April 30, 2011

Faith, Beliefs, the "New Atheists" and Law

Iain T. Benson, University of the Free State, Faculty of Law, South Africa, and Miller, Thomson, has published Unexamined Faiths and the Public Place of Religion: Emerging Insights from the Law, at Acta Theologica 2011 Suppl: 14: 1-19.  Here is the abstract.

The article examines certain key terms, such as “beliefs” and “faith” and how these are understood in relation to the public sphere. It examines some writings of recent popularist authors such as Richard Dawkins and Christopher Hitchens and is critical of the authors’ claims that they do not have faith or beliefs. Drawing on legal decisions in Canada and South Africa the article suggests that this sort of terminological looseness has legal and political implications when it comes to whether or not beliefs of all sorts (religious and non-religious) are treated fairly in the public sphere.
Download the article from SSRN at the link.

April 28, 2011

The Civil War and American Literature

Randall Fuller explains the effect of the Civil War on American lit in From Battlefields Rising: How the Civil War Transformed American Literature (Oxford University Press, 2010). According to a recent Boston Globe review, the author

reminds us that the 1860s featured as talented a cohort of American writers as any decade could ask for — authors now known and loved by only their last names: Whitman, Emerson, Hawthorne, Dickinson, and Melville. Fuller carefully details how these writers experienced the war in their daily routines, their family lives, and their interlocking friendships.

What this group portrait reveals is that, while the Civil War may not have led to any lasting works of literature, it had a profound impact on the most important writers of its era. The war changed what they believed and how they wrote. After the shots at Fort Sumter, the North came quickly and patriotically together — “flush’d in the face,” in Whitman’s words, “and all its veins fiercely pulsing and pounding.” But Fuller suggests that Whitman and his literary cohort soon became uncomfortable with this kind of certainty, even though they had played a large part in putting that certainty into place. America’s first generation of great writers began experimenting with new literary forms, and began questioning their most dogmatic assumptions about the morality and effects of war.
More here.

Illusion and Critique At the Beginning of the Twenty-First Century

Igor Stramignoni, London School of Economics, Law Department, has published Illusion and Betrayal: The City, the Poets, or an Ethics of Truths? in volume 7 of the Utrecht Law Review (2011). Here is the abstract.

A nagging feeling of great expectations turned sour is in the air, at least at this end of the globe. The illusion appears to have been twofold. Those liberals who after the Cold War had imagined finally to see the Western city win over competing forms of self-regulation, self-reproduction, and homeostasis can no longer fail to see how, by the time the twenty-first century has commenced, democracy and the rule of law, the West's own blueprint for living together, have lost some of their lustre, when they have not been bluntly rejected. Those amongst the poets who, by contrast, had argued all along that another world was possible or, alternatively, that democracy and the rule of law could at most be promised or tendered rather than fully achieved or imposed, sometimes today worry whether in the process they may not have become somewhat problematically fixated with what in the age of mass culture and information technology might be a potentially self-defeating aesthetics of the Other. Alain Badiou's Platonism of the multiple and, specifically, his ethics of truths invite us to consider whether the widespread sense of disappointment and closure which follow from such an unsatisfactory situation should not be grasped as a figure of nihilism, specifically as a figure of 'betrayal', and whether, on the other hand, what is required may not be discernment, courage, and caution and to remain alert to the possible occurrence of new signal events. Thus to a poetics of illusion and of consequent disappointment Badiou prefers an ethics of truths which starts from the obvious existence of certain generic truths and yet is never closed-off to the invention of new ones. As presented, Badiou's ethical proposal is far from being fully developed and it is bound to be contentious. And yet it does contribute to a unique and powerful critique of current events as they ceaselessly appear on the horizon of a more interconnected world, specifically a critique which purports to offer a more affirmative, and even optimistic, message than many competing analyses of democracy and the rule of law.
Download the article from SSRN at the link.

The Development of National Identities

Hannibal Travis, Florida International University College of Law, has published On the Existence of National Identity Before ‘Imagined Communities’: The Example of the Assyrians of Mesopotamia, Anatolia, and Persia. Here is the abstract.

Studies on nationalism and the emergence of modern ethnic identities rarely examine sources dating from the period 0 CE (A.D.) and 1453 CE, or the period between the fall of the Neo-Assyrian Empire in the mid-first millennium CE and the Age of Discovery in the mid-second millennium CE. Testing generally accepted theories of national and ethnic distinctiveness against these sources reveals that a similar case exists for the existence of an Assyrian identity and/or nation as for a Greek, Kurdish, Jewish, or Persian identity or nation. Assyrian populations, religions, and political formations survived in present-day Iraq, Iran, and Turkey from 0 CE well into the 1800s CE.

Commentators on modern nationalism in relation to Assyrian identity have assumed, with little evidence, that the non-Arab, non-Jewish peoples of the East lacked the agency or the intellect to maintain a consistent identity, and that these peoples relied in their ignorance and indolence concerning their own identities on the theories of Western missionaries and colonial officials. After a long tradition of historical and cultural work assumed nations and peoples as subjects of analysis without critically examining the linguistic, cultural, or religious foundation of these groups of individuals or families, a new generation of scholars emerged who questioned this approach by positing that nations and peoples emerged in conjunction with modern capitalistic cultural forms and secular nationalistic liberalism. This theory, however, has the risk of degenerating into a vulgar instrumentalism, which assumes that identity entrepreneurs can manufacture ethnic, racial, or religious identity for their own purposes and little objective foundation. Thus, more recent studies point out the flaws in grounding national and ethnic distinctions in modern nationalism by compiling evidence that nations and peoples perceived themselves and were perceived by other collectivities as such long before the rise of European humanism or the Enlightenment.

This study attempts to show that the longevity and diversity of national and ethnic distinctions undermines a one-size-fits-all explanation such distinctions in the manner of Benedict Anderson’s “Imagined Communities.” The evidence from the Assyrian case suggests that the undifferentiated hordes of Asia did not coalesce and order themselves in modern times and under Western influence into nations created and sustained by advanced technology. This “Imagines Communities” narrative suffers from hindsight bias and an exaggerated Eurocentrism. It also insults and infantilizes the peoples and nations of premodern eras and non-Western regions by assuming they lacked the intelligence with which modern Europeans constructed national cultures, laws, literatures, schools, and economies. Historians have long since disproved such ideas.

By examining translations of and academic commentary on Aramaic, Greek, Roman, and Persian literature and inscriptions, among other sources, this Essay demonstrates that the British Empire invented neither the modern Assyrians as a people, nor the territory of modern Assyria that was considered for statehood by the League of Nations after World War I. Rather, the identification of present-day northern Iraq, northwestern Persia, and southeastern Turkey as “Assyria” draws support from the Middle Assyrian and Neo-Assyrian usage of the second and third millennia BCE, and the Greek, Roman, Persian, and Aramaic usage in the first millennium CE. Finally, the contribution of ancient Assyria to the cultures, languages, and religions of the non-Muslim populations of contemporary Iran, Iraq, and Turkey, especially Assyrian Christians, Mandaeans, and Yezidis, may no longer be doubted. This contribution is present in these peoples' daily vocabularies, place-names, and indigenous beliefs.
Download the paper from SSRN at the link.

April 27, 2011

Staging Science

Stephen Hilgartner, Cornell University Department of Science and Technology Studies, has published Staging High-Visibility Science: Media Orientation in Genome Research in The Sciences' Media Connection--Public Communication and Its Repercussions: Sociology of the Sciences Yearbook 152 (S. Roedder, M. Franzen and P. Weingart eds.; Springer 2011). Here is the abstract.

The medialization concept was developed using differentiation theory and has been applied analytically at the level of systems. This paper develops a complementary perspective for considering medialization that focuses on media orientation as it is expressed in interaction. How do individual scientists or science-intensive organizations manifest an orientation to the media? In what ways, and how intensely, does the media fit into their activities? To address these questions, the paper develops a framework that conceptualizes media orientation as a specific form of what Erving Goffman calls “theatrical self-consciousness.” The tools of dramaturgical analysis are brought to the staging of science, providing a vocabulary for exploring science-media coupling not as connections between abstract systems but as strategic interaction. The focus on theatrical self-consciousness casts a spotlight on questions about precisely what actors seek to make visible to whom and when. An ethnographic study of genome research during the Human Genome Project provides data. The paper examines interactions surrounding a specific episode: the announcement that a private firm, Celera Genomics, intended to sequence the human genome before the public project could. The analysis provides a look at the specific and varied ways in which members of a particular research community related to the media. The conclusion distinguishes among four facets of media orientation (the actor as performer, as audience, as commentator, and as builder of media relations infrastructure). Finally, it notes some possible methodological implications.
The full text is not available from SSRN.

A Review of David Gurnham's "Memory, Imagination, Justice"

Julia J. A. Shaw, De Montfort University, has published A Review of Memory, Imagination, Justice: Intersections of Law and Literature by David Gurnham. Here is the abstract.

Memory, Imagination, Justice: Intersections of Law and Literature is a highly-recommended read. It has several merits in that it not only offers a useful wide-ranging reference point for academic and practising lawyers, philosophers and sociologists, it also provides a provocative and engaging addition to the existing body of literary jurisprudence.
Download the review from SSRN at the link.

Evaluating International Tribunals

Richard Ashby Wilson has published Humanity’s Histories: Evaluating the Historical Accounts of International Tribunals and Truth Commissions. Here is the abstract.

Since the trials of high-ranking Nazi war criminals in Nuremberg during 1945-1946, commentators have been asking whether courts are the best place to write a history of war crimes and crimes against humanity. This debate gained momentum during the 1961 Eichmann trial in Israel and the Holocaust trials in France in the 1970s and 1980s, and took on new relevance during the wave of democratizations in Africa, Latin America and Eastern Europe in the 1980s and 1990s. During the 1990s, the United Nations and major donor governments adopted official policies stating that the task of writing a new official history was central to facilitating both co-existence and accountability after authoritarianism and violent conflict, and they promoted new institutions such as truth and reconciliation commissions to fulfill this undertaking. Now it is time to critically evaluate this range of institutions and ask: have international tribunals or commissions of inquiry actually provided significant insights into the origins and causes of political violence? How might states or international institutions document human rights violations in a way that is comprehensive and engages in a meaningful reckoning with the past?
Download the paper from SSRN at the link.

April 26, 2011

Pacificism In Popular Culture

Hannibal Travis, Florida International University College of Law, has published Postmodern Censorship of Pacifist Content on Television and the Internet, in volume 25 of the Notre Dame Journal of Law, Ethics, and Public Policy (2011). Here is the abstract.

This Essay, a contribution to a symposium on censorship and the media, explores the legal history of the censorship of antiwar speech. It devotes particular attention to postmodern techniques for chilling the production of pacifist content, or reducing the total output of it. Pacifist speech is defined broadly, as speech advocating peaceful alternatives to war or militarism, articulating doctrines or principles which urge forswearing war or violence in international disputes, or expressing reasons to oppose specific military episodes or entire wars.

A fundamental assumption of democratic governance is that the public keeps informed of important news and points of view by exposure in the press, whether print or electronic. Yet the public is often denied complete information by governments and private media conglomerates acting in close concert. While legal scholars frequently condemn direct censorship by the federal government, they too often neglect the extent to which private parties may be mobilized by the government to foment false beliefs and propagate misleading portraits of vital public policy issues.

This Essay explores postmodern censorship of pacifist expression. Postmodern censorship is distinguishable from its pre-modern or modern counterparts by its immaterial, seemingly nonviolent ways of watching and influencing apparently private activity, in contrast to a modern way of censoring speech by using violence as an ostentatious tyrant would. While still sculpting citizens’ beliefs and behaviors, postmodern power applies itself to private technologies and the enjoyment of what seems to be leisure time or tools such as television or radio. Postmodern regulation directs itself at privatized implementation of governmental objectives, including the lies and crimes of governments. It simulates real events in spectacles of illusion and artifice. In the postmodern era, everything is increasingly artificial, real events are excluded from the public spectacle, and the meaning of words and concepts is lost.
Download the article from SSRN at the link.

Adam Smith's Views on International Law and International Relations

Nicolas Hachez, Leuven Centre for Global Governance Studies, has published Views on International Law and International Relations in Adam Smith's Lectures on Jurisprudence. Here is the abstract.

This article aims to analyze and interpret the views on international relations and international law expressed in Adam Smith's little studied Lectures on Jurisprudence, in connection with the works of Grotius, Hobbes and Pufendorf. In order to do so, the article first tries to unravel Smith's account of the formation of society and government in domestic orders, understood as a complex intertwinement of human and economic factors. The article then goes on to analyze Smith's stated reasons why the seemingly universal human and economic processes leading to the formation of domestic societies and governments are failing when they are to apply in the international order. Finally, this article explores Smith's views on the idiosyncratic rules governing international relations, i.e. the Law of Nations. The conclusion of the article then attempts to formulate insights for a more harmonious international society based on Smith's premises.
Download the paper from SSRN at the link.

Schauer On Mill's "On Liberty"

Frederick Schauer, University of Virginia School of Law, is publishing On the Relationship between Chapters One and Two of John Stuart Mill’s on Liberty in the Capital University Law Review. Here is the abstract.

An important question in free speech theory and in Millian scholarship is the relationship between Chapters One and Two of Mill’s On Liberty. This essay, prepared on the occasion of and as a comment on Vincent Blasi’s Sullivan Lecture at the Capital University Law School, argues that Chapter Two, dealing with the “Liberty of Thought and Discussion,” is best understood as an exception to the general libertarian themes of Chapter One Iand, indeed, the balance of the book), rather than as an instantiation of them. Only by undervaluing Mill’s views about the potential harms of speech, by making Mill less of a utilitarian than he claimed to be, and by slighting the social epistemic claims in Chapter Two can that Chapter be made compatible with Mill’s presentation of the Harm Principle in Chapter One and the rest of the book. But if we take Mill’s epistemic claims seriously (which is decidedly not the same as believing that they are empirically sound), then Chapter One can be understood as largely about actions that do not cause harms to agents other than the actor, and Chapter Two can be seen as an argument for why some other-regarding and harm-producing speech acts may, in the aggregate, produce sufficient social epistemic benefits as to be deserving of a special immunity from state control. It is true, as Blasi argues, that a concern for the character-building nature of both autonomy and confrontation with harmful speech may render Chapters One and Two compatible with each other, but that compatibility requires relegating Mill’s famous epistemic arguments to a secondary role, and requires seeing Mill in less utilitarian and more individualistic terms than he himself professed.
Download the article from SSRN at the link.

Representations of Law in "Deadwood" and "Serenity"

Naomi Mezey, Georgetown University Law Center, has published Law's Visual Afterlife: Violence, Popular Culture, and Translation Theory in Imagining Legality: Where Law Meets Popular Culture 65 (Tuscaloosa, AL: University of Alabama Press, 2011). Here is the abstract.

In Walter Benjamin’s essay, "The Task of the Translator," Benjamin argues that translations enable a work’s afterlife. Afterlife is not what happens after death but what allows a work (or event or idea) to go on living and to evolve over time and place and iteration. In its afterlife, the original is transformed and renewed. In this piece I explore film’s visual translation of law and the role film plays in law’s afterlife. Film translates law not by translating from one language to another, but by translating between media and discourses. The cultural-critical lens of translation highlights the discursive similarities and dissonances between law and film; it allows us to see the legal in the aesthetic and the aesthetic in the legal; and it gives us new purchase on thinking about the ways that word, image, power and justice operate in and through different media. I take up the western HBO series Deadwood and the science fiction film Serenity to explore the representations of law, state and violence at the borderlands of time, place and authority in order to illustrate the layers of legal translation that film can occasion.

My argument focuses on how a few specific scenes translate the dilemmas of state authority, violence and law into the visual, and explores how the visual translations allow a different retelling of legal concerns. I also re-read the film genres in which these specific legal preoccupations most often circulate as legal genres. Both the western and science fiction, as genres, offer two parallel narratives about a foundational problem in law - the relationship of the state to violence. The narratives of the western tend to be progressive yet nostalgic; they are stories about the coming of civilization and the largely successful efforts of the state to reign in excessive private violence by exercising a monopoly on violence. But they are nostalgic for the kind of men - moral individualists - who were the precursors to the state but whose existence is incompatible with state power. The narratives of science fiction are more often dystopic and its stories about law and violence come in two versions. In one version, science fiction portrays the state as perfecting its monopoly on violence to the point of abuse. The state itself becomes the perpetrator of excessive violence. Another version of the science fiction genre narrates the future breakdown of the state, the dissolution of its monopoly on force and the return to private violence. This second version is a marriage of the two genres - the futuristic western. These two film genres in particular often translate the legal anxiety over the state’s unstable relationship to violence in such a way as to give visual life to its instability, an instability that is both suppressed in and central to legal discourse.
Download the essay from SSRN at the link.

April 25, 2011

The Reason For Reasoning

Does Homo jurisconsultus represent an evolutionary milestone? Check out Mark D. White's semi-tongue in cheek post at Psychology Today, discussing a new paper by Hugo Mercier and Dan Sperber (via The Literary Table). Drs. Mercier and Sperber investigate why humans have developed reasoning ability. What is it for? And here I thought it was just to make the decision among the Kindle, the Nook, and the Kobo that much easier. 

Blackstone's Idea of Rights

Helge Dedek, McGill University Faculty of Law, has published Of Rights Superstructural, Inchoate and Triangular: Some Remarks on the Role of Rights in Blackstone’s Commentaries in The Rights of Private Law (A Robertson and D. Nolan, eds. Hart Publishing,  2011). Here is the abstract.

Peter Birks has famously described the way in which rights operate in Blackstone’s legal cosmos as “superstructural.” In order to fully understand what this assessment entails, we will have to take a closer look at how the elements of Blackstone’s conceptual mechanism – right/wrong, rights, wrongs, and remedies – interact and complement each other. This “juridical” analysis, however, will inevitably take us back to the more foundational aspects of Blackstone’s vision of private law. In a formalist jurisprudence, Ernest J. Weinrib has explained, conceptual constructions and philosophical foundations are closely and intrinsically linked in the sense that the former are the expression of the latter – an insight particularly helpful, I believe, in Blackstone’s case, where the explicit verbalization of philosophical underpinnings remains fragmentary and basic theoretical assumptions have to be gleaned from doctrinal construction and categorization. As we shall see, the rights-remedies division in Blackstone’s organizational scheme is the expression of a “dualist” conception of the rights-remedies relationship: Blackstone’s perception of private law is not a Weinribian vision of a coherent, transactional unit, defined by the correlativity of right and duty. The “rights” that come into existence when a “wrong” is committed are of such nature that they can only be perceived as a triangular relationship that necessarily involves plaintiff, defendant and the state.

Download the essay from SSRN at the link.

Joan of Arc As Political Actor

Winnifred Fallers Sullivan, Suny University at Buffalo Law School, has published Joan’s Two Bodies: A Study in Political Anthropology as Buffalo Legal Studies Research Paper No. 2011-017. Here is the abstract. The article is forthcoming in Social Research.

From all of the evidence, Joan of Arc was a conventionally pious Catholic and a patriotic Frenchman. Yet she was tried as a heretic and executed as a traitor. She unnerved both her friends and her enemies in the church and the state with her zeal. And she continues to fascinate. Almost six centuries after she was burned at the stake, her body still has life. This essay uses Kantorowicz’s reading of the historical development of the legal fiction of the king’s two bodies to re-focus our attention on what Joan of Arc accomplished as a political actor.
Download the article from SSRN at the link.

April 22, 2011

Hegel's Theory of Punishment

Thom Brooks, Newcastle University Law School, has published Hegel and the Unified Theory of Punishment. Here is the abstract.

Hegel's theory of punishment has too often been understood as a retributivist position. This error is largely based upon a consideration of some comments in one section ("Abstract Right") in his Philosophy of Right. Instead, Hegel's theory is more innovative and compelling: he is perhaps the first to offer a "unified theory" of punishment bringing together elements of retribution, deterrence, and rehabilitation in a single, coherent theory. Such a view best accords not only with his full comments on punishment in the Philosophy of Right, but also his comments on punishment elsewhere in his system and even earlier work. Moreover, a unified theory of punishment is defended also by his earliest Anglophone defenders, the British Idealists. This essay defends this interpretation of Hegel's theory of punishment and why we should find it compelling.
Download the paper from SSRN at the link.

The Resistance To Disorder In "Billy Budd"

Lawrence Michael Friedman, New England School of Law, has published Law, Force, and Resistance to Disorder in Herman Melville's Billy Budd in volume 33 of the Thomas Jefferson Law Review (2010). Here is the abstract.

The Herman Melville law and literature classic, Billy Budd, Sailor (an inside narrative), illustrates the choice between force and law as means by which to achieve public order in a community. In that story, Captain Edward Fairfax "Starry" Vere believes the law leads inexorably to the determination that the sailor Billy Budd must be tried and executed for causing the death of the ship’s master-at-arms, John Claggart. Like other commentators - including Richard Weisberg and, more recently, Daniel J. Solove - I conclude that, within the context of the story, the law did not, in fact, dictate such a determination. Captain Vere had the discretion, in the circumstances, to choose between following the path of law or not. Relying upon the facts and law as Melville gives them in the story, I suggest an explanation for Vere’s actions, if not necessarily a justification: Vere, by virtue of character and temperament, had a need for order in the midst of the creeping anxiety that disorder was near at hand. Vere’s aversion to disorder both private and public precipitated his reliance upon force, rather than law, to prevent the disruption he feared might result from a failure to punish Billy for the death of the master-at-arms. This disruption may be seen as proxy for the larger currents of disorder that may disturb nearly any community. And though his decision to use force may have led to a return to the status quo condition of order on board the H.M.S. Bellipotent, the long-term impact of Vere’s decision was not quite so clear. There are lessons to be drawn from that decision about the value of adherence to the rule of law, even when such adherence may not appear to be expedient.
Download the article from SSRN at the link.

April 20, 2011

Resisting the Evil State

Joel A. Nichols, University of St. Thomas School of Law (Minnesota) and James William McCarty III (Emory University) have published When the State is Evil: Biblical Civil (Dis)Obedience in South Africa in volume 84 of St. John's Law Review (2011). Here is the abstract.

How should Christians respond to an oppressive government regime? This question has vexed believers for centuries, including in the best known recent example of an "evil state": Nazi Germany. This Article explores the Christian response to the demands of the apartheid state in South Africa in the late 20th century.

This Article particularly focuses upon the way that Biblical text is used – both by the state and against the state. Specifically, governments and ruling Christians in power frequently appeal to Romans 13:1-7 and its command that Christians should submit to the governing authorities, for those authorities have been put in place by God. But disenfranchised, out-of power Christians often look instead to a theme of Biblical resistance to ungodly authority, following the example of Peter in Acts 5:27-30 where the Apostles insist that they must "obey God rather than men." These differing thematic responses to Scripture - submission vs. resistance, authority vs. liberation, order vs. renewal - have come into tension and conflict throughout church history.

The Article first explores the New Testament texts that speak to the relationship of Christians to the civil government. It then provides a modern case study of the competing Biblical themes of submission versus resistance: In apartheid South Africa the ruling state explicitly called upon Romans 13 and those resisting the state overtly invoked Acts 5. (The Article assesses the use of scripture by the Kairos theologians, Beyers Naude, and Archbishop Desmond Tutu.) Finally, the Article offers some concluding reflections on what modern Christians can learn from the Biblical texts and the South African experience.
Download the article from SSRN at the link.

Analogy and Metaphor in Law

Patrick S. O'Donnell, Santa Barbara City College, has published Analogy & Metaphor: An Idiosyncratic Introduction. Here is the abstract.

This essay is an idiosyncratic introduction to analogy and metaphor. It was previously posted in two parts respectively at the Ratio Juris and The Literary Table blogs by way of an introduction to my online bibliography at Ratio Juris for analogy and metaphor. The notes immediately follow each essay, and a list of “references and further reading” is appended to the end of the paper. The section on analogy is intended in part to provoke the interest of legal theorists, while the second half, on metaphor, is aimed at a broader audience although I hope it too will be of interest to legal theorists and philosophers of law. Both pieces no doubt betray their origins in blog posts, hence they are considerably less than polished, but comments to date were generous enough for me to make the inference that they deserve to be made more widely available.
Download the paper from SSRN at the link.

April 19, 2011

Re-Examining the Cold War

Mary L. Dudziak, University of Southern California Law School, has published Unlimited War and Social Change: Unpacking the Cold War's Impact as USC Law Legal Studies Paper No. 10-15, and as a chapter of War TIme: An Idea, Its History, Its Consequences (Oxford University Press, 2012). Here is the abstract.

This paper is a draft chapter of a short book critically examining the way assumptions about the temporality of war inform American legal and political thought. In earlier work, I show that a set of ideas about time are a feature of the way we think about war. Historical progression is thought to consist in movement from one kind of time to another (from wartime to peacetime, to wartime, etc.). Wartime is thought of as an exception to normal life, inevitably followed by peacetime. Scholars who study the impact of war on American law and politics tend to work within this framework, viewing war as exceptional. This conception of war does not capture the predominant nature of American war, at least since World War II, characterized not by cataclysmic battles and great military victories, but by “small wars,” surveillance, and stalemate.

The ambiguity of the Cold War might have signaled that the conventional categories no longer fit – that wartime and peacetime coexisted or had melted together. But rather than viewing the Cold War years as rupturing the older categories of war and peace, contemporary thinkers find ways to fit the experiences of that era into pre-existing conceptual boxes. The Cold War becomes for some writers a “wartime,” complete with a dramatic ending.
This paper examines historical and contemporary thinking about the Cold War. Turning to scholarship on war and rights, my focus is not on the way particular rights or lines of case law develop, but instead on the way writers conceptualize the world within which rights are framed. Ultimately I argue that a wartime frame persists in our thinking about the Cold War, and this obscures our understanding of the impact of war on domestic law and politics. It reinforces the idea that war is a discreet historical experience, and that “peacetime” is the norm, when instead ongoing limited war has become the American experience. The years of the Cold War are one moment in a longer pattern of ongoing war.
NOTE: This chapter has been significantly revised, but the revised version is not posted. The book is scheduled for publication in January 2012.
Download the paper from SSRN at the link.

April 18, 2011

Latina Lawyers Before the Supreme Court

Maria Guadalupe Mendoza has published The Thirteen Known Latina Litigants Before the Supreme Court of the United States. Here is the abstract.

Never before has there ever been any attempt to collect the history and experience of Latino advocates before our nation’s highest court, and no one has ever been known to have answered the question of who was the first Latina to argue before the United States Supreme Court. In 1981, Judge Vanessa Ruiz of the District of Columbia Court of Appeals successfully argued Havens Realty Corp. v. Coleman, before the nation’s high court. For years, she was dubbed as one of the first women to have argued before the nation’s highest court after Justice O’Connor’s 1981 ascent to the Supreme Court. Then in 2009, I began working for her as a judicial law clerk, and I wondered if Judge Ruiz was one of the earlier women to argue before the high court, was she the first Latina to argue before the nation’s highest court? I turned to research, and though I could find the “first” to argue before the Supreme Court for many other communities within seconds of simple internet research - the first African American male, the first African American woman, the first Hispanic males, the first Asian American woman, the first woman - until now, there has been no information on Latina litigants before the nation’s high court.

Profoundly touched by the unavailability of any information as the “first” Hispanic woman to argue before the nation’s high court, I sought to discover who this remarkable woman was. In the course of researching the history of Latina advocates before the high court, I not only learned who the first known Latina to argue before the high court is, but I also learned that while the first Latinos to have argued before the Supreme Court has long been thought to be Carlos Cadena and Gustavo (“Gus”) Garcia - the lawyers of Hernandez v. Texas - the first known Latino to argue before the Supreme Court was really Mexican American activist and lawyer, Manuel J. Ruiz, Jr. He argued Buck v. California before the Supreme Court in 1951, three years before Gus Garcia and Carlos Cadena made their historic argument in Hernandez v. Texas, and a few decades before the Supreme Court would entertain an argument by a Latina. Manuel J. Ruiz, Jr.’s story as the first Latino to argue before the Supreme Court needs to be told, but recognizing that Latinas have never been identified as a community of Supreme Court litigators, this article opts for first introduce the known Latina litigants of the Supreme Court.

From 1950 to 2009, only thirteen known Latinas have argued before the Supreme Court of the United States. The first known Latina to argue before the United States, Miriam Naviera de Rodon, argued before the high court in 1975. A year later, Vilma Martinez, the first known Mexican American woman to appear before the Supreme Court, argued East Texas Motor Frieght Sys., v. Rodriguez, marking the last time the 1970s was known to entertain an appearance by a Latina advocate. Over the course of the 1980s, six Latinas are known to have litigated before the high court, and sadly, the 1990s only brought one known appearance a by Latina before the high court. From 2000 to 2009, four known Latinas have argued before the Supreme Court.

Before the Supreme Court, these thirteen Latinas took everything from criminal law, racial discrimination class actions, first amendment right to free exercise of religion, to pro bono housing discrimination claims to the highest court of lands. During their glorious argument, these women worked for civil right champions the Mexican American Legal Defense Educational Fund (“MALDEF”), for Stanford Law School, while others were in private practice and in the government. These Latinas took on the direct battles of the impoverished and downtrodden - including the legal woes of the Latino community - and other Latinas, proudly strengthened the jurisprudence of our nation through service to the government, private law firms, and public interest entities. Some of these women came up the hard way, overcoming racial discrimination, poverty, and life in a country that was not initially familiar to them, while some of these other Latinas enjoyed access to opportunities that were not previously available to the generations before them. The thirteen Latina litigators of the Supreme Court begin entering the legal profession in the 1960s and have continued achieving access that had previously not been available, becoming the “firsts” to also serve our great nation as Judges, an Ambassador to Argentina, a law school professor, civil rights leaders, appellate attorneys, and as mentors to other Latinas aspiring a career in law.

So why care about the Latina litigants of the Supreme Court? Because generally there is no other court where advocacy can wield more far-reaching influence than the Supreme Court. Advocates from all walks of life powerfully shaped the law to reflect the values, priorities and character of the American people. Consider, for example, the triumphant some of these “firsts” went on to achieve. James DeAnda, an attorney with the Hernandez v. Texas team, went on to successfully argue a series of school desegregation cases, created a civil legal services for low-income families, and was one of the founders MALDEF. Justice Thurgood Marshall pioneered litigation to end racial segregation and discrimination in the United States. Constance Baker Motley at the National Association for the Advancement of Colored People Legal Defense Fund (NAACP LDF), who was the first African American woman to argue before the high court, argued ten race discrimination cases before the high court between 1961 and 1964, winning nine of them. Ruth Bader Ginsburg at the American Civil Liberties Union Women’s Rights Project briefed and argued the leading women’s rights cases of the 1970s as the Director of the Women’s Rights Project.

Latinas who constitute 7% of the total U.S. population and are part of the nation’s youngest, largest and fastest growing ethnic group represent only 1.3% of the nation’s lawyers. The underrepresentation of Latina attorneys has a “negative impact on the ability of Latino/as to advocate and to participate in national and local politics, and it limits access to vital legal services in Hispanic communities, which often face cultural and linguistic barriers. Increasing the number of Latina lawyers can have a profound impact on the political and socioeconomic status of Hispanics in the United States. Their under-representation challenges our legal and business institutions to implement strategies of inclusion and retention for Latinas and all women of color.
The full text is not available from SSRN, but Ms. Mendoza tells me that she hopes to make additional research and an article available in future.

On the subject of Latina/Latino attorneys, see also Michael A. Olivas' The First Latina/Latino Lawyers To Argue Before [the] Supreme Court. [Hat tip to Maria Guadalupe Mendoza].

April 15, 2011

Russian Law and Literature From Alexander II To Nicholas II

José Calvo González, Professor of Law, University of Malaga, has published Derecho y Literatura: Anatoliĭ Fedorovich Koni (1844-1927). Sobre Cultura jurídica de la literatura y Cultura literaria del Derecho en la Rusia imperial de Alejandro II a Nicolás II.  Here is the abstract.

The essay deals with the figure of the eminent jurist Russian Anatoliĭ Fedorovich Koni, representative of the current legal liberal-moderate of pre-revolutionary Russia. Recover your interest in the work of the great master of modern Russian literature, Pushkin, who joins the program to modernize the judicial reforms initiated in 1864. Also lists personal relationships with contemporary writers, including those listed Chekhov, Dostoiesvki and Tolstoy. On this basis analized the overlapping law and literature in two directions, from the legal considerations of literary texts as well as potential of legal categories in literary creation. Finally, insert the two constructions in the atmosphere of a literary and legal culture from which prefigures the literary modernist and (ephemeral and failed) legal modernist.
Download the article from the online journal Law and Literature: ISLL (Italian Society for Law and Literature) Papers at the link. (Text is in Spanish).

Oh, That Anne Shirley

Two articles on IP rights and Lucy Maud Montgomery's Anne of Green Gables have crossed my desk recently. First is

Andrea Slane, University of Ontario Institute of Technology, Legal Studies, Guarding a Cultural Icon: Concurrent Intellectual Property Regimes and the Perpetual Protection of Anne of Green Gables in Canada, forthcoming in the McGill Law Journal. Here is the abstract.

The article examines problems for the public domain raised by the ongoing intellectual property protection afforded to the classic Canadian children's novel Anne of Green Gables. The author suggests that three conceptual difficulties in distinguishing between different intellectual property regimes have allowed the owners of rights in the novel wider and longer protection than they should enjoy: 1) confusion between concepts of source in copyright and source in trade-mark; 2) confusion between an author's moral rights and personal reputation in copyright and goodwill in trade-mark; and 3) willingness to grant public benefit to public authorities seeking official marks protection without consideration of the public interest in limited copyright terms.

Download the article from SSRN at the link.

The second is

Cecily Devereux, University of Alberta Department of English and Film Studies, "Not a 'Usual' Property": A Hundred Years of Protecting Anne of Green Gables, 7 Law, Culture, and the Humanities 121 (February 2011).

Why might redhaired, freckle-faced Anne still be controversial, especially after a hundred years? Because the Montgomery heirs and the Prince Edward Island Provincial government jointly own the rights to the trademark (they administer it through the Anne of Green Gables Licensing Authority), and they guard those rights. Creators of a website established in 2008, Anne's Diary, began using images of Anne without permission. The creators billed it as "the most secure website for children in the world," and it certainly boasted many security features, including a fingerprint reader and registration papers. The problem was that it used the Anne of Green Gables trademark and image (friendliness, security, safety, home) without a license, although the creators apparently tried to get permission. The PEI government and its attorneys began to investigate, according to the Canadian Trademark Blog.  I clicked on a number of the links at Anne's Diary, none of which seem to work now, and the girl's image now on the home page, while redhaired and straw-hatted, does not really resemble Anne Shirley.

April 14, 2011

New Scholarly Books

Barkun, Michael, Chasing Phantoms: Reality, Imagination, and Homeland Security Since 9/11 (University of North Carolina Press, 2011).

Cook, Patrick J., Cinematic Hamlet: The Films of Olivier, Zeffirelli, Branagh, and Almereyda (Ohio University Press, 2011).

Godfrey, Emelyne, Masculinity, Crime, and Self-Defence in Victorian Literature (Palgrave Macmillan, 2011).

Guarino, Gabriel, Representing the King's Splendour: Communication and Reception of Symbolic Forms of Power in Viceregal Naples (Manchester University Press, distributed by Palgrave Macmillan, 2011).

McLoughlin, Kate, Authoring War: The Literary Representation of War from the "Iliad" to Iraq (Cambridge University Press, 2011).

Pearson, Ellen Holmes, Remaking Custom: Law and Identity in the Early American Republic (University of Virginia Press, 2011).

Steinberg, Jonthan, Bismark: A Life (Oxford University Press, 2011).

Vucetic, Srdjan, The Anglosphere: A Genealogy of a Racialized Identity in International Relations (Stanford University Press, 2011).

Sleeping Not Advised

Punchdrunk, the innovative (and interactive) theater company, has brought a new version of Macbeth (that well-known Elizabethan murder fest) to New York's West 27th Street, renamed it "Sleep No More," and invited in the audience. Or perhaps one should say, "Sleep No More" is a derivative work, notes New York Times reviewer Ben Brantley, who describes it as "a largely wordless production...not without thought-churning aperçus. These have less to do with the comely dancers who act out the doomed paths of Macbeth and company than with those clumsy, anonymous lugs in white face masks who keep elbowing one another out of the way to get a better view of the sex and violence. That’s you and me, my fellow theatergoers." Yes, the audience is unmasked, and the players are sometimes, well, in the alltogether. Without masks, as it were.

Counsels Mr. Brantley, "An unimpaired sense of balance and depth perception is crucial to attending “Sleep No More,” which leads its audience on a merry, macabre chase up and down stairs, and through minimally illuminated, furniture-cluttered rooms and corridors. The creative team here has taken on the duties of messing with your head, which they do just as thoroughly as any artificial stimulant." More here from his piece (subscription may be required).

April 13, 2011

Legal Humor

The Zoopreme Court: Equal Justice Under Paws.

Hat Tip to Steven Jamar of Howard University School of Law.

Sidney Lumet

From the New York Times (subscription may be required): discussion of the legacy of the late director Sidney Lumet. Mr. Lumet directed a number of classic law-related films, including the great 12 Angry Men (1957), Dog Day Afternoon, The Verdict, and Network. He also directed Find Me Guilty (2006), starring Vin Diesel, which dramatized the story of Jack DiNorscio, who defended himself against federal charges ("I'm a gagster, not a gangster"), Deathtrap, Murder On the Orient Express (1974), All the King's Men (1958), and several episodes of the television series Danger, which aired from 1950-1954 and Crime Photographer, starring Darren McGavin, which aired in 1951. He also had a bit part in the 2004 remake of The Manchurian Candidate.

A Lawyer/Poet For National Poetry Month

The Spring 2011 issue of William Mitchell On Law's features its graduate Tim Nolan ('89) , who practices with McGrann, Shea, Carnival, Straughn, & Lamb in Minneapolis, and who published a collection of poetry, The Sound of It, with New Rivers Press in 2008. Mr. Nolan publishes regularly in poetry magazines and has another collection of his work due out soon. Here is a link to one of his poems, "Bullhead," recently featured on MPR (Minnesota Public Radio) News.

The Conspirator: Robert Redford's New Film About the Lincoln Assassination

In the National Law Journal's March 28, 2011 issue: Leigh Jones, "In Redford's film, parallels to the present," at page 8. This article discusses Robert Redford's new movie, The Conspirator, about  Mary Surratt and her connections to the conspiracy to assassinate Abraham Lincoln. The film is in limited release April 15, is rated PG-13, and stars James McAvoy, Robin Wright, and Kevin Kline.

More here from the NLJ website (subscription may be required). Here's a link to a video about Frederick Aiken, Mrs. Surratt's attorney. Here's a link to an early review.

Setting the Scenes of the Crimes

Alan W. Norrie, University of Warwick School of Law, has published Inaugural Lecture 'The Scene and the Crime' as Warwick School of Law Research Paper No. 2011-05. Here is the abstract.

What is the scene in relation to the crime? That question can be answered in many ways. It may be the legal process, the political, cultural and literary milieu, the social conditions, the historical context. This is an area where a thousand flowers may bloom. I don’t intend to pick them here, but to focus on where I have come from, and where I am headed. What I am going to say this evening will be tentative, and in a way risky, because I focus on something that contextual lawyers have generally avoided, perhaps for good reason. What I am going to dip my toes in is, indeed, something generally not seen as contextual at all, and that is how an understanding of ethical categories of good and evil may be required for the scene and the crime.
Download the paper from SSRN at the link.

Understanding Allegiances Through Narrative

Jean LeClair, University of Montreal Faculty of Law, has published Federalism, Socrates and Ulysses. Here is the abstract.

Aboriginal scholars sometimes convey abstract ideas through the use of stories. And so, as a means of introducing a thesis about federalism developed in a longer piece written in French, this short paper relates two stories that express some of the most basic ideas that, according to the author, a normative theory of federalism entails. These stories enable one to understand that federalism could be understood as a conceptual institutionalization of reflexivity; as an intellectual posture that makes it mandatory to think problems with a critical eye toward both ourselves and others.

A true federal spirit requires that we be “gadflies”, “stinging bees” always on the lookout for totalizing approaches. Approaches whose conceptual coherence requires that one aspect of reality be obliterated.

Sovereignty, nationalism, cultural authenticity, rights, as “all or nothing” concepts, are unable to explain the complexity of the relationships between aboriginal peoples and Euro-Canadians. All these concepts call for reality to be jammed into one single pigeon-hole.

Instead of emphasizing the particular nature of the relationships between individuals, between groups and between individuals and groups, these concepts seek to identify a quintessential substance: the existence of a “state” where sovereignty is concerned; of a volkgeist or “spirit of the people” where nationalism is appealed to; a cultural essence where authenticity is invoked and, finally, the definition of what distinguishes so radically a person that it deserves to be elevated to the level of a “right”.

From these perspectives, nurturing many allegiances is oftentimes conceived as a symptom of false consciousness. However, envisaged from a federal perspective, duality, and even ambivalence, is not pathology. At the same time, one must recognize that individuals do sometimes feel a stronger attachment to one particular political community or social group.

Federalism is not only an attempt at acknowledging the existence of these social groups to which the citizen’s multiple attachments are engrafted. It also aims at structuring relationships so that these individuals and groups can coexist peacefully together. Unlike the concept of sovereignty, nation, cultural authenticity and rights, federalism makes compromise, concessions and even renunciation plausible, possible and honourable.
Download the paper from SSRN at the link.

April 12, 2011

Arthur W. Maclean and the Legal Education of American Women

Ronald Chester, New England School of Law, has published History's Orphan: Arthur Maclean and the Legal Education of Women, at 51 American Journal of Legal History (April 2011). Here is the abstract.

Relatively few people, even American legal historians, recognize the name Arthur W. Maclean. This article aims to change that by reconstructing the life of this fascinating individual. Arthur MacLean was a pioneer in the legal education of women, who founded Portia Law School in Boston in 1908. MacLean ran that school (now the large, co-educational New England School of Law) as the world’s only all-women law school until 1938. His venture was not only unique, but for the most part highly successful. Yet, MacLean died in near-obscurity and his story nearly vanished from the history books – at least until now.
Download the article from SSRN at the link.

USA Announces New Legal Drama For Summer

USA Network announces the launch this summer of a new legal drama, Suits (previously titled A Legal Mind). It will debut June 23 at 10 p.m. following the series return of Burn Notice. According to The Hollywood Reporter, Suits stars Gabriel Macht as a "top Manhattan corporate lawyer" who "recruits a new hotshot associate and hires the only guy that impresses him, a brilliant but unmotivated college dropout," (Patrick J. Adams). Continues THR, "In order to serve justice and save their jobs, both unconventional thinkers must continue the charade." Wait...I missed something. Is the associate actually an associate (i.e., an attorney just out of law school) or is he a college dropout, or is he a college dropout pretending to be a law school grad? Is that the "charade"?  Hmmm. Stay tuned: the series doesn't appear on USA's website yet but joins several other law-related shows on the network, including Law & Order: Criminal Intent, Fairly Legal, Psych, In Plain Sight, Burn Notice, and White Collar.

The Dutch Court Bailiff

Cornelis Hendrik Van Rhee, Maastricht University School of Law, has published The History of the 'Huissier De Justice' in the Low Countries in Enforcement and Enforceability: Tradition and Reform (C. H. van Rhee and A. Uzelac eds.; Antwerp: Intersentia, 2010) (M-EPLI Working Paper 2011/15). Here is the abstract.

The present paper discusses the history of the huissier de justice (court bailiff or ‘deurwaarder’) in the Netherlands. The author demonstrates that the Dutch huissier has undergone a metamorphosis during the last few centuries. He has changed from a badly educated civil servant with a questionable reputation into a highly educated professional. The reasons underlying this metamorphosis are analysed. Additionally, some of the problems caused as a result of the introduction of market forces in the profession are discussed.
Download the essay from SSRN at the link.

April 11, 2011

The Geography of the Constitution

Allan Erbsen, University of Minnesota (Twin Cities) School of Law, has published Constitutional Spaces in volume 95 of the Minnesota Law Review (2011).

This Article is the first to systematically consider the Constitution’s identification, definition, and integration of the physical spaces in which it applies. Knowing how the Constitution addresses a particular problem often requires knowing where the problem arises. Yet despite the importance and pervasiveness of spatial references in the Constitution, commentators have not analyzed these references collectively. This Article fills that gap in the literature by examining each of the fourteen spaces that the Constitution identifies, as well as several that it overlooks, to reveal patterns in the text’s treatment of space and location. Among the spaces that the Article considers are "the Land" referenced in the Supremacy Clause, the "United States," "States," "Territory," "Property," the District of Columbia, federal enclaves, vicinage "districts," the "high Seas," "admiralty and maritime Jurisdiction," Indian lands, national airspace, and underground resource deposits. The Article shows that many discrete problems on which scholars have focused - such as the rights of U.S. military detainees abroad, the role of federal law on Indian reservations, and the extraterritorial reach of state law - are manifestations of a broader phenomenon that exists because of indeterminacy in how the Constitution allocates power over different kinds of spaces. Considering the many distinct kinds of constitutionally defined and constitutionally overlooked spaces together highlights this indeterminacy, provides new perspectives on commonly discussed problems, and exposes additional puzzles that have escaped scrutiny.

The Article makes four basic points on which future scholarship can build. First, although the Constitution creates a typology of spaces that relies on formal categories, the categories often have little utility in resolving specific questions. The text’s description of the physical contours of spaces and the legal significance of their borders is too imprecise to permit a jurisprudence of labels that converts lines on a map into "bright line" rules of decision. Determining where in physical space a problem arises is therefore a necessary but insufficient prerequisite to determining which government entities can address the problem and how they may respond. Second, constitutionally defined places routinely overlap, such that a point in physical space can map onto several points in constitutional space. Drawing conclusions about how the Constitution regulates particular spaces in particular contexts therefore requires developing rules for allocating concurrent authority and resolving competing claims. Third, even when spaces do not physically overlap, events in one space routinely have consequences in others, residents of a space routinely act in others, and agents of an entity that controls a particular space often operate in other spaces. These spillovers raise questions about when entities (such as states, the United States, and tribes) can regulate beyond borders that would normally cabin their jurisdiction. The parameters of a constitutionally defined place are thus not necessarily coextensive with the reach of an entity governing that place. Finally, the same questions tend to recur in multiple spatial contexts. For example, who decides the boundary of a space and by what standards, when can federal courts create common law governing a space, and when does the text’s explicit enumeration of a space’s attributes imply by negative implication the absence of other attributes? Exposing how these questions arise in multiple contexts reveals subtle dimensions of problems that can go unnoticed when viewed in isolation. The pervasive and overlooked "where" question in constitutional law therefore merits systemic scrutiny.
Download the article from SSRN at the link.

The Norms of Private Law

Nathan B. Oman, William & Mary Law School, has published The Honor of Private Law, as William & Mary Law School Research Paper No. 09-83. Here is the abstract.

While combativeness is central to how our culture both experiences and conceptualizes litigation, we generally notice it only as a regrettable cost. This Article offers a less squeamish vision, one that sees in the struggle of people suing one another a morally valuable activity: The vindication of insulted honor. This claim is offered as a normative defense of a civil recourse approach to private law. According to civil recourse theorists, tort and contract law should be seen as empowering plaintiffs to act against defendants, rather than as economically optimal incentives or as a means of enforcing duties of corrective justice. The justification of civil recourse must answer three questions. First, under what circumstances – if any – is one justified in acting or retaliating against a wrongdoer? Second, under what circumstances does the state have reasons for providing a mechanism for such action? Finally, how are the answers to these questions related to the current structure of our private law? This Article offers the vindication of wronged honor as an answer to these three questions. First, I establish the historical connection between honor and litigation by looking at the quintessential honor practice, dueling. Then I argue that the vindication of honor is normatively attractive. I do this by divorcing the idea of honor from unsavory associations with violence and aristocracy, showing how it can be made congruent with certain core modern concerns. In particular, when insulted parties act against wrongdoers, they reestablish the position of respect and equality that the insult upset. I then show how having the state provide plaintiffs with a means of vindicating their honor avoids making the political community complicit in the humiliation of its citizens and provides those citizens with a means of exercising their agency in ways that provide a foundation for self-respect. Finally, I show those areas of private law where honor operates most powerfully as a justification for providing recourse through the courts while acknowledging that it operates less powerfully as a reason in other areas.
Download the paper from SSRN at the link.

April 10, 2011

Drop Dead Diva

Season 3 of Drop Dead Diva returns this June. Lifetime is offering a season 2 recap here.

While D3 is a much lighter series than shows such as Law & Order: SVU, which emphasize their "ripped from the headlines" relevance, it does manage to make points, and one third season episode should be particularly interesting. Wanda Sykes will guest as a no-nonsense judge. Writer Josh Berman based the episode on the story of Constance McMillen, who sued her Mississippi school district when it refused to allow her to attend her prom with her girlfriend. Ms. McMillen has a small part in the episode.

April 9, 2011

The Hidden History of a Fictional Law School

Edward J. Bander, Suffolk University Law School, has published The Hidden History of Essex Law School (Trafford Publishing, 2010). Here is the abstract.

When law librarian Tom Jones is tapped by Dean Oberal to write the history for the one-hundred year anniversary celebration of Essex Law School he takes his assignment seriously. He soon discovers that the task will involve many challenges and will reveal even more surprises.

Such is the case when Tom interviews Mary McCarthy who served as secretary to the school’s founder, Dean Seth Adams. Mary is a legend at the school and she says that the history Tom is writing won’t reflect half of what she really knows. Mary reveals some interesting information about her relationship with Dean Adams.

What "One L" and "Paper Chase" were to first tier law schools, "Hidden History of Essex Law School" is to fourth tier law schools. This novel explores the intrigue, rivalry, and intellectual failure that make up the chemistry of legal education, particularly at the fictional Boston law schools: Commonwealth, Havad, Huntington and St. Francis. Tom Jones is the catalyst as he roams Boston, New York City, and Mt. Desert Island, ME to bring solace to Mary McCarthy’s conscience and a conclusion to Essex Law School’s future.
Download the table of contents from SSRN at the link.

An Analysis of Supreme Court Voting Alignments, 1838-2009

Christine Kexel Chabot, Loyola University Chicago School of Law, and Benjamin Remy Chabot, Federal Reserve Bank of Chicago & National Bureau of Economic Research, are publishing Mavericks, Moderates, or Drifters? Supreme Court Voting Alignments, 1838-2009 in the Missouri Law Review. Here is the abstract.
We introduce a new dataset recording the vote of every Justice in 18,812 Supreme Court cases decided between 1838 and 1949. We combine our data with existing datasets to examine votes in all opinions through 2009 and address previously unanswerable questions about the President’s ability to appoint Supreme Court Justices of similar ideology. The President’s odds of appointing a Justice who sides with appointees of his party have been no better than a coin flip. There is no historical correlation between divided government and the rate of appointees who vote across party lines. Indeed, the most prominent examples of failed appointments occurred when the Senate and President were of the same party. These mavericks are not lone outliers, but part of a larger pattern of appointees whose votes departed or drifted away from executive expectations with surprising frequency throughout our nation’s history.
Download the article from SSRN at the link.

Law Students As Guinea Pigs

Scott DeVito, Florida Coastal School of Law, has published Experimenting on Law Students: Why Imposing no Ethical Constraints on Educational Research Using Law Students is a Bad Idea and Proposed Ethical Guidelines, at 40 Southwestern University Law Review 285 (2010). Here is the abstract.

Under current federal regulations, law school faculties are permitted to engage in human research using students as subjects with little or no ethical oversight. This freewheeling environment runs counter to well-established ethical guidelines for human research and to law professors’ heightened moral duties as members of the Bar and the legal academy. In addition, it exposes students, law faculty, and the legal academy to risks arising out of the use of unregulated human experimentation in law schools. This is inimical to morally good practice. To remedy this ethical problem, this article provides a set of guidelines for law professors who wish to ethically engage in empirical research using students as subjects.
Download the article from SSRN at the link.

Achieving Social Justice

De Somnath has published Right to Social Justice. Here is the abstract.

By social justice I mean the creation of a society which treats human beings as embodiments of the sacred, supports them to realize their fullest human potential. The concept of social justice is taken in its most comprehensive sense- the legislative, the administrative and the judicial. It is true that the preamble to our constitution uses the term "social justice" and Article 38. And in wider sense various fundamental rights somehow protects the concept of social justice in India. But beyond this neither the constitution nor any subsequent legislation provides the key to precise connotation of expression "Social Justice". So as right to social justice only some fundamental rights with the judicial pronunciation comes into picture. The Preamble declares and secure to all citizens justice, social, economic and political. The concept of social justice is a revolutionary concept which provides meaning and significance to life and makes the rule of law dynamic. In Keshawanand Bharti Case Supreme Court held that preamble is the part of the Constitution. The Constitution inscribes Justice as the first promise of the Republic, which means that State Power will execute the pledge of Justice in favour of millions who are the Republic. I mean to say Social Justice is People’s Justice where the tyranny of power is transformed into democracy of social good. The idea of welfare state is that the claims of social justice must be treated as cardinal and paramount. Social justice is not a blind concept or a preposterous dogma. It seeks to do justice to all the citizen of the state. In the Directive Principles, however, one finds an even clearer statement of the social revolution. They aim at making the Indian masses free in the positive sense, free from the abject physical conditions that had prevented them from fulfilling their best selves…. The essence of the Directive Principles lies in Article 38. In reality, the cry for "social justice" is a call for the State to do something to fix economic and relational inequities without any regard to a universal principle of justice. By describing justice in social rather than legal terms, our attention is immediately drawn to national problems that can only be fixed by a civil government with enough power to enforce its policies. So then, advocates of "social justice" believe that the State plays the major role in rectifying so-called social problems because they are national in scope. Justice and social order had a genetic role in moulding the Indian jurisprudence and notion of justice.If the rule of law and rule of life run close together, a jurisprudence where man matter will bourgeon there. The springs of social justice will arise then - only then.
Download the paper from SSRN at the link.

April 8, 2011

TV Show "Coal" Proves To Be Educational Experience For MHSA Officials

Remember the new reality show Coal, which debuted March 30 on Spike TV? It has already had a real-world effect. Officials at the Mine Safety and Health Administration apparently were part of the viewing audience, and saw some things they didn't like. They've cited Cobalt Coal, owner of the mine featured in the show, for safety violations. Cobalt's chief exec is looking on the bright side. The show can "educate miners nationwide about the right and wrong way to do things."  Owners and viewers might learn also.  

The Rhetoric of Immigration Jurisprudence

Keith Cunningham-Parmeter, Willamette University College of Law, has published Alien Language: Immigration Metaphors and the Jurisprudence of Otherness, at 79 Fordham Law Review 1545 (2011. Here is the abstract.

Metaphors tell the story of immigration law. Throughout its immigration jurisprudence, the U.S. Supreme Court has employed rich metaphoric language to describe immigrants attacking nations and aliens flooding communities. This Article applies research in cognitive linguistics to critically evaluate the metaphoric construction of immigrants in the law.

Three conceptual metaphors dominate legal texts: IMMIGRANTS ARE ALIENS, IMMIGRATION IS A FLOOD, and IMMIGRATION IS AN INVASION. In order to gauge the prevalence of these metaphors, the Article engages in a textual analysis of modern Supreme Court opinions and presents original empirical data on the incidence of alienage terminology in federal court decisions. The Article explains how immigration metaphors influence not only judicial outcomes, but also social discourse and the broader debate over immigration reform. As such, the theoretical study of language has very practical consequences for the people defined by immigration metaphors.

The Article concludes by proposing an oppositional metaphoric framework based on the concepts of migration and economic sanctuary. These metaphors describe immigration in terms of movement, work, and community, in contrast to existing legal metaphors that describe immigration in terms of danger, attack, and criminality. Thus, while today’s immigration metaphors signify a loss of economic security and cultural hegemony, the proposed terms emphasize immigrants’ economic contributions and potential for social belonging. This process of evaluation and substitution diminishes the power of existing metaphors to conflate and essentialize, while creating space in the legal imagination for new frames to emerge.
Download the article from SSRN at the link.

Thurgood Marshall as Writer

Anna P. Hemingway, Starla J. Williams, Jennifer M. Lear, all of Widener University School of Law and Ann Fruth, of Widener University School of Law, Harrisburg, have published Thurgood Marshall: The Writer at 47 Willamette Law Review 211 (2011). Here is the abstract.

This article profiles Thurgood Marshall as a writer in his roles as an advocate and social activist, a legal scholar and a Supreme Court Justice. It examines the techniques that he used as a writer to inform and persuade his audiences in his life-long endeavor to achieve equality for everyone. This examination of Marshall’s legal, scholarly, and judicial writings can help lawyers, academics, and students increase their knowledge of how the written word profoundly impacts society. The article first studies his arguments and legal strategy in two early civil rights cases, University of Maryland v. Murray and Smith v. Allwright. It goes on to examine several letters Marshall wrote while he was working on Lyons v. Oklahoma, a murder trial where the prosecution sought the death penalty. It explains how his creativity as a legal strategist was fashioned of necessity as a young African-American lawyer representing African-American clients in a still segregated society. The second profile explores how the social context and the ethical dilemma that Marshall faced in drafting his brief in Brown v. Board of Education influenced his use of persuasive writing techniques. It shows how Marshall’s choices as a writer accomplished an effective strategy that was simultaneously principled and practical. The article then considers Marshall as a moral activist by examining his speech and writing on the occasion of the Bicentennial Celebration of the Constitution in which he famously refused to applaud it. It compares the contemporaneous reaction to his stance to the consequent controversy about his position that arose during the Senate confirmation hearings of Marshall’s most famous clerk, Elena Kagan. Finally, the article looks at Justice Marshall as a writer in his dissent in Payne v. Tennessee, a capital sentencing case. It demonstrates that by choosing to attack the assumptions underlying the majority’s argument, he was able to craft a broad and powerful writing in which he not only advocated his position opposing the death penalty, but also defended a panoply of individual rights that he believed essential to attaining and maintaining his aspiration of equality for everyone.
Download the article from SSRN at the link.

How Australia's Framers Used the U.S. Civil War

Helen Irving, University of Sydney Faculty of Law, has published Counterfactual Constitutionalism: The American Civil War and the Framing of Australia’s Constitution as Sydney Law School Research Paper No. 11/26. Here is the abstract.

Counterfactual history - the construction of imagined, fact-like scenarios arising from the alteration of antecedents and consequents in real past events - is a controversial business. Among supporters, counterfactualism is defended as serving a valuable heuristic function, and furnishing questions to drive research. But can the knowledge generated by counterfactual history have a real-world, functional application? Is it possible to use what we learn from counterfactualism, not just for future research, but to pre-empt or alter the future? Constitution-making provides us with one answer. This proposition is illustrated with a discussion of the use made of the American Civil War by the framers of Australia’s Constitution in the 1890s.
Download the paper from SSRN at the link.

April 7, 2011

The Dialectic of Obscenity

Brian L. Frye, Hofstra University School of Law, has published The Fortas Film Festival as Hofstra University Legal Studies Research Paper No. 11-10. Here is the abstract.

The story of Jack Smith’s film Flaming Creatures and the “Fortas Film Festival” illustrates the dialectic of obscenity. The obscenity doctrine expresses the conventional wisdom that the First Amendment actually protects art, and protects pornography only by extension. But Flaming Creatures and the Fortas Film Festival suggest that obscenity is dialectical. The obscenity doctrine provides the thesis: art protects pornography, by justifying the protection of sexual expression. Flaming Creatures and the Fortas Film Festival provide the antithesis: pornography protects art, by normalizing sexual expression. The history of obscenity law provides the synthesis: art and pornography protect each other. In other words, art transgresses and pornography reifies.
Download the paper from SSRN at the link.

The Nature of Legal Understanding

Balazs Ratai, Carneades Consulting, has published Legal Semantic Frames - A Short Analysis of the Nature of Legal Understanding in volume 22 of Jusletter IT (February 2011). Here is the abstract.

The paper is a preliminary study of questions relating to the possibility of using semantic frames as means of machine understanding in the legal domain. The paper focuses on the question whether we can talk about legal semantic frames or not and therefore examines how understanding can be understood in the legal domain. In other words it focuses on what legal understanding is and what specialities it has if any. Additionally some conclusions relating to the possibility of using semantic frames in the legal domain will be drawn.
Download the paper from SSRN at the link.

The Black Corporate Bar and the Rise of Barack Obama

David B. Wilkins, Harvard Law School, has published The New Social Engineers in the Age of Obama: Black Corporate Lawyers and the Making of the First Black President. Here is the abstract.

In this article, I document the connection between the election of the nation’s first black president and the fledgling, but nevertheless important, creation of a new black "corporate" bar. Specifically, I argue that the new generation of black lawyers who moved into important positions of power and responsibility in corporate America since the mid-1960s played a critical role in opening the door for an Obama presidency – and that understanding the experiences and attitudes of these new "social engineers" is critical to understanding the President's approach to integrating his obligations as leader of all of the people and his expressed commitment to improving the lives of black people in the first decades of the twentieth century.

My argument proceeds in four parts. Part I documents the important role that Houston’s and Marshall’s original social engineers played in paving the way for Obama. As the President frequently acknowledges, he stands on the shoulders of these giants who quite literally laid the groundwork for his success. Indeed, before running for the Illinois State Senate in 1996 Obama’s career was eerily reminiscent of the great social engineer Wiley Branton for whom the Symposium at Howard Law School where this article appears is named. But for all of his connections to the original social engineers, it was a new generation of black lawyers who actually propelled Obama’s meteoric rise from the Illinois State Senate to the U.S. Senate, and eventually to the presidency. Part II charts the rise of this new generation and explains both their connections to, and differences from, the prior generation of social engineers. Although much has rightly been made of the theme of generational change in Obama’s ascendance, many have mischaracterized both the formative experiences and the commitments of what I will refer to as the Brown generation of black lawyers who came of age in the years following that historic decision. Using original interview data and other sources, I document these experiences and commitments and demonstrate how this generation’s unique status as black professionals with role-related obligations that are separate from, and potentially in opposition to, their continuing commitment to use their positions in corporate America to advance the cause of racial justice both drew this new black legal elite to Obama, and in turn, shaped the way in which the President has responded to similar tensions between his role as president and his desire to use the powers of his office to improve the plight of black Americans.

Part III explores these tensions by examining how Obama has attempted to use the office of the presidency to advance the cause of racial justice. In each of the three major avenues through which he has pursued this goal – using the "bully pulpit" to assist traditional civil rights organizations and to inspire individual responsibility and high aspirations among blacks generally, placing talented black professionals in important positions in his administration, and, most importantly, promising to improve the lives of black Americans through a combination of vigorous enforcement of anti-discrimination laws and a series of new race-neutral social programs targeting areas of particular concern to blacks – the President has employed strategies also employed by the Brown generation. Not surprisingly, many of the same problems that the nation’s first black corporate lawyers encountered when they attempted to negotiate the complex and sometimes conflicting demands of the "equal opportunity" and "social justice" legacies of the Brown decision have also come to haunt the nation’s first black President as he has engaged in an even more public balancing act between his obligation (and right) to be the president of all the people and his commitment to use his office to improve the lives of black people in this country. Part IV closes by briefly examining how the election of the first black president presents unique opportunities – but also poses unique challenges – for this country’s still fragile black bar.
Download the paper from SSRN at the link.

April 6, 2011

The History of Agricultural Property Rights in China Since the Eighteenth Century

Taisu Zhang, Yale University has published Property Rights in Land, Agricultural Capitalism, and the Relative Decline of Pre-Industrial China in volume 13 of the San Diego International Law Journal. Here is the abstract.

Scholars have long debated how legal institutions influenced the economic development of societies and civilizations. This Article sheds new light on this debate by reexamining, from a legal perspective, a crucial segment of the Eighteenth and Nineteenth Century economic divergence between England and China: By 1700, English agriculture had become predominantly capitalist, reliant on “managerial” farms worked chiefly by hired labor. On the other hand, Chinese agriculture counter-productively remained household-based throughout the Qing and Republican eras.

The explanation for this key agricultural divergence, which created multiple advantages for English proto-industry, lies in differences between Chinese and English property rights regimes, but in an area largely overlooked by previous scholarship. Contrary to common assumptions, Qing and Republican laws and customs did recognize private property and, moreover, allowed reasonably free alienation of it. Significant inefficiencies existed, however, in the specific mechanisms of land transaction: The great majority of Chinese land transactions were “conditional sales” that, under most local customs, guaranteed the “seller” an interminable right of redemption at zero interest. In comparison, early modern English laws and customs prohibited the redemption of “conditional” conveyances - mainly mortgages - beyond a short time frame. Consequently, Chinese farmers found it very difficult to securely acquire land, whereas English farmers found it reasonably easy. Over the long run, this impeded the spread of capitalist agriculture in China, but promoted it in England.

Differences between Chinese and English norms of property transaction were, therefore, important to Qing and Republican China’s relative economic decline. By locating the causes of key global economic trends in customary property rights, the Article also has ramifications for influential theories of social norm formation and law and development.
Download the article from SSRN at the link.

Thinking Like Lawyers, Or Others

Donald J. Kochan, Chapman University School of Law, has published Thinking Like Thinkers: Is the Art and Discipline of an 'Attitude of Suspended Conclusion' Lost on Lawyers? as Chapman University Law Research Paper No. 11-15. Here is the abstract.

In his 1910 book, How We Think, John Dewey proclaimed that “the most important factor in the training of good mental habits consists in acquainting the attitude of suspended conclusion. . .” This Article explores that insight and describes its meaning and significance in the enterprise of thinking generally and its importance in lawyering and law school education specifically. It posits that the law would be best served if lawyers think like thinkers and adopt an attitude of suspended conclusion in their problem solving affairs.

Only when conclusion is suspended is there space for the exploration of the subject at hand. The thinker must approach every problem with an open-mind, without a predetermined conclusion. She must overcome the anxiety associated with suspense. One attains “the attitude of suspended conclusion” when developing an art and discipline that quells the impulse for the satisfaction of reaching a conclusion, that accepts an operative state of doubt, and that maintains the patience for careful and thorough inquiry before reaching an eventual conclusion. A conclusion is the end of a reflective process, not an end in and of itself.

Perhaps the insight on this matter seems obvious and straightforward. This Article defends the proposition that this lesson deserves attention precisely because it is so obvious but too often ignored as to make its study intellectual instead. A discipline of following a rule of suspended conclusion can act like a trigger lock for the mind, disabling the tendency to “shoot first and ask questions later.” The rule of suspended conclusion must be engaged before firing the synapses of thought. The Article explains that unpeeling the obviousness of the attitude – to understand its rich core and to see the tendencies that rot its practice – allows us to develop a valuable art and discipline in the thinking process.

The Article includes sections on the educator’s role in “thought”; the importance of developing an appreciation for an art and discipline toward attaining the attitude of suspended conclusion; a brief survey on the research related to psychological tendencies or poor habits that form barriers to the effective adoption – or the positive habitual substitution – of an attitude of suspended conclusion; and wraps up with a discussion of whether lawyers, by the inherent nature of their task, face insurmountable obstacles to developing the discipline of an attitude of suspended conclusion and whether they can exercise the freedom to think like thinkers within their professional obligations. Lawyers certainly face some unique obstacles to adopting an attitude of suspended conclusion, making attention to it all the more important.
Download the paper from SSRN at the link.

Hannah Arendt As Theorist of International Criminal Law

David J. Luban, Georgetown University Law Center, has published Hannah Arendt as a Theorist of International Criminal Law in the International Criminal Law Review for 2011. Here is the abstract.

This paper examines Hannah Arendt's contributions as a theorist of international criminal law. It draws mostly on Eichmann in Jerusalem, particularly its epilogue, but also on Arendt's correspondence, her writings from the 1940s on Jewish politics, and portions of The Human Condition and her essays. The paper focuses on four issues: (1) Arendt's conception of international crimes as universal offenses against humanity, and the implications she draws for theories of criminal jurisdiction; (2) her "performative" theory of group identity as acts of political affiliation and disaffiliation, from which follows a radically different account of the crime of genocide than that of Raphael Lemkin; (3) the "banality of evil," and its relation to legal conceptions of mens rea; and (4) her ultimately inconclusive assessment of law's capacity to confront the radically unprecedented crimes of regimes that are themselves criminal, and which systematically invert the values necessary to distinguish legal rules from exceptions. The essay was written for a symposium on women and international criminal law in honor of Judge Patricia Wald.
Download the article from SSRN at the link.

Christian Doctrine and Moral Theory In Locke's "Two Treatises of Government"

Steven Menashi, Georgetown University Law Center, has published Cain as His Brother's Keeper: Property Rights and Christian Ethics in Locke's Two Treatises of Government in volume 42 of the Seton Hall Law Review (2012). Here is the abstract.

Those scholars who regard Locke’s theory of property as a reflection of conventional Christian views pay insufficient attention to the deliberate rhetorical method of his Two Treatises of Government. Close attention to the text reveals profound criticisms of prevailing Christian doctrine. In fact, Locke’s theory of property forms the core of a moral theory that aims to supplant traditional religious teaching with an ethic of human industry and individual autonomy. Understanding Locke’s intention illuminates the foundations of American constitutionalism and of modern liberalism.
Download the article from SSRN at the link.

April 5, 2011

The "Original" Thirteenth Amendment and Titles of Nobility

Gideon M. Hart has published The 'Original' Thirteenth Amendment: The Misunderstood Titles of Nobility Amendment at 94 Marquette Law Review 311 (2010). Here is the abstract.

This Article provides one of the first truly comprehensive accounts of the “Titles of Nobility Amendment.” The Titles of Nobility Amendment is one of only a handful of proposed amendments to the Constitution that were passed by Congress, but then not ratified by a sufficient number of states. The Amendment would have revoked the citizenship of any individual who accepted a "title of nobility or honor" or who accepted any "present, pension, office, or emolument" from any foreign state without congressional permission.

Despite its failure during the ratification process, the Amendment was printed in the 1815 version of the Statutes at Large as the Thirteenth Amendment, and the Amendment was widely believed to be part of the Constitution well into the late nineteenth century. In recent years, right-wing radicals have seized upon the Amendment, claiming that it was ratified and suppressed in a wide-ranging conspiracy and that it would bar lawyers from citizenship due to their use of the term "esquire." Although a handful of recent articles have addressed these patently false claims, these articles have also misunderstood the Amendment, dismissing it as the product of xenophobia and petty politics.

This Article sets out to address these misconceptions by closely studying the Amendment’s historical context. In reality, the Amendment is an interesting hybrid of the rising fears during the decade preceding the War of 1812 that the United States would be recaptured and marginalized by European powers and of the long tradition of opposition to hereditary privilege in the United States. During the first decade of the nineteenth century, the United States was increasingly buffeted and threatened by the major European powers, particularly by Britain and France. Under great foreign pressure, individuals on both sides of the political spectrum became increasingly suspicious of each other’s loyalties and both parties regularly accused the other of secret collusion and cooperation with foreign states. A response to this perceived foreign threat, the Amendment was intended to prevent the recruitment of American officials and citizens by foreign states with titles, such as the Legion of Honor, or other attractive presents and offices. Today these fears seem far-fetched, but at the time there was a very real worry that the American experiment would be rotted from the inside-out through secret conspiracy and subversion by European powers itching to reestablish their dominance in the Americas. Although long misunderstood, the Amendment is an interesting piece of history and is one of the most intriguing near-Amendments to our Constitution.
Download the article here.