One no longer has talks or discussions, one lightens the conversation with gunshots, punches and kicks. The sovereign lashes out. He is now separated from the French language, in a thunderous divorce. You've got to see what he does to language. He mauls it, he beats it, he pummels it, he dismembers it. Pushing syncope to the limit, he swallows half the syllables and he spits the rest in his opponent's face. He imposes his idiolect on the world. Only he "speaks" this idiom; only stand-up comedians imitate it. Language gets a hammering from him. Upon its ruins he proclaims the disgrace of culture and the reign of ignorance.

 

 
Ms. Cixous is A.D. White Professor at Large, Cornell University. Among her most famous works is Le Rire de la Meduse (The Laughter of the Medusa), which has been translated into many languages.


 
President Sarkozy holds a degree in private law and the DEA in Business Law from the Université Paris X Nanterre. He also studied at the prestigious Institut d'Études Politiques de Paris (Sciences Po) but left before earning a degree.  He passed the bar and practiced as an attorney before entering politics.

Deadline Approaching For Harper Lee Prize for Legal Fiction

TUSCALOOSA, Ala. – The deadline for authors and publishers to enter a novel to win the Harper Lee Prize for Legal Fiction is April 8. The ABA Journal and The University of Alabama School of Law created the prize to celebrate the 50th anniversary of “To Kill a Mockingbird,” and to honor former Alabama law student Harper Lee for the role model she created.

The prize will be given annually to a book-length work of fiction that best exemplifies the role of lawyers in society, and their power to effect change. Only works first published in 2010 qualify. Completed entry forms must be submitted by the publisher prior to April 8. There is no entry fee.

Members of the Harper Lee Prize Selection Committee, who are responsible for choosing this year’s winner, are:

• Best-selling author David Baldacci

• Morris Dees, co-founder, Southern Poverty Law Center

• Best-selling crime novelist and former prosecutor Linda Fairstein

• Robert J. Grey Jr., partner, Hunton & Williams, past president of the American Bar Association

• CNN Senior Analyst Jeffrey Toobin

Visit www.HarperLeePrize.org for more information or to download an entry form.

The University of Alabama, a student-centered research university, is experiencing significant growth in both enrollment and academic quality. This growth, which is positively impacting the campus and the state's economy, is in keeping with UA's vision to be the university of choice for the best and brightest students. UA, the state's flagship university, is an academic community united in its commitment to enhancing the quality of life for all Alabamians.

CONTACT: Rebecca Walden, UA School of Law, 205/348-5195, rwalden@law.ua.edu or Allen Pusey, ABA Journal, 312/988-6214, Allen.Pusey@americanbar.org

Language and Evidence of Race Discrimination

Dawn D. Bennett-Alexander, University of Georgia, has published The Use of the Term 'Boy' as Evidence of Race Discrimination: Apparently the 11th Circuit Didn't Get the Memo? Here is the abstract.

In an unusual and interesting case, the 11th Circuit decision was appealed to the U.S. Supreme Court, the Supreme Court rendered a decision remanding the case with guidance, and upon remand, the 11th Circuit virtually ignored the Court's guidance and went its own way. The Supreme Court determined that the term "boy," when used in referring to an adult African American male, can, under certain circumstances, be evidence of race discrimination. Despite the evidence, the 11th Circuit on remand did not find such circumstances to be present in this case. The decision is not only peculiar in its decision to give only lip service to the Supreme Court's guidance, but also in its staunch refusal to recognize the vestiges of the stark historical realities of the three southern states within the circuit.

Download the paper from SSRN at the link.

Charles Darwin's Grandfather and Epigenetics

Andrew Ellington's essay in The Scientist on Erasmus Darwin's influence. Says Dr. Ellington, a chemistry prof at the University of Texas, Austin, "Erasmus believed that environmental influences, in particular the “Imagination” of the parents, greatly influenced the phenotype of the child. How very pre-Victorian (and post-). Erasmus anticipated Charles in many ways, but surprising results in the field of epigenetics—heritable (and reversible) changes in gene expression—suggest that he may have been very far ahead of his time indeed."

Discussing the current paradigm shift in theories of how evolution works, Dr. Ellington notes, "We can expect that epigenetics will be held up as the forerunner of that bastard child of Creationism, Intelligent Design. Dribs and drabs of this are already appearing on the Interwebs, but it may soon come to a school board near you. Second, the notion that environmental tags are embedded in our genome within a human time frame has got to be one of the best things to happen to tort law in a long time. DNA typing has led to the conviction of the guilty and the freeing of the innocent. Epigenetic typing may now lead to expert testimony regarding the presymptomatic impact of environmental disasters on susceptible populations. This may seem fanciful, but where there are moneyed interests (on either side), the science will inevitably follow."

The Lincoln Lawyer

To mark the release Matthew McConaughey's newest film, The Lincoln Lawyer, (based on a Michael Connelly novel), which debuted March 18, MSNBC.com devotes a web gallery to "some of the greatest lawyer movies of all time."

The Difficulties of Judging

Peter Tiersman, Loyola Law School, Los Angeles, is publishing The Rule of Text: Is it Possible to Govern Using (Only) Statutes? in the NYU Journal of Law & Liberty. Here is the abstract.

This essay explores whether it is possible to govern solely by means of written text, with little or no interpretive discretion allowed to judges. The rule of text, as we might refer to this concept, appears to be a goal that textualist judges are hoping to achieve. The essay first reviews the attractions of written law, which came into being not long after writing was invented. Yet it was only in the late eighteenth and early nineteenth centuries that rulers like Frederick the Great of Prussia and later the French revolutionaries tried to govern their nations by means of comprehensive codes of law, which judges were forbidden to interpret. Those efforts to implement a pure form of the rule of text largely failed. Next, we consider several U.S. Supreme Court cases that involved interpretive questions. Could the problems have been avoided by more careful drafting? I conclude that mistakes and ambiguities can in principle be prevented at the drafting stage or be solved by means of amendment after they are discovered, but that vagueness is a far more difficult problem. To the extent that the rule of text demands that judges not interpret, they would have to refer statutory uncertainties to the legislature. Both the Prussians and the French had a procedure of this kind, sometimes known as référé legislatif. Asking the legislature to interpret statutes ultimately proved impractical. Although to some extent it violates the separation of powers, there seems to be no feasible alternative to giving judges the authority to resolve the uncertainties that inevitably arise in written text.

Download the article from SSRN at the link.

Stanley Fish On "The Fugitive"

Jenny Diski reviews Stanley Fish's new book The Fugitive in Flight: Faith, Liberalism and Law in a Classic TV Show (University of Pennsylvania Press, 2010) in the London Review of Books here.

Seasons 1 and 2 of The Fugitive, starring David Janssen, William Conrad, and Barry Morse, is available on DVD. Harrison Ford and Tommy Lee Jones starred in the 1993 movie version; Jones reprised his U.S. Marshal role (Samuel Gerard) in the film U. S. Marshals (1998). Wesley Snipes and Robert Downey, Jr. co-starred.

Law In Context

Reza Banakar, University of Westminster School of Law, has published Having One’s Cake and Eating It: The Paradox of Contextualisation in Socio-Legal Research in the International Journal of Law in Context (2011). Here is the abstract.

In Law in Modern Society, Denis Galligan argues that adopting a social scientific perspective, which describes and analyses the law in extra-legal terms, can easily entail losing sight of the law as a distinct social formation. To avoid this pitfall, socio-legal research should contextualise those features of the legal system which are relevant to the actions of citizens and officials of the law. This essay argues that since the “relevant” features described by Galligan are, ultimately, related to legal rules, his approach amounts to a top-down method of contextualising the impact of the law on society and as such loses sight of law’s fluidity and societal embeddedness. Using Galligan’s methodology as its backdrop, this essay sketches the contours of three ideal typical approaches to the contextualisation of law. The first approach examines how social institutions absorb law within their existing networks of rules and relations; the second reverses law’s method of dislodging actions from their socio-historical context; and the third uncovers the socio-cultural and historical embeddedness of the legal system. This paper concludes by arguing that these three approaches reverse the de-contextualising effects of modern Western law in different ways and degrees. Scholars who employ the second and the third approaches often do so as part of their search for alternative forms of law and legality. What is identified by Galligan as losing sight of the distinctiveness of the law should, in their case, be explored in light of the ongoing struggle for law, rather than as the failure of social sciences to account for the specificity of positive law.

Download the article from SSRN at the link.

The Law In Haiku

Fun for a Friday: Supreme Court Haiku, a blog devoted to, well, the high court's pronouncements transformed into that elegant poetic form,  the 17 syllable poem called the haiku. But other haiku include those devoted to the Bill of Rights (the Ninth Amendment: Enumeration/Not construed to disparage/Rights people retain/), sitting and past Justices, those devoted to cases, and other blogs (with haiku describing them).

When the blogger, Keith Jaasma, responds to people who ask why he writes haiku by saying,

Some ask: Why haiku?
Why seventeen syllables?
No time for real blog

I would note that writing a good haiku can take as much time as (or more than) writing a good blog post.

On his disclaimer page Mr. Jaasma adds,

As should be quite clear
Haikus aren't legal advice
Consult a lawyer

Supreme Court Haiku
Not affiliated with
Real Supreme Court (duh)

 
Haiku has many, many rules to follow; the rules in Japanese are different from those in English. This article from the Times of India notes that many Japanese are finding solace from the recent earthquake and tsunami and continuing devastation by writing haiku to express their pain. For more about haiku, follow this link to the webpages of the Haiku Society of America.



Thanks to Gordon Firemark for the tweet.

Using Law

Jamal Greene, Columbia University Law School, is publishing The Anticanon in the Harvard Law Review. Here is the abstract.

Argument from the “anticanon,” the set of cases whose central propositions all legitimate decisions must refute, has become a persistent but curious feature of American constitutional law. These cases, Dred Scott v. Sandford, Plessy v. Ferguson, Lochner v. New York, and Korematsu v. United States, are consistently cited in Supreme Court opinions, in constitutional law casebooks, and at confirmation hearings as prime examples of weak constitutional analysis. Upon reflection, however, anticanonical cases do not involve unusually bad reasoning, nor are they uniquely morally repugnant. Rather, these cases are held out as examples for reasons external to conventional constitutional argument. This Article substantiates that claim and explores those reasons. I argue that anticanonical cases achieve their status through historical happenstance, and that their status is reaffirmed as subsequent interpretive communities avail themselves of the rhetorical resource the anticanon represents. That use is enabled by at least three features of anticanonical cases: their incomplete theorization, their amenability to traditional forms of legal argumentation, and their resonance with constitutive ethical propositions that have achieved consensus. I argue that it is vital for law professors in particular to be conscious of the various ways in which the anticanon is used – for example, to dispel dissensus about or sanitize the Constitution – that we may better decide if and when that use is justified.

Download the article from SSRN at the link.

New Books

Boros, Claudine L. Maria-Julia, Justice Henry Fielding's Influence on Law and Literature (Xlibris Corp., 2010).

The Cambridge Companion To American Crime Fiction (Catherine Ross Nickerson, ed., Cambridge University Press, 2010).

The Cambridge Companion To English Renaissance Tragedy (Emma Smith and Garrett A. Sullivan, Jr. eds.; Cambridge University Press, 2010).

Goldberg, Edward, Jews and Magic in Medici Florence: The Secret World of Benedetto Blanis (University of Toronto Press; 2011).

Gotteri, Nicole, Le film noir américain, 1940-1955 (Atelier, Fol'fer, 2010).

Hemmings, Clare, Why Stories Matter: The Political Grammar of Feminist Theory (Duke University Press (2011).

Letort, Delphine, Du filme noir au neo noir: mythes et stéreotypes de l'Amérique 1941-2008 (L'Harmattan, 2010).

Shiloh, Ilana, The Double, the Labyrinth, and the Locked Room: Metaphors of Paradox in Crime Fiction and Film (Peter Lang Publishing, 2011).


Woodbridge, Linda, English Revenge Drama: Money, Resistance, Equality (Cambridge University Press, 2010).

Yonglin, Jiang, The Mandate of Heaven and "The Great Ming Code" (University of Washington Press, 2011).

Teen Mom 3: Out of the Library and Onto the Small Screen

The Chronicle of Higher Education's Gina Barreca speculates on how Teen Mom 3 would play out if its contestants included, say, Tess Durbeyfield, Hetty Sorel, and that little troublemaker Hester Prynne. Not only would it continue to draw the college student crowd, which already loves the show, but it would "help MTV and the producers avoid pesky lawsuits and various other forms of judicial actions incurred when the stars get arrested for domestic violence, drug possession, or overuse of heavy black eye-liner and “smoky” lid-color...".

I can see other positives. It would make Teen Mom 3 part of the law and lit curriculum. All of a sudden, Teen Mom 3 would be relevant not just in psychology, social work and criminal justice classes--it would be hip in lit. No more ha-ha-ing Hawthorne or har-har-ing Hardy. Fictional Teen Moms. I like it.

The Face of Murder

The flap over showrunner Brian True-May's remarks concerning the whiteness of the hit show Midsomer Murders shows no sign of abating; indeed, it has spilled over to comments from stars of other shows concerning whether a TV drama ought to reflect reality.

What did Mr. True-May say about the lack of non-white faces on Midsomer Murders? In part, "We just don't have ethnic minorities involved. Because it wouldn't be the English village with them." What he seems to have meant is the the "perfect English village" at least in imagination is completely white--no minorities exist at all. Broadcaster ITV was so taken aback that it suspended Mr. True-May, effective immediately. Criticism poured in, aimed not just at Mr. True-May's lack of sensitivity to the realities of contemporary British society, but at the fact that while he does not allow four-letter words or the actual depiction of violence in his scripts, he does allow viewers to imagine violence, and all sorts of horrific crimes actually do go in the quiet imaginary English village of Causton and the other villages around it. Incest, murders of all kinds using every kind of implement or manner, sexual deviance of nearly every kind pops up on Midsomer Murders. While Mr. True-May and the other creators of the show certainly have a right to express themselves, and everyone agrees that the show is fiction, not reality, the critics argue, to suggest that only white people live in it is to propound a fiction so divorced from reality as to be unimaginable, especially when the crimes that go on in the show are actually usually very imaginable. (Unfortunately).

Reporters have been checking out the actual area in which the show films, and note that minorities actually do live in the area. Apparently the show doesn't hire them as extras, perhaps on the theory that the actual area doesn't represent Causton or its fictional county. Well, it's true: Causton is imaginary, like Agatha Christie's St. Mary Mead. But Mrs. Christie wrote decades ago, but she actually included ethnic minorities in her work--quite a lot of them. One might not like her portrayals, or her allusions--the original British title of And Then There Were None was actually something quite different. But one can find them in her work. Again, if one supports the notion that Mr. True-May can create whatever imaginary venue he wants, and that venue has only Caucausians in it, then of course Midsomer County could exist and Mr. True-May's vision is as "true" as any other.

Mr. True-May may have specific reasons for not hiring ethnic minorities for the show, including the ones he gives. If he really doesn't cast ethnic minorities because he thinks the viewing audience won't accept them, then that's a shame. But is it so clear that the Midsomer Murders viewing audience would wander away if ethnic minorities turned up among the cast? I'd suggest lack of ethnic minorities isn't necessarily the reason for the show's success. Granted, I don't live in the UK, but I watch the show regularly, and I'd suggest these reasons as some of those for its popularity. One is predictability. In every episode the show provides a murder. It's titillating, it's more or less gruesome, it's puzzling. It provides interesting characters. Another is safety. Whatever the murder(s) is/are they are "safe," because Causton and their surroundings are imaginary, and the whole thing will be wrapped up by reliable officers who are smart, likeable, and trustworthy. A third is comfort, or one might say "reliability." The bad people get caught. Justice is served and the officers serve that justice while staying within the bounds of the law. What could be sweeter, or more comforting? At the end of the day, after the world's problems overwhelm us, what could be more satisfying than to settle into the knowledge that we can return to a well known realm in which we can have complete faith in the honesty, intelligence and reliability of cops who will carry out both the spirit and the letter of the law and who will catch the bad people? Yes, we know it's all fiction, but it's comforting fiction. Most viewers tend to like the popular culture depiction of law when it coincides with justice. But do they really require that it be a particular color of justice?

Whether recurring characters are ethnic or not, when they are intelligent, likeable and sure to get their man or woman, the writing is smart,  and the events not too graphic, an audience will ask for more of the same. To that extent, the success of Midsomer Murders isn't that much of a mystery. If Mr. True-May adds some non-white faces to the cast, for example a couple of recurring characters with whom the audience can fall in love,  he might be surprised at the outcome.

Legal Dimensions of Secularism

Rafael Palomino, Universidad Complutense/Facultad de Derecho, has published Legal Dimensions of Secularism: Challenges and Problems, given at the 17th Annual International Law and Religion Symposium, Brigham Young University, Provo, Utah, October 3-5, 2010. Here is the abstract.

This paper explains the differences between concepts like secularity, secularization, secularism, laïcité, applied to Church-State affairs. The paper address present and future challenges in the area of Law and Religion: educational rights, religious symbols, labour law, religious conscientious objection.

Download the paper from SSRN at the link.

Call For Papers

From the Executive Articles Editor of the West Virginia Law Review:

The West Virginia Law Review seeks papers on the topic of non-violence as a means of social change and pathway to democracy for former dictatorships or totalitarian regimes for its special issue, Non-Violence and the Road to Democracy.




Recently, Egypt joined the ranks of countries whose political landscapes are forever changed through non-violent protest. Today, the spirit of revolution spreads across the Middle East—with varying results. This spark and catching flame calls the West Virginia Law Review to contemplate the role of law in the occurrence of non-violence as means of social change and the law’s role in transitioning societies from non-violent revolution to democracy. This contemplation extends to topics including but not limited to:



• the development and treatment of non-violent resistance groups in the context of totalitarian or oppressive regimes;

• teachers of non-violence as agents of the law working against lawless regimes;

• models for effective transitions and peaceful revolution to democracy, including the role of international law and institutions in such transitions;

• the sources of non-violent revolutions, for example, Gandhi’s teachings;

• non-violent aspects of transitions to democracy in specific countries and regions, such as Egypt, India, Northern Ireland, Russia, Serbia (i.e. Otpor!), South Africa, and Spain; and

• the intersection of non-violent protest, technology (including social networks) and the “right to information.”



The West Virginia Law Review will consider papers from a variety of disciplines, including history, law, philosophy, and political science. Papers may stray from the traditional article format to adequately address the call above. To be considered for this call for papers, please submit an abstract of no more than 1,500 words, a current curriculum vitae, and cover letter to wvlrev@mail.wvu.edu or mailed to the address above. The deadline for these abstracts is April 15, 2011.



Most articles should be 10,000 to 20,000 words, but shorter works will be considered where appropriate. Selected authors will submit their first drafts to the West Virginia Law Review by July 15, 2011. Please contact Lara Omps, Senior Managing Editor, with questions at laraomps@gmail.com. We look forward to reading your submissions.

ALSCH Conference

I'm just back from the ALSCH (Association for the Study of Law, Society and Culture) Conference, this year hosted by the University of Nevada, Las Vegas, Law School, and I had a wonderful time, as did, I think, the other attendees. Dean John White and his faculty, staff, and students were charming and attentive to us all. The law librarians and staff in particular put up a great display featuring books written or edited by people presenting at the conference and the UNLV IT folks were in attendance to trouble shoot.

The panels were excellent. There were so many that I had trouble choosing among them, but those that I attended were one on the rhetoric of net neutrality that was really innovative, and another on gender and violence in popular music that got me thinking about the relationships between rhetoric and economics.

The officers--outgoing president Linda Meyer, secretary Serena Mayeri, treasurer Susan Ayres, webmaster Tucker Culbertson, and listserv moderator Susan Heinzelman--once again put on a great event. Next year Texas Wesleyan Law School will host, from March 15 to March 17, and then--save your pennies--it's off to Birkbeck College for the 2013 get-together.

Wife-Selling In "The Mayor of Casterbridge"

Julie C. Suk, Cardozo School of Law, has published The Moral and Legal Consequences of Wife-Selling in The Mayor of Casterbridge in Gender, Law and the British Novel (Alison LaCroix and Martha Nussbaum eds.; Oxford University Press eds.; 2011). Here is the abstract.

What kind of man sells his wife? Thomas Hardy’s The Mayor of Casterbridge opens with a famous episode in which a poor hay trusser, Michael Henchard, sells his wife, Susan, by impulsively putting her up for auction in a public market. Susan is purchased by a sailor, with whom she departs and subsequently lives as husband and wife. Subtitled “The Life and Death of a Man of Character,” the novel presents itself as a study of the flawed, complex, and ultimately tragic moral character of the man who sold his wife. This essay interprets the novel’s account of the moral consequences of the wife-sale in The Mayor of Casterbridge, by examining the shifting legal and social meanings of the practice in nineteenth century Britain. The novel exploits uncertainty about the legal consequences of wife-selling to generate the novel’s moral tragedy.

Download the essay from SSRN at the link.

The Legal and Cultural History of Legal Aid

Felice Batlan, Illinois Institute of Technology, Chicag-Kent College of Law, has published The Gendered Lives of Legal Aid: Lay Lawyers, Social Workers, and the Bar, 1863-1960. Here is the abstract.
 

The Gendered Life of Legal Aid, 1863-1960 (manuscript in process) will be the first monograph on the history of civil legal aid in the United States. By closely examining the history of legal aid in New York, Chicago, and Boston, it presents a number of arguments with wide-ranging implications and it is animated by a host of conflicts. These include the relationship between legal aid and citizenship, the changing status of domestic relations law, the interactions between lawyers and social workers and their different understandings of the role and nature of law, what services legal aid should provide, and even how the history of legal aid should be told. More specifically the work questions what it historically meant to “practice law” or “to be a lawyer” and argues that women practiced law before they were admitted to law school in large numbers or could be admitted to state bars. Thus it puts in historical context and collapses the categorical dichotomy of lawyer versus non-lawyer and argues that our understanding of women practicing law in the nineteenth century needs to account for women lay lawyers. It also demonstrates that the practice of law from the nineteenth century through the first decades of the twentieth century was more democratic, heterogeneous, and less elite than we currently appreciate.

Download the paper from SSRN at the link.

Post-Modernism, Law, and Behavioral Biology

Edwin S. Fruehwald has published When Did Ignorance Become a Point of View?: Postmodern Legal Thought and Behavioral Biology. Here is the abstract.

Postmodernism is a major influence on contemporary jurisprudence. This paper will critique Postmodern Legal Thought using insights from behavioral biology. As this paper will show, Postmodernism is based on the denial of human nature – it is based on ignorance (lack of knowledge), and it has had a pernicious effect on the law.

Part I of this article will examine Postmodern Legal Thought. This Part will include a traditional critique of Postmodernism and its most important element – strong moral relativism. Parts II and III will demonstrate how insights of behavioral biology weaken the foundations of Postmodern Legal Thought. Part II will demonstrate how behavioral biology has destroyed the Blank Slate (social constructionist) theory of human nature upon which Postmodernism is based. Part III will show the existence of neurocognitive (innate) universals in the human mind, which destroys the strong moral relativism underlying Postmodernism. Finally, Part IV will present an alternative to Postmodernism’s radical political theories, based on behavioral biology.

Download the paper from SSRN at the link.

Critical Legal Conference 2011

An announcement for the Critical Legal Conference, to be held at Aberyswyth University, September 9-11, 2011.

The History of the French Railroad Industry in the Nineteenth Century

Guy Numa has published On the Origins of Vertical Unbundling: The Case of the French Transportation Industry in the 19th Century in volume 20 of the European Journal of the History of Economic Thought (2013). Here is the abstract.

The paper retraces the origins of the unbundling of infrastructure, which is a monopoly, from services, which are subject to competition. Using the case of the railroad industry in France, I examine how both natural monopoly theorists and legislation dealt with this subject in the 19th century. I argue that the origins of vertical unbundling date to this period with legislation pertaining to inland waterways and railroads. This was particularly the case for the railroad industry due to pricing and competition rationales. I analyze the writings of Dupuit and Walras and show that they both agreed that infrastructure and services had to be unbundled for the inland waterways. In contrast, they expressed different justifications to defend the monopoly for the railroad industry. Following a chronological progression, the first section explores the origins of unbundling in legislation. The second section analyzes how theorists approached the way railroads had to be managed. Throughout, I highlight the interplay between their work and legislation.

Download the article from SSRN at the link.

Summer School Program on the Cultural Study of the Law

From Peter Schneck, Summer School Director:

The Third International Summer School on the Cultural Study of the Law will be held from this August 7th to August 21st in Osnabrück, Germany. Hosted by the Institute of English and American Studies, in collaboration with the University of Copenhagen, the Birkbeck School of Law at the University of London, York University, Toronto, The Jean Monnet Centre of Excellence and the European Legal Studies Institute at the University of Osnabrück, the summer school seeks to bring together graduate students from around the world to promote and examine the interdisciplinary study and research of law and culture.




During the two week program, students will partake in a unique experience of scholarly collaboration and exchange through workshops, public lectures, panel discussions, excursions and a final symposium.



The School will offer a total of four workshops for 20-25 international graduate students over a two-week period. The first workshop will be concerned with basic theories, concepts and perspectives within the emerging field of cultural legal studies, focusing specifically on the range and potential of interdisciplinary studies and approaches. The remaining three workshops will focus on key areas of critical inquiry that have been central to the dynamic development of the field and are of particular importance within an European context, for example:



--The relation between human rights and cultural rights



--Towards a Culture of Rights?: Law, Literature and the Cultural Presence of the Law



--Copyright, Authorship and the ‘Propertization’ of Culture



*Participant Eligibility*

Doctoral candidates in literature, the law, the arts, the humanities, and the related social sciences are invited to apply, as are advanced students pursuing a J.D. or its equivalent (such as the L.L.B). Young scholars or junior faculty members who have received a Ph.D. or corresponding degree in the last five years are also eligible. There are openings for approximately 25 students to participate in the summer school.



*Application Process*

Applicants should complete:



--> An application form, indicating preferred workshop that can be found at: http://www.blogs.uni-osnabrueck.de/lawandculture/admission/



--> A statement of purpose no more than two pages long, describing current scholarly interests, previous research, and plans for how the Summer School would specifically further these interests and plans.



--> An up-to-date curriculum vitae.



Students interested in taking part in the Summer School should submit their applications no later than April 30, 2011. Detailed information about the school, the workshops, international faculty, admission and fees can be found at:

http://www.blogs.uni-osnabrueck.de/lawandculture


*Questions*

Please direct all inquiries about the school to our coordinator's office at

lawandculture@uos.de

New Books of Interest

New books of interest:

Agamben, Giorgio, The Sacrament of Language: An Archaeology of the Oath (Trans. Adam Kotsko, Palo Alto: Stanford University Press, 2010).

Bhatia, Nandi, Performing Women/Performing Womanhood: Theatre, Politics, and Dissent in North India (Oxford: OUP, 2010).

Brown-Nagin, Tomiko Courage to Dissent: Atlanta and the Long History of the Civil Rights Movement  (Oxford, Oxford University Press, 2010).

Bucholtz, Mary, White Kids: Language, Race, and Styles of Youth Identity (Cambridge: Cambridge University Press, 2010).

Chaplin, Jonathan, Herman Dooyeweerd: Christian Philosophy of State and Civil Society (Notre Dame: University of Notre Dame Press, 2010).

Chakrabarti, Pratik, Materials and Medicine: Trade, Conquest, and Therapeutics in the Eighteenth Century (Manchester: Manchester University Press, dist. Palgrave Macmillan, 2010).

Crockett, Clayton, Radical Political Theology: Religion and Politics After Liberalism (NY: Columbia University Press, 2010).

The Emperor and Rome: Space, Representation, and Ritual (Bjørn C. Ewald and Carlos F. Norena eds., Cambridge University Press, 2010).

Frost, Dennis J., Seeing Stars: Sports Celebrity, Identity, and Body Culture in Modern Japan (Cambridge, Harvard University Press, 2010).

Israel, Bill, A Nation Seized: How Karl Rove and the Political Right Stole Reality, Beginning With the News (Spokane: Marquette Books, 2010).

Kosnoski, Jason, John Dewey and the Habits of Ethical Life: The Aesthetics of Political Organizing in a Liquid World (Lexington: Lexington Books, 2010).

McCormick, John P., Machiavellian Democracy (Cambridge: Cambridge University Press, 2010).

Raiford, Leigh, Imprisoned in a Luminous Glare: Photography and the African American Freedom Struggle (Raleigh: University of North Carolina Press, 2010).

Ruck, Rob, Raceball: How the Major Leagues Colonized the Black and Latin Game (Boston: Beacon Press, 2010).

Schilt, Kristen, Just One of the Guys: Transgender Men and the Persistence of Gender Inequality (Chicago: University of Chicago Press, 2010).

Serres, Michel, Malfeasance: Appropriation Through Pollution? (Trans. Anne-Marie Feenberg-Dibon, Palo Alto: Stanford University Press, 2010).

Techno Politics in Presidential Campaigning: New Voices, New Technologies, and New Voters  (John Allen Hendricks and Lynda Lee Kaid eds.; Routledge, 2010).

Vaidhyanathan, Siva, The Googlization of Everything (And Why We Should Worry) (Berkeley, University of California Press, 2010).

Warren, Michelle R., Creole Medievalism: Colonial France and Joseph Bedier's Middle Ages (Minneapolis: University of Minnesota Press, 2010).

Weithman, Paul, Why Political Liberalism? On John Rawls's Political Turn (Oxford: OUP, 2010).