November 28, 2011

Law, Politics, Poland, and "High Noon"

Michal Kuz, Louisiana State University Department of Political Science, has published 'High Noon' and Polish Republican Symbolism in Relation to American Political Culture. Here is the abstract.

This paper examines the fate of certain Polish republican symbols and notions with reference to the American political culture. It focuses especially on the image of Gary Cooper from High Noon that became a widely recognized symbol of the first Polish free elections after World War II. The histories of modern Polish and American republicanisms are, however, intertwined since the very beginning of both traditions of political thought. Unfortunately, because of unfavorable geopolitical circumstances and internal turmoil Poles lost their first state. Hamilton wrote that due to its 'anarchy and weakness' Polish-Lithuanian Commonwealth was: 'unfit for self-government and self-defense' (Federalists 2001, 94). This anarchy, embodied by the liberum-veto rule, was, nevertheless, a corrupted form of political individualism that made Polish political culture so similar to the American one. In line with that tradition when in 1989 for the first time since World War II time Polish citizens voted in elections over which Moscow had no substantive influence, the pro-democratic Solidarity block used a picture of Garry Cooper from the film 'High Noon' on its posters. The sheriff, who wore a 'Solidarity' badge was; holding not a gun, but a folded ballot. 'July the 6th, 'High Noon' - said the slogan. The message was clear. It said that it is time for every citizen to make an individual decision about what he thinks is right and do so disregarding the multitude of those, who may want to oppose such a decision. Referring to that specific film suggested that even against the many, the cause of the democratic opposition would prevail. Indeed this approach may be deemed the positive 'liberum veto.'

Download the paper from SSRN at the link. 

A "Reverse CSI Effect"?

Mark Godsey, University of Cincinnati College of Law, and Marie Alou have published She Blinded Me with Science: Wrongful Convictions and the 'Reverse CSI-Effect' in volume 17 of Texas Wesleyan Law Review (2011). Here is the abstract.

Prosecutors in the United States are often heard to complain these days of the "CSI-effect.'' Jurors today, the theory goes, have become spoiled as a result of the proliferation of these "high-tech" forensic shows, and now unrealistically expect conclusive scientific proof of guilt before they will convict. What I have come to notice, however, is a different kind a reverberation from the CSI-type shows that I believe often hurts defendants and benefits the prosecution. While not reported or discussed in the popular media as is the "CSI Effect," the other side of the coin, which I will call the "Reverse CSI Effect:' may be more damaging to the criminal justice system and the interests of justice than the opposite impact of which prosecutors complain. The "Reverse CSI Effect," as I call it, can be stated as follows: while jurors may have come to expect, as a result of CSI-type shows, high-tech forensic testimony in criminal cases, and may inappropriately acquit when such evidence is lacking, these same jurors, as a result of these same CSI-type shows, often place too much weight on forensic evidence in cases where forensic evidence IS in fact produced by the prosecution, resulting in convictions in cases where the defendant probably should have been acquitted.

Download the article from SSRN at the link.

The Reception of the Code Napoleon In the German States

T. T. Arvind, University of York, York Law School, and Lindsay James Stirton, University of Sheffield Law School, have published Explaining the Reception of the Code Napoleon in Germany: A Fuzzy-Set Qualitative Comparative Analysis, at 30 Legal Studies 1 (2010). Here is the abstract.

This paper examines the diverse responses of the German states to the Code Napoleon at the beginning of the nineteenth century. These states differed both in the extent to which they adopted the Code, and the extent to which they retained the Code after Napoleon’s influence waned. In order to identify the causes of adoption and retention of the Code, we use fuzzy-set qualitative comparative analysis (fsQCA). This method is now well established in comparative research in the social sciences but has been little used in comparative legal analysis. We find the following to be among the conditions relevant to the reception of the Code: territorial diversity, control by Napoleon, central state institutions, a feudal economy and society, liberal (enlightened absolutist) rule, nativism among the governing elites and popular anti-French sentiment. The paper also serves to demonstrate the potential of fsQCA as a method for comparative lawyers.

The full text is not available from SSRN. 

Husbands, Wives, and Early Federalist Thought

Angela Fernandez, University of Toronto Faculty of Law, has published Tapping Reeve, Nathan Dane, and James Kent: Three Fading Federalists on Marital Unity. Here is the abstract.

Tapping Reeve wrote in his treatise on the law of husband and wife, Baron and Femme (1816), that husband and wife were not one person in law. His rejection of Blackstone’s maxim is not as well-known as it should be. Yet, his position was not idiosyncratic, as it was also adopted by Nathan Dane in his important General Abridgment and Digest of American Law (1823). However, James Kent did not follow it in his Commentaries on American Law (1826-30). This paper explores whether Dane’s agreement with Reeve in rebelling against marital unity was based on their New England background (Reeve lived in Connecticut and Dane in Massachusetts), which Kent (from New York) simply did not share. Reeve, Dane, and Kent were all “Fading Federalists,” using their legal expertise and their position as law book writers and law teachers as a way to continue to exert influence lost to them in the political world. They turned to the creation of an American common law as a way to continue to have influence on what America would become. Like Reeve, Dane was involved in various moral campaigns, including the temperance movement, which was an early kind of women’s movement. He was also religious like Reeve and against slavery -- according to some, Dane was responsible for the anti-slavery clause in the North West Ordinance. Kent was not interested in these causes or interests and, indeed, considered those who were to be fanatics or zealots. This helps explain why, when he wrote about married women he was inclined to choose the traditional English approach, Coke and Blackstone, over the indigenous position that jurists in New England were cultivating that sought to emphasize the rights of married women.
 Download the paper from SSRN at the link.

November 17, 2011

Don Quixote and Law

From Jose Calvo González, University of Malaga, the announcement of a conference at the Centro de Ciências Jurídicas, Universidade Federal de Santa Catarina (Florianópolis. Brazil), organized by Dr. Luis Carlos Cancellier de Olivo, and as part of the  de Pos-Graduação en Direito. The conference, "Seminar on Law and Literature," will take place from November 28 to December 2, 2011.  As part of the Conference, Professor Calvo  González will give a talk, "Don Quixote and Law." He will also deliver the closing lecture, "Puppetry and Law:  Sancho´s Justice and judgements in the puppet opera " VIDA DO GRANDE D. Quixote de la Mancha e do gordo Sancho Pança, by António José da Silva.(1705-1739)."

November 13, 2011

Crime On Display

Laura Huey, University of Western Ontario, has published Crime behind the glass: Exploring the sublime in crime at the Vienna Kriminalmuseum at 15 Theoretical Criminology 381 (November 2011). Here is the abstract.

Scholars have noted an ever-increasing growth in the number of crime-themed leisure and tourism venues. Within this article I examine one such site: the Vienna Kriminalmuseum. An analysis of this site provides an opportunity to explore how the ‘sublime in crime’ is presented to the Museum’s visitors in ways that intentionally merge the macabre with the educational. This presentation says much, I suggest, not only about the Museum’s goals, but about its intended audience, an audience seeking to be exposed to elements of the darkest side of humanity, now sanitized for wider public consumption through the union of educational and entertainment strategies.
Hat tip to NuT.


November 9, 2011

Upcoming Events

The Poetry of (the) Law

John C. Kleefeld, University of Saskatchewan, College of Law, has published From Brouhahas to Brehon Laws: Poetic Impulse in the Law, at 4 Law and Humanities 21 (2010). Here is the abstract.

Over the ages and across the lands, poetry and the law have coming led in courtroom and classroom, debuted together in judicial decisions and dissents, and emerged as one in systems as diverse as the Courts of Equity and the law of the brehons - the poet-judges of ancient Ireland. Lyrical language and the poetic impulse have thus helped to inform, persuade, and advance the law. 

Under the literary conceit of a time travel, the author considers the persistence of poetry in law, addressing the artistic expression of devotees and the commentary of critics. Manifestations of the poetic impulse include poetry as ornament to legal argument, judgments written in poetic form (hence the brouhahas), and the use in law of metre, metaphor, imagination, ambiguity, alliteration, and rhyme. The role of poetry in legal education, from Coke's Reports in Verse to law school haiku, is also traversed. Accompany the author on his journey through the legal ages and hear his case for a continued, albeit cautious, role for poetry-in-law.

November 8, 2011

The Hanseatic League As a Functional Overlapping Competing Jurisdiction

Alexander Fink, University of Leipzig, has published The Hanseatic League and the Concept of Functional Overlapping Competing Jurisdictions. Here is the abstract.

In light of the concept of functional overlapping competing jurisdictions (FOCJ) discussed by Frey and Eichenberger (1996, 1999, 2000) I analyze the Hanseatic League; the medieval association of northern European traders and cities that existed from the 12th to the 17th century. I show that the Hanseatic League came close to representing an example of a FOCJ. But in contrast to the FOCJ outlined by Frey and Eichenberger, I find that the polycentric Hanseatic League was not a political authority with the power to tax and regulate its members. The arrangements between the members of the Hanseatic League therefore had to be self-enforcing. Building on my investigation of the Hanseatic League, I further provide a general discussion of the costs and benefits of a central political authority in a system of functional overlapping competing units.
Download the paper from SSRN at the link.

November 7, 2011

NPR's Three Books: Suggestions For Good Reading Help Clarify Connections Between Law and Society

NPR has started a new series, Three Books, in which commentators share a personal story or discuss an issue of interest to them and then recommend three books that carry on the theme. In his essay, NPR's Tony D'Souza reflects on the divergent career paths he and a childhood acquaintance have taken and suggests examining these crime novels for a more nuanced understanding of the interaction of crime and society. More from the NPR series Three Books here, from Bruce Machart, who discusses a friend's encounter with the legal system after a family tragedy, and asks why we gobble up novels about murder, and here, from Lisa Tucker, who talks about Hallowe'en and fall.

Even more Three Books selections here.