December 31, 2012

What Else You Can Do With a Law Degree

What else can you do with a law degree? Check out Comedians at Law, the website of a bunch of recovering lawyers, licensed to make you laugh. (Or try to. Getting up in front of an audience is tough, tougher than teaching). Podcasts here. Speaking of--what is the noun of venery for a bunch of lawyers? A lawsuit of attorneys? A license of lawyers? A jury of mouthpieces? Richard Eisel suggests a "brief of attorneys" and "a gavel of judges."

Speaking of other uses for a law degree, if you still haven't checked out Bloomberg Law's Stealth Lawyers series here, it's still going strong (if the link doesn't work, try searching YouTube for "Bloomberg Law Stealth Lawyers", without the quotation marks). Dare I note(quite modestly) that Bloomberg also credits my research in a video in this series called "History's Stealth Lawyers"? Check it out here

December 17, 2012

The Dred Scott Decision

David T. Hardy has published Dred Scott, John San(d)Ford, and the Case for Collusion. Here is the abstract.

Dred Scott profoundly changed American history. Intended to protect slavery, its unforeseen consequences were the election of Abraham Lincoln, the political destruction of Stephen Douglas, and the adoption of the 13th, 14th, and 15th Amendments. It was also the Court's first interpretation of freedom of speech and assembly, of the right to arms, and of substantive due process. This article explores the degree to which Dred Scott was collusive -- not in the sense of both sides desiring the same outcome, but in the sense of them manufacturing a false case which each thought they could win. The defendant was John F. A. Sanford, a New York businessman who had no claim to being the Scott family's slaveholder, but who nonetheless stipulated to being such. The real slaveholder was his sister Irene, whom the Scotts initially sued in State court. When the Federal suit was brought, her name was likely omitted, and Sanford substituted, because its known destination was the Supreme Court ... and Irene was now married to Calvin Chaffee, a member of the House of Representatives, and a prominent opponent of slavery. Immediately after the decision was handed down, the Chaffees' role was exposed by the pro-slavery press and a public relations battle ensured, ending with their arranging for the Scott family's manumission. Why the pro-slavery side would have colluded is not hard to understand: given the composition of the Court, they were the likely winners. The motive for Scott's attorneys' collusion is harder to discern. His trial court attorney seems to have thought it worth the gamble because a win would enable sidestepping of the Fugitive Slave Act, a major gain given its almost-complete due process deprivations, while a loss would do limited harm -- the attack on the Missouri Compromise and on Congressional power over slavery in the territories was not an issue at the trial court level. Scott's attorney in the Supreme Court did face that issue, but had never been informed that the defendant had no real standing in the case.
Download the paper from SSRN at the link. 

December 12, 2012

Who Done It?

The November 30th quiz at, the website of BBC Music magazine, offers up some musical mystery fun. Can you identify these fictional and real-life murderers and murder victims? You might have to register (it's free) in order to gain access to the quiz, but the material on the website (including downloads, podcasts, reviews, and essays), is more than worth the price of admission. 

December 11, 2012

A New Collection on Legal Aesthetics

Forthcoming from Walter de Gruyter:

Visualizing Law and Authority: Essays on Legal Aesthetics (Lief Dahlberg ed.; 2012) (Law and Literature; 4).

From the publisher's website:

The volume "Visualizing Law and Authority. Essays on Legal Aesthetics" brings together revised papers from the international conference "Law and the Image", held in Stockholm, 24–25 September, 2010. The participants/contributors belong to the disciplines of Art history, Cultural studies, Literary and Media studies, and Law. The contributions discuss the complex relations between law, media and visual phenomena. The common theme of the essays consists in an examination of the scopic field and of regimes of visibility in phenomenological terms, arguing that law constitutes a cognitive and aesthetic field of normative world-making. Rather than merely inverting Shelley’s dictum that the "poets are the unacknowledged legislators of the world", the essays argue in different ways for the necessity to develop a legal aesthetics.
The most immediate way of pursuing such a legal aesthetics consists in examining law itself as an aesthetic object, for instance the power of law to produce icons, in the sense of unreadable texts or textiles (Martin Kayman, Gary Watt). Several essays focus on the way that visual art and media can be used to constitute and represent political power, but also to question it and to put it into question (Chiara Battisti, Leif Dahlberg, Elina Druker, Sidia Fiorato, Paul Raffield). Other essays investigate legal structures inherent in the artwork (and the artworld) itself (Ari Hirvonen, Max Liljefors, Christine Poggi, Karen-Margrethe Simonsen). Finally, there are two essays focusing on the use of images and imagery in the legal process, explicity arguing for the need of a legal aesthetics (Daniela Carpi, Richard Sherwin). Although diverse, the individual essays are interconnected with each other in fruitful and critical ways, making both explicit and implict references to each other.
Available in print and as an e-book.


Confucius and Chinese Legal Philosophy

Norman P. Ho, Netherlands China Law Centre; Morrison & Foerster (Hong Kong) is publishing Confucian Jurisprudence in Practice: Pre-Tang Dynasty Panwen (Written Legal Judgments) in the Pacific Rim Law & Policy Journal. Here is the abstract.

Most scholarship on Chinese legal philosophy has neglected the study of Confucian jurisprudence in practice. As a result of this incomplete portrayal, scholars predominantly view the premodern Chinese Confucian legal tradition as lacking a rule of law system, which has led to blaming Confucianism for much of China’s modern and historical rule of law problems. This article seeks to complicate this view by examining Confucian jurisprudence in practice: specifically, the development of pre-Tang dynasty panwen (written legal judgments). Through analysis of specific panwen from various Chinese primary sources — many of which have never been translated into English — this article will show that even in Chinese antiquity the legal system was not solely marked by codification or the lack of the rule of law, but was far more complex and diverse than most scholars have portrayed. For example, elements of case law played an important role in Chinese legal history. Indeed, it is an especially good time to build our understanding of the use of cases and the role of panwen, in China’s legal past given the Supreme People’s Court’s recent emphasis on the role of case law in contemporary Chinese jurisprudence.
Download the article from SSRN at the link. 

Robin West's "Normative Jurisprudence"

Hanoch Dagan, Tel Aviv University, Buchmann Faculty of Law, is publishing Normative Jurisprudence and Legal Realism in volume 63 of the University of Toronto Law Journal (2013). Here is the abstract.

This review article examines Robin West’s provocative new book Normative Jurisprudence: An Introduction. West provides a learned and sophisticated account of the decay of the three major jurisprudential traditions of North American legal theory: natural law, legal positivism, and critical legal studies, which leads to and is motivated by a spirited plea for the reinvigoration of distinctively legal normative scholarship. Her proposed genealogy is valuable and her preliminary blueprint for reform important. But I believe that both fronts can be significantly enriched by a more charitable reading of legal realism than the one she (briefly) provides. Thus, this review offers a competing genealogical account of the three contemporary approaches to law West criticizes, claiming that like critical scholars, promoters of institutional fit and of economic efficiency are also intellectual descendants of legal realism. Legal realism, I insist, provides a subtle conception of law as a set of institutions distinguished by the irreducible cohabitation of power and reason, science and craft, and tradition and progress. This conception, which was torn apart by the realists’ heirs, offers the key to a proper cure to the predicament West identifies by pointing out to a robust understanding of legal theory and thus of the distinctive contribution legal scholars can make in normative debates.
Download the article from SSRN at the link. 

December 7, 2012

New Issue of Law and Humanities Is Available

The new issue of Law and Humanities is available.

Law and Humanities
Volume 6. Number 2. 2012

Hart Publishing is very pleased to let you know that the 2nd issue of the 2012 volume of Law and Humanities is now available online.

Please see below for the table of contents, information about online access and details on how to subscribe.


Editorial by Paul Raffield and Gary Watt
Free to view – please click on the link below:

Oaths, Credibility and the Legal Process in Early Modern England: Part One
Barbara J Shapiro

‘Observe how parts with parts unite / In one harmonious rule of right’: William Blackstone’s Verses on the Laws of England
Matthew Mauger

Human Rights and Radical Universalism: Aimé Césaire’s and CLR James’s Representations of the Haitian Revolution
Philip Kaisary

Dickens and the National Interest: On the Representation of Parties in Bleak House
Jan-Melissa Schramm

Truth, Law and Forensic Psychiatry in Truman Capote’s In Cold Blood
Svein Atle Skålevåg

To access this issue online, read the abstracts and purchase individual papers please click here:

To subscribe and for further information about Law and Humanities, please click here:

December 6, 2012

Judges On Reality TV

Cynthia Bond, John Marshall Law School, has published "We, the Judges": The Legalized Subject and Narratives of Adjudication in Reality Television at 81 UMKC Law Review 1 (2012). Here is the abstract.

At first a cultural oddity, reality TV is now a cultural commonplace. These quasi-documentaries proliferate on a wide range of network and cable channels, proving adaptable to any audience demographic. Across a variety of types of “reality” offerings, narratives of adjudication — replete with “judges,” “juries,” and “verdicts”— abound. Do these judgment formations simply reflect the often competitive structure or subtext of reality TV? Or is there a deeper, more constitutive connection between reality TV as a genre and narratives of law and adjudication?
This article looks beyond the many “judge shows” popular on reality TV (e.g. Judge Judy, etc.) to examine the law-like operations of the genre itself, and how legal narratives dovetail with the increasingly participatory nature of our “convergence culture.” In addition, this article examines the ideologies these shows represent regarding community, and particularly the role of the legalized subject within this community. How does the prevalence of images of judges and judging on reality TV fit into previous notions that media audiences empathize with legal processes by identifying with an “on-screen” jury, embodying shared, democratic decision-making? Do these shows play on pop cultural narratives of conflicts between judges (within the show) and juries (the viewing audience)? Finally, do such shows empower spectators by engaging them in democratic “knowledge collectives,” or instead represent a neo-liberal “technology of governmentality”? Ultimately, through its enactment of a range of adjudicatory and quasi-legal narratives, reality TV emerges as a highly regulatory space. Law is a compelling narrative for recirculation in a contemporary media culture marked by contestations of authority and community, as the interrelationships between cultural producer, text, and cultural consumer shift and are redefined.
Download the article from SSRN at the link.

December 4, 2012

Law, Religion, and the Peace of Westphalia

Gordon A. Christenson, University of Cincinnati College of Law, has published 'Liberty of the Exercise of Religion' in the Peace of Westphalia in volume 21 of Transnational Law & Contemporary Problems (2012). Here is the abstract.

This essay takes a fresh look at the backdrop and structure of toleration and religious freedom in the Peace of Westphalia of 1648 and in the American Constitution, with special focus on a recent unanimous Supreme Court decision of first impression. That important decision protects inner church freedoms in ecclesiastical employment, the so-called "Ministerial Exception" to federal and state employment discrimination laws.
The Westphalian system of sovereign states spread widely after ending the Christian wars in Europe, beginning with the American Declaration of Independence. I ask whether there is any link between provisions for free exercise of religion in the Treaty and the Religion Clauses of the American Constitution and compare them structurally. The roots of religious tolerance worked out in the structure and practice of the Peace of Westphalia might have special relevance within the global community today, when ubiquitous tensions between liberty of conscience, secular ideology, and religion are faced by most sovereign states, certainly in the United States.
Download the essay from SSRN at the link. 

December 3, 2012

Law In Modernity: A New Book From Routledge

Reading Modern Law: Critical Methodogies and Sovereign Formations
Edited by Ruth Buchanan, Stewart Motha, and Sundhya Pahuja

Published May 3, 2012 by Routledge-Cavendish.

Reading Modern Law identifies and elaborates upon key critical methodologies for reading and writing about law in modernity. The force of law rests on determinate and localizable authorizations, as well as an expansive capacity to encompass what has not been pre-figured by an order of rules. The key question this dynamic of law raises is how legal forms might be deployed to confront and disrupt injustice. The urgency of this question must not eclipse the care its complexity demands. This book offers a critical methodology for addressing the many challenges thrown up by that question, whilst testifying to its complexity. The essays in this volume - engagements direct or oblique, with the work of Peter Fitzpatrick - chart a mode of resisting the proliferation of social scientific methods, as much as geo-political empire. The authors elaborate a critical and interdisciplinary treatment of law and modernity, and outline the pivotal role of sovereignty in contemporary formations of power, both national and international. From various overlapping vantage points, therefore, Reading Modern Law interrogates law's relationship to power, as well as its relationship to the critical work of reading and writing about law in modernity.

A Conference on Eighteenth Century Portuguese Studies

From Jose Calvo Gonzalez, news of another interesting conference: this one beginning today in Lisbon and running through the 5th of December. It's the Sociedade Portuguesa de Estudos do Século XVIII. COLÓQUIO INTERNACIONAL (Lisboa, 3-5 de Dezembro de 2012). More here at Professor Calvo's blog,  Iusrisdictio-Lex Malacitana.

November 29, 2012

Box Scores

When I see a blog like Overthinking It, I know I'm not alone. Excellent. Courtesy of Lowering the Bar, I bring you Overthinking It's graph on wins and losses (that is, convictions, plea bargains, and The Dreaded Acquittals) on Law and Order. The post, aptly named "The Law and Order Database: Cracking the Code," is devoted to Logged and Ordered: The Complete Series, and breaks down the results of the TV gang's 20 years of chasing felons. Enjoy.

Hollywood and the Death Penalty

David Ray Papke, Marquette Law School, has published Muted Message: Capital Punishment in the Hollywood Cinema as Marquette Law School Legal Studies Paper No. 12-25. Here is the abstract.

Contemporary Hollywood films seem at first glance to be opposed to capital punishment. However, this article’s consideration of five surprisingly similar films (Dead Man Walking, The Chamber, Last Dance, True Crime, and The Life of David Gale) finds they do not truly and consistently condemn capital punishment. Instead of suggesting that the practice of capital punishment is fundamentally immoral and should in general be ended, the films champion only worthy individuals on death row and delight primarily in the personal growth of other characters who attempt to aid the condemned. In the end, Hollywood offers only a muted message regarding the on-going use of capital punishment.
Download the paper from SSRN at the link.

November 28, 2012

Studying Injustice

A new book from Eric Heinze, Queen Mary, University of London. Here is the description from the publisher's website.

The Concept of Injustice challenges traditional Western justice theory. Thinkers from Plato and Aristotle through to Kant, Hegel, Marx and Rawls have subordinated the idea of injustice to the idea of justice. Misled by the word’s etymology, political theorists have assumed injustice to be the sheer, logical opposite of justice.

Heinze summons ancient and early modern texts, philosophical and literary, with special attention to Shakespeare, to argue that injustice is not primarily the negation, failure or absence of justice. It is the constant product of regimes and norms of justice. Justice is not always the cure for injustice, and is often its cause.

Selected Table of Contents

Introduction;  1. Nietzsche’s Echo; PART ONE: Classical Understandings; 2. Injustice as the Negation of Justice; 3.Injustice as Disunity; 4. Injustice as Mismeasurement; PART TWO: Post-Classical Understandings; 5.Injustice as Unity; 6. Injustice as Measurement; 7. Measurement and Modernity; Works Cited.

About the Author

Eric Heinze is Professor of Law and Humanities at Queen Mary, University of London. His most recent publications on legal theory have appeared in Oxford Journal of Legal Studies, Ratio Juris, International Journal of Law in Context, Legal Studies, Journal of Social & Legal Studies, Canadian Journal of Law and Jurisprudence, Law & Critique, Law & Literature, and Law & Humanities.

Published October 2012| 232 pages | Hardback: 978-0-415-52441-4| $120.00 $96.00
                                    For more information, please visit:

Use discount code ERJ94 to save 20% off when you order online.

*  discount valid on hardback and paperback formats only

November 27, 2012

Women In Nineteenth Century English Literature: A New Book

New from Oxford University Press:

Hilary M. Schor, Curious Subjects:  Women and the Trials of Realism (December, 2012). $65.00.


Below is a description of the book's contents from the publisher's website.

While nineteenth-century literary scholars have long been interested in women's agency in the context of their legal status as objects, Curious Subjects makes the striking and original argument that what we find at the intersection between women subjects (who choose and enter into contracts) and women objects (owned and defined by fathers, husbands, and the law) is curiosity. Women protagonists in the novel are always both curiosities: strange objects worthy of our interest and actors who are themselves actively curious--relentless askers of questions, even (and perhaps especially) when they are commanded to be content and passive. What kinds of curiosity are possible and desirable, and what different kinds of knowledge do they yield? What sort of subject asks questions, seeks, chooses? Can a curious woman turn her curiosity on herself?" Curious Subjects takes seriously the persuasive force of the novel as a form that intervenes in our sense of what women want to know and how they can and should choose to act on that knowledge. And it shows an astonishingly wide and subtly various range of answers to these questions in the British novel, which far from simply punishing women for their curiosity, theorized it, shaped it, and reworked it to give us characters as different as Alice in Wonderland and Dorothea Brooke, Clarissa Harlowe and Louisa Gradgrind. Schor's study provides thought-provoking new readings of the most canonical novels of the nineteenth century-- Hard Times, Bleak House, Vanity Fair, Daniel Deronda, among others--and pushes well beyond commonplace historicist accounts of British culture in the period as a monolithic ideological formation. It will interest scholars of law and literature, narratology, and feminist theory as well as literary history more generally.

Thanks to Simon Stern of the University of Toronto Faculty of Law and Department of English for alerting me to this title.

Early American Lawyers and Their Books

Alison L. LaCrois, University of Chicago Law School, has published The Lawyer's Library in the Early American Republic in Subversion and Sympathy: Gender, Law, and the British Novel in the Eighteenth and Nineteenth Centuries (Martha C. Nussbaum and Alison L. LaCroix, eds., Oxford University Press, 2013).

This essay appears in a volume titled Subversion and Sympathy: Gender, Law, and the British Novel in the Eighteenth and Nineteenth Centuries (Martha C. Nussbaum and Alison L. LaCroix, eds.) (forthcoming, Oxford University Press, 2013). The essay explores the role that fiction played in the early republican project of building American nationhood. Many eighteenth- and nineteenth-century American statesmen and jurists – including such prominent thinkers as John Adams, Thomas Jefferson, John Marshall, and Joseph Story – were avid readers of fiction. The vast majority of the novels they read were written by English authors; moreover, many of those authors were women. For example, among Marshall’s surviving papers is a letter in which he chided Story for not including Jane Austen among the great novelists that Story listed in an 1826 address to Harvard’s Phi Beta Kappa chapter. Story had, however, cited Maria Edgeworth, Fanny Burney, and Ann Radcliffe in his address, and his son later recalled that his father had enjoyed Austen’s novels. “This is emphatically the age of reading,” Story told his Phi Beta Kappa audience. And, he added, “[m]an no longer aspires to an exclusive dominion in authorship.” For founding-era thinkers such as Adams and Jefferson, novel-reading provided a way for Americans to participate in transatlantic culture and to hone a republican moral sensibility. For the early-nineteenth-century jurists Marshall and Story, fiction offered an opportunity to engage with emotions such as sympathy and to participate in a public sphere that brought men and women together, as both authors and readers, in a conversation that connected politics, law, and literary culture. These producers of legal theory were also consumers of fiction, gentlemen of letters who immersed themselves in female novelists’ work not as a means of escape, but because those novels offered insights into what they regarded as crucial political questions of individual sentiment and national character.
Download the essay from SSRN at the link.

November 26, 2012

Incarceration, Racial Justice and "The Wire"

Frank Rudy Cooper, Suffolk University Law School, has published Hyper-Incarceration as a Multidimensional Attack: Replying to Angela Harris through The Wire, at 37 Washington University Journal of Law and Policy 67 (2011). Here is the abstract.

Angela Harris's article in this symposium makes a valuable contribution to our understanding of hyper-incarceration. She argues, quite persuasively, that the term “gender violence” should be understood broadly to include men’s individual and structural violence against other men. She then considers what we ought to do about the incredible increase in incarceration, mostly of racial minority men, over the past 40 years. She terms this “mass incarceration” and argues that it is best dealt with by a shift from “restorative justice” to “transformative justice.” Whereas restorative justice emphasizes bringing together various elements of the community to repair the harm done by a crime, transformative justice goes further by emphasizing the racist and heteropatriarchal forces leading to the crime and preventing the healing of both the harm doer and communities.

It is hard to criticize Angela Harris. She is, after all, a founder of critical race theory and critical race feminism. Her article in this symposium demonstrates the depth of her insights and clarity of her expression. Nonetheless, I want to challenge Harris on one point and extend her analysis on another. First, for reasons I will explain, I believe it is crucial for scholars to start referring to so-called “mass incarceration” as “hyper-incarceration.” Second, I want to extend Harris's analysis of the multidimensionality of identities by means of a case study of how class operates during the drug war era, as depicted in the critically acclaimed HBO drama The Wire.
To establish those arguments, this essay proceeds as follows. Part I explains the importance of the term “hyper-incarceration.” Part II defines a multidimensional masculinities approach to the relationships between identities, culture, and law. Part III uses an analysis of The  Wire to argue that identity theorists should pay greater attention to capitalism. Part IV concludes that addressing hyper-incarceration requires simultaneously reducing the stigma attached to racial minority men and rebuilding economic structures in the inner-city.
Download the article from SSRN at the link. 

November 23, 2012

"All Celebrity Voices Are Impersonated...Poorly"

The Hollywood Reporter brings us its choices for the top 10 legal disclaimers offered up by the movies. Ok, they're not for real. Well, some of them aren't for real. I think. (Is the X-Files one legit?) But, they're amusing to contemplate.

November 21, 2012

Critical Race Theory Conference at Yale, February 8-9, 2013

 From Yale Law School, an announcement of a forthcoming Conference on Critical Race Theory:

Critical Race Theory: From the Academy to the Community Conference
Yale Law School
127 Wall Street
New Haven, CT 06511
February 8-9, 2013

Registration is now live!


Following the success of the last critical race theory conference held at Yale in 2009, Yale Law School is proud to host the Critical Race Theory: From the Academy to the Community conference on Friday, February 8, 2013 and Saturday, February 9, 2013. The conference is sponsored by the Zelia & Oscar Ruebhausen and Debevoise & Plimpton Student Fund at Yale Law School, the American Studies Department, the Public Humanities Initiative, and La Casa Cultural at Yale College.

The conference will convene scholars, legal practitioners, and community leaders to examine the ways in which critical race theory can be applied to scholarly work, legal practice, social justice advocacy and community based movements. Confirmed speakers include Devon Carbado, Sumi Cho, Kimberlé Crenshaw, Lani Guinier, Cheryl Harris, Tanya Hernandez, Charles Lawrence, Gary Peller, and Gerald Torres.

In 2009, Yale Law School hosted a highly successful conference that explored the insights of critical race theory, as applied to immigration law. We look forward to continuing these conversations and exploring the role of CRT in other contexts at this February’s conference.
For more information about programming, travel, accommodations, and more, please visit our website at Any questions or comments may be directed to

November 20, 2012

International Conference On Shakespeare and Montaigne

José Calvo Gonzalez, University of Malaga Faculty of Law, sends word of a conference on Shakespeare and Montaigne to be held at the Universidade Federal Fluminense on November 26, 2012. More here.

Law and Language in the Macau Legal Regime

Salvatore Casabona has published The Law of Macau and its Language: A Glance at the Real 'Masters of the Law' at 4 Tsinghua China Law Review 223 (2012). Here is the abstract.
This article discusses the biligualistic legal system in Macau. The discussion begins with the outline of the history of the Macanese bilingualism. The author then examines the crucial distinction between the language in the law and the law in the language. By analogy to European Community and other bilingual legal systems, this article identities the characteristic of Macanese mulitlingualism. This article concludes with suggestions about a new approach and the role of universities in resolving the matter.
Download the article from SSRN at the link. 

Ungendering Law and Literature

Greta Olson, Justus-Liebig-University Giessen, has published Law is not Turgid and Literature not Soft and Fleshy: Gendering and Heteronormativity in Law and Literature Scholarship at 36 Australian Feminist Law Journal 65 (2012). Here is the abstract.

This essay uncovers a pattern of gendering in Law and Literature research that has contributed to limited understandings of the disciplines, taken singly, as well as to the projection of a heteronormative script on their relations to one another. This includes the troping of literature as feminine and that of law as masculine, and the emplotment of their relationship as that of an initially antagonistic yet ultimately satisfying heterosexual romance. Accordingly, actual forms of discrimination towards women are confused with contradictory images of a feminized literature as an empathetic, eloquent and morally superior woman. This idealized image of literature is figured as initially suffering under the regime of rationalistic, masculinized law but then reforming ‘him’ through the power of love. To posit law as a man and literature as a woman is to elide their similarities and reify their differences. After assembling evidence of gendering in US American Law and Literature work and to a lesser degree in British critical jurisprudence, the essay outlines historical reasons for why it is problematic to think of literature as morally uplifting and feminine and law as ‘brutish’ and masculine. Instances of ethical and contingent applications of law speak against any monolithic narrative that suggests that literature is inherently more morally conscious. Literature has proven to be a privileged forum for doing the police work of enforcing the gender binary as well as for maintaining other social divisions. In closing, the essay describes strategies to degender Law and Literature in an effort to move the conversation forward.
Download the article from SSRN at the link. 

November 19, 2012


Ravulapati Madhavi, The ICFAI Foundation for Higher Education, has published Merciless Thoughts on Mercy Killing: A Critique, at 2 The IUP Law Review 11 (July 2012). Here is the abstract. 

The nature is known for the coexistence of opposites — latent and patent. Ugliness is shrouded by beauty, cruelty shrouded by kindness, love concealing hatred and life concealing death. Life and death are two ends of a scale. It is unfair to consider life as a respectful end and death as a disrespectful one. Both are same. Probably because of this, in Greek language, the two components — EU and THANATONA — have given birth to euthanasia. The term appears to sound highly controversial, bitter and condemned by a major chunk of the human race throughout the globe. Passions rise high, emotions explode and acrimonious debates alarm the serenity of humanity when the word ‘mercy killing’ is uttered. Yes, the subject is controversial because it is interesting and intriguing too. Interesting as it envelops multiple facets of social, economic and moral and ethical life, and intriguing because of its subtle clash with religion and faith trends. There is an adage that “a thing ceases to be a thing of interest when it ceases to be a thing of controversy.” It is true for ‘mercy killing.
The full text is not available from SSRN.

Western Water Law and United States Legal History

David Schorr, Tel Aviv University Faculty of Law, has published The Colorado Doctrine: Water Rights, Corporations, and Distributive Justice on the American Frontier (Yale University Press, 2012). Here is the introduction.
The water-law doctrine of prior appropriation is today widely misunderstood, largely due to ignorance of the social and legal context in which it arose. It has become associated with a set of values -- the preference for private over common property, the privatization of the public domain, the facilitation of markets in natural resources -- that have little to do with the ideology behind the decision or how contemporaries saw it. Analysis of the available historical evidence makes it quite clear not only that the doctrine of appropriation as developed in nineteenth-century Colorado was viewed at the time as striking a blow at private property in order to advance distributive justice, but also that it had that very effect as its central goal.
While the primary purpose of this book is to challenge the received wisdom regarding the ideology of western water law, relying primarily on an examination of contemporary sources, the significance of the argument goes beyond revision of the historical record for its own sake. Historians and theoreticians of property rights have tended to agree that the primary concern driving the rejection of riparian doctrine in favor of appropriation in the western United States was economic growth, part of that nineteenth-century “release of individual creative energy” by American law, to use Willard Hurst’s phrase or the common law’s characteristic tendency toward efficiency, as some economic analysts of the law would have it. The claims advanced in this book, stressing considerations of widespread distribution of property as the primary motivating factor in the adoption of appropriation law, challenge these consensus views regarding property law and American legal history in general. In doing so, they raise the question as to whether considerations of distributive justice have been given their due in study of these fields. Given the value American legal culture places on arguments from past practice and precedent, they also challenge current paradigms of natural-resource law.
Download the introduction from SSRN at the link.

November 16, 2012

The Price of Words

Xing Li, Stanford Univesrity Department of Economics, Megan MacGarvie, Boston University Department of Finance & Economics and National Bureau of Economic Research, and Petra Moser, Stanford University Department of Economics & National Bureau of Economic Research have published Dead Poets' Property - The Copyright Act of 1814 and the Price of Books in the Romantic Period. Here is the abstract.
Although copyright is a subject of intense debate, there is little empirical evidence on the effects of stronger rights on the price of intellectual assets. This paper exploits a differential increase in the length of copyright in favor of books by dead authors under the 1814 U.K. Copyright Act to investigate the causal effects of longer copyright terms on price. Difference-in-differences analyses, which compare the price of new editions of books by dead and living authors before and after 1814, indicate an 8 percent increase in price for each additional year of copyright, and an elasticity of price with respect to longer copyright of 0.9. Results are robust to controlling for book age, author, and time fixed effects, as well as genre fixed effects and controls for literary quality. They are also robust to excluding books by famous authors who died after 1814, and to excluding books by recently deceased authors. Placebo regressions reveal no significant effects for books by dead authors that did not benefit from longer copyrights. Complementary analyses confirm that books become cheaper as they approach the end of copyright.
Download the paper from SSRN at the link. 

Religion and the Duality of Law and Literature

Nahel N. Asfour, University of Vienna Faculty of Law, has published Law and Literature: Jewish and Christian Models at 6 Pólemos: Journal of Law, Literature and Culture  263 (2012).
Here is the abstract.

Law and literature is the study of the utilities of the reciprocal ties between the two domains. Classic approaches divide the field into two main patterns of study. One is the literary approach to law, i.e. the study of law as literature, which primarily implements literary theory and criticism in legal texts. The second is law in literature, which investigates literary expressions of law and the various ways law is depicted in literature.
Of late, a new paradigm labeled “literature alongside law” has been suggested. This paradigm neither puts the emphasis on one field nor utilizes one for the service of the other. Rather, it investigates both fields, viewed one beside the other, as interwoven cultural expressions of a complex fabric of the human condition. This duality exposes the various ties infrequently noted within the confines of the former classic approaches. This paradigm is closely tied and evoked by an old yet interesting source of scholarly inspiration: the Jewish rabbinic combination of Halacha and Aggadah. They can be appreciated as the religious parallel model of their paradigm and of contemporary law and literature scholarship as a whole.
Halacha is the body of religious legal norms and bending interpretations as expounded by Jewish Rabbis. Aggadah is the body of narratives, stories, myths, advice, morals and parables transmitted traditionally alongside Halacha. Rabbis, as the early scholars of law and literature, pondered the nature of this duality and the prospective worth of its inseparability. In comparison, Christianity and Canon law seem to reject this model and any equal treatment of literature alongside law in its central works. Due to various historical and theological reasons, this duality was denounced. While the Jewish model has been widely investigated, no similar attempts have been made as regards the Christian model.
This paper seeks to present these two religious models within the confines of law and literature scholarship, to compare both and, especially, to ponder possible meanings for the repulsing tension amid law and literature in the Christian model. The article concludes that law and literature is a two-sided coin, much like the two religious models. One seeks better truth in the constant dialogue of law and literature. The other preserves its truth in the polar and repulsing tension of law and literature. These two models ought to be equally valued for law and literature scholarship.
The full text is not available from SSRN. 

November 13, 2012

Life Imitates Art

CNN points out the link between the developing real-world David Petraeus affair and the ABC television show Scandal, which stars Kerry Washington as Olivia Pope, the fictional character based on Judy Smith, a crisis management consultant who works in the D.C. area. Ms. Smith, a co-producer of the show, is now representing Jill Kelley, one of the individuals mentioned as a friend of General Petraeus.

What would Ms. Smith do when a client comes calling with a problem? Here's her take on the issues raised in a recent episode of the show, posted to the ABC website November 9th.

The Origins of Law

Richard J. Ross, University of Illinois College of Law; University of Illinois Urbana-Champaign Department of History, has published Distinguishing Eternal from Transient Law: Natural Law and the Judicial Law of Moses at 217 Past and Present 79 (November 2012).

This essay examines two interlinked efforts in early modern Europe and New England to distinguish legal provisions valid across different societies and time periods from those that were local and transitory and therefore not compulsory in the present. Consider, first, the judicial laws of Moses. A minority of Protestants, whom I will call the “Mosaic legalists,” tried to ascertain which Old Testament judicial ordinances were no longer obligatory because they were particular to the Jewish commonwealth, and which were eternally-valid “appendices” to the natural law and Decalogue. The challenge of differentiating the perpetual from the local also occupied early modern students of the law of nature. Whether one believed that God impressed natural law upon the world or that people deduced natural law from a limited set of first principles such as self-preservation and sociability, one faced the problem of distinguishing immutable natural precepts from rules that arose only to address passing issues in a specific territory.
Natural lawyers and Mosaic legalists did not use the same techniques for separating eternal and transient precepts. Each had its own “rules of recognition” (to borrow a helpful modern concept). My essay compares natural lawyers’ and Mosaic legalists’ rules of recognition, their ways of telling immutable from transitory precepts. In this, it goes against the dominant tendency of modern scholarship to approach the Mosaic legalists and natural lawyers separately rather than in tandem. Reading the two in unison highlights how the projects faced common intellectual challenges. In particular, both natural lawyers and Mosaic legalists used stadial theories of historical change and both implied that immutable law should be convenient under present circumstances. Both used temporally- and contextually-sensitive categories to locate an “eternal” law. But these emphases, if pushed too far, threatened the natural lawyers’ and Mosaic legalists’ enterprise, so both groups developed stabilizing conventions.
The rules of recognition mattered greatly as controversialists deployed natural and Mosaic law in fights over political oaths and allegiance, usury, sabbatarianism, church governance, and a wide range of other issues. Over and again, early modern actors asked the perennial question: What was God, through scripture and nature, commanding us to do? The Mosaic legalists’ and Protestant natural lawyers’ rules of recognition helped answer this most pressing of questions.
Download the article from SSRN at the link. 

November 12, 2012

The Legal History of Adhesion Contracts

Cheryl B. Preston, Brigham Young University Law School, and Eli McCann have published Lewellyn Slept Here: A Short History of Sticky Contracts and Feudalism at 91 Oregon Law Review 130 (2012).

This article explores definitions of “adhesion” contracts and discusses their dangers, particularly online, where they are most susceptible to abuse. It begins with foundational contract principles, specifically the transition from feudalism to freedom of contract and the dramatic shift in the meaning of “freedom of contract” over time. This article proceeds through the history of adhesion contracting, from early posted notices and over a century of judicial fracas about whether and when to enforce contract terms printed on tickets, bills of lading, receipts, and so forth. The discussion then continues with the developments of the twentieth century, marked by the promulgation of the Uniform Commercial Code (“UCC”) and Restatement (Second) of Contracts, the consumer protection efforts of the 1960s and 1970s, and the erosion of the unconscionability doctrine and other boundaries in which adhesion contracts were contained. The last section considers the consequences of the resulting imbalance and the need to rethink the enforcement of online contracts. We conclude that the claim of economic benefits has been allowed to swallow the whole of contract values and that some return to balance is essential.
Download the article from SSRN at the link. 

November 9, 2012

Updated Fairy Tales In Popular Culture

The Guardian's Film Blog discusses fairy tale films, their popularity, and their meaning here. Compare with this 2011 discussion of fairy tale tv on US networks from Reuters.

November 8, 2012

Happy Birthday, Bram Stoker!

Google has devoted a Google Doodle to you! The Christian Science Monitor discusses the five best Bram Stoker novel film adaptations here. More about Mr. Stoker himself here from the Monitor, a discussion of his effect on pop culture here in the Washington Post. Vampires have come of age: check out this True Blood site here.

A short bibliography of materials on vampires and law:

Bradney, Anthony, "The Morally Ambiguous Crowd": The Image of a Large Law Firm in "Angel," 56 Northern Ireland Legal Quarterly 21 (2005).

Owen, A. Susan, Vampires, Postmodernity, and Postfeminism: Buffy the Vampire Slayer, 27 Journal of Popular Film and Television 24 (1999).

Sutherland, Sharon, Piercing the Corporate Veil--With a Stake?: Vampire Imagery and the Law, in Vampires: Myths and Metaphors of Enduring Evil (Peter Day, ed., Rodopi, B.V., NY, 2006).


Slayage: The Online Journal of the Whedon Studies Association.

Virginia Woolf's Theory of Harm

Honni Van Rijswijk, University of Technology Sydney, has published Neighbourly Injuries: Proximity in Tort Law and Virginia Woolf’s Theory of Sufferings  in volume 20 of Feminist Legal Studies (2012). Here is the abstract.
2012 marks the 80th anniversary of Donoghue v Stevenson, a case that is frequently cited as the starting-point for a genealogy of negligence. This genealogy starts with the figure of the neighbor, from which, as Jane Stapleton eloquently describes, a “golden thread” of vulnerability runs into the present (Stapleton 2004, 135). This essay examines the harms made visible and invisible through the neighbour figure, and compares the law’s framework to Virginia Woolf’s subtle re-imagining and theorisation of responsibility in her novel Mrs Dalloway (1925). I argue that Woolf critiques and supplements the law’s representations of suffering. Woolf was interested in interpreting harms using a framework of neighbourly responsibility, but was also critical of the kinds of proximities recognised by society. Woolf made new harms visible within a framework of proximity: in this way, we might think of Woolf’s work as theorizing a feminist aesthetic of justice, and as providing an alternate genealogy of responsibility to Donoghue v Stevenson.
Download the article from SSRN at the link. 

November 5, 2012

Law, Race, and Inheritance in Nineteenth Century America

From Oxford University Press:

Oxford University Press is thrilled to announce the recent publication of Family Money: Property, Race, and Literature in the Nineteenth Century by University of Kentucky Professor of English Jeffory A. Clymer. The inaugural volume in the new Oxford Studies in American Literary History series, Family Money combines nuanced literary interpretations with significant legal cases to reveal a shared preoccupation with the financial quandaries emerging from interracial sexuality in nineteenth-century America. At stake, Clymer shows, were the very notions of family and the long-term distribution of wealth in the United States. For more information or to order, please see Oxford University, or your local bookstore.

Jeffory Clymer explores the histories of formerly enslaved women who tried to claiminheritances left to them by deceased owners; the household traumas of mixed-race slaves; post-Emancipation calls for reparations; and the economic fallout from anti-miscegenation marriage laws.  Authors ranging from Nathaniel Hawthorne, Frank Webb, and Harriet Beecher Stowe to Charles Chesnutt and Lydia Maria Child recognized that intimate interracial relationships took myriad forms—sexual, marital, coercive, familial, pleasurable, and painful—often simultaneously.  Their fiction confirms that the consequences of these relationships for nineteenth-century Americans meant thinking about more than the legal structure of racial identity.  The populace was plagued with a host of vexing, interrelated questions:  Who could count as family (and when)? Who could own property (and when), and how was racial difference imagined?  Throughout the book, Clymer’s arguments are bolstered by salient examples from U.S. legal history, such as the law of partus sequitur ventrem and cases like Gary v. Stevenson and State v. Mann.   
 A searching cultural history that draws on law, literature, and economics, Family Money reveals the powerful effects interracial sexuality had on life in nineteenth-century America and its dramatic long-term consequences. 

Irony (and Tragedy) At Sea

The New York Times brings us the captain of H.M.S. Bounty's decision to leave port in anticipation of an oncoming hurricane, in retrospect an unfortunate decision, and the subsequent rescue of its sailors. Coast Guard members found fourteen of fifteen of the crew alive in turbulent Atlantic waters, but have abandoned the search for Captain Robin Walbridge. Here, a link to video of some of the rescue of the Bounty crew. More coverage of the Bounty sinking, including a report that the Coast Guard will investigate Captain Walbridge's decision to set sail, here from the Los Angeles Times. The seaman who died, Claudene Christian, reportedly a descendant of Fletcher Christian, the leader of the Bounty mutiny, sent a message to a friend before the replica Bounty set sail indicating she was uneasy both about the condition of the ship and about the decision to leave port.

The Bounty was built for use in the original film Mutiny on the Bounty, starring Marlon Brando (1962). It has been featured in other films as well, including the Pirates of the Caribbean series (as "The Black Pearl."). More here from the Christian Science Monitor.

November 2, 2012

An Enemy of the People

November 2: Science Friday features a discussion of a new production of Henrik Ibsen's An Enemy of the People, starring Richard Thomas. More here.

November 1, 2012

"Mr. District Attorney" Today

Ross E. Davies, George Mason University School of Law; The Green Bag, has published The Popular Prosecutor: Mr. District Attorney and the Television Stars of American Law, at 16 Green Bag 2d 61 (Autumn 2012). Here is the abstract.
What follows at pages 69-108 is the second installment of Mr. District Attorney on the Job (1941) – the only book of adventures of the fictional prosecutor who starred on radio from the late 1930s to the early 1950s. (He was known only as “Mr. District Attorney” until 1952, when he also became “Paul Garrett.”) He was tremendously popular with the listening public in those days, as leading modern scholars of law and popular culture have noted. Yet, unlike the heroes of some other golden-age radio dramas – Perry Mason, for example, or Joe Friday of Dragnet – Mr. District Attorney did not successfully transition to television. Moreover, in the years since television superseded radio, other fictional lawyers have come to the fore on-screen – Arnie Becker (of L.A. Law), Patty Hewes (of Damages), Charles Kingsfield (of The Paper Chase), Ben Matlock, Ally McBeal, Jack McCoy (of Law & Order), Horace Rumpole (of the Bailey), and the like. Thus, having survived and not thrived for only a few years on television, Mr. District Attorney has been largely forgotten and is today no more than a radio fossil. His place in the minds of lawyers has been taken over by the moderns. Or has it? Who are, really, the fictional television lawyers whose presence in our legal culture is so significant that it translates into appearances in the works of judges, practitioners, and legal scholars? The numbers presented on the following pages are not sufficient on their own to support unassailable answers to those questions, but they might be enough to prompt some preliminary thoughts. [NOTE: For a copy of the story referred to in this article (pages 69-108), please contact the author.]
Download the article from SSRN at the link. 

October 31, 2012

Scalia On Strings

Gilbert Kaplan interviews Justice Antonin Scalia for New York's WQXR. Read and listen to "The Violin Dreams of Supreme Court Justice Antonin Scalia" here.

October 29, 2012

The Law and Politics Movement After 1968

Martine Kaluszynski, University of Grenoble, Institute of Political Studies Grenoble, has published The Changing Face of Law after the Events of 1968… or When Law Meets Politics: Introduction to the Mouvement Critique du Droit, at 2 Oñati Socio-Legal Series (2012).

The aim of this paper is to analyse the origins, the development and the long-term impact of the Critical Legal Movement (Mouvement Critique du Droit). Created some thirty years ago, this Movement resulted from the collective mobilisation of legal experts and political scientists across French cities (e.g., Lyon, Montpellier, Saint-Etienne, Toulouse and Paris). Referring mainly to Marxist theories, the Critical Legal Movement argued that law is deeply embedded in its social and its political context, and should thus be analysed through an interdisciplinary approach. Building on this critical perspective, the Movement developed a scientific project and teaching methods, which both differed from and opposed the way in which law was traditionally taught and studied in French Law Faculties. The Movement itself no longer exists, but it nevertheless had far-reaching consequences on the study of law. Indeed, the Critical Legal Movement was an opportunity to successfully explore alternative teaching methods and to create high quality research institutions.

Este artículo pretende analizar los orígenes, el desarrollo y el impacto a largo plazo del Movimiento Crítico del Derecho (Mouvement Critique du Droit). Creado hace unos treinta años, este movimiento surgió de la movilización colectiva de juristas y politólogos de diferentes ciudades francesas (como Lyon, Montpellier, Saint-Etienne, Toulouse y París). Haciendo referencia principalmente a teorías marxistas, el Movimiento Crítico del Derecho argumentaba que el derecho está profundamente arraigado en su contexto social y político, y por lo tanto se debe analizar desde un enfoque interdisciplinario. Partiendo de esta perspectiva crítica, el movimiento desarrolló un proyecto científico y métodos educativos, que diferían y se oponían al sistema de enseñanza y estudio del derecho en las facultades de derecho francesas. El movimiento en sí mismo ya no existe, pero sin embargo, tuvo consecuencias de gran alcance en el estudio del derecho. En efecto, el Movimiento Crítico del Derecho supuso la oportunidad de explorar con éxito métodos alternativos de enseñanza y favoreció la creación de instituciones de investigación de alta calidad.
Download the article from SSRN at the link. 

October 27, 2012

Death Upon the Wicked Stage

The New York Times' Charles Isherwood reviews "A Gentleman's Guide To Love and Murder," now playing at the Hartford Stage.

Chasing Mystery

Several extremely interesting articles from the Guardian: Lawrence Scott discusses "Murder on the Dance Floor," (images of death in/while dancing), Mark Lawson takes us on a literary tour of crime fiction, and Alex Godfrey talks to Zachary Quinto about horror on television. Do we seek out artistic images and themes of crime, horror, and death because they seem so far removed from our lives, or because they do not? Yet death is with us always and ever, and crime more and more. Is that part of the horror? 

October 26, 2012

H. L. A. Hart and Human Nature

Péter Cserne, University of Hull, has published Between 'Metaphysics of the Stone Age' and the 'Brave New World': H.L.A. Hart on the Law's Assumptions About Human Nature, in Jurisprudence and Political Philosophy in the 21st Century: Reassessing Legacies 71 (Miodrag Jovanović and Bojan Spaić eds., Frankfurt: Peter Lang 2012).

This paper analyses H.L.A. Hart’s views on the epistemic character of the law’s assumptions about human nature. Hart suggests that the assumptions behind legal doctrines typically combine common sense factual beliefs, moral intuitions, and philosophical theories of earlier ages with sound moral principles, and empirical knowledge. An important task of legal theory is to provide a ‘rational and critical foundation’ for these doctrines. This does not only imply conceptual clarification in light of an epistemic ideal of objectivity but also involves legal theorists in ‘enlightenment’ about empirical facts, ‘demystification’ of metaphysical obscurities, and substantive normative, including moral reasoning. Hart also argued, in a way that is somewhat surprisingly similar to Fuller's, that embedded in legal doctrines of causation and responsibility are assumptions about human agency and personhood that are potentially in conflict with naturalistic theories about human behaviour.
The full text is not available from SSRN.  

October 25, 2012

A New Book On Justice and Injustice

New from Routledge

The Concept of Injustice
By Eric Heinze
Published October 24th 2012 by Routledge--218 pages

The Concept of Injustice challenges traditional Western justice theory. Thinkers from Plato and Aristotle through to Kant, Hegel, Marx and Rawls have subordinated the idea of injustice to the idea of justice. Misled by the word’s etymology, political theorists have assumed injustice to be the sheer, logical opposite of justice. Heinze summons ancient and early modern texts, philosophical and literary, with special attention to Shakespeare, to argue that injustice is not primarily the negation, failure or absence of justice. It is the constant product of regimes and norms of justice. Justice is not always the cure for injustice, and is often its cause.

Judicial Pragmatism: The Early(er) Years

Robert F. Blomquist, Valparaiso University Law School, has published Early American Judicial Pragmatism, 1793-1949 as Valparaiso University Legal Studies Reseach Paper No. 12-13. Here is the abstract.

After the writings of Charles S. Peirce and William James became popular among intellectuals in the early twentieth century, American judges started to use pragmatic parlance to decide cases. Starting with a trilogy of opinions by Supreme Court of Florida Justice Thomas M. Shackelford, a variety of prominent jurists deployed pragmatic analysis in their opinions. These judges included Benjamin Cardozo, Learned Hand, Robert Jackson, and Jerome Frank. American judicial theorists can learn a lot from this early use of pragmatism language in judicial opinions written before 1950.
Download the paper from SSRN at the link. 

Examining "The Princess and the Pea"

Linda Ross Meyer, Quinnipiac University School of Law, has published Suffering and Judging in The Princess and the Pea, at 30 Quinnipiac Law Review 489 (2012).

This brief essay explores Hans Christian Andersen's story "The Princess and the Pea" for how it illuminates issues of suffering, compassion, victimization, political leadership, and mercy.
Download the article from SSRN at the link. 

October 22, 2012

On Any Wednesday

Bloomberg Law has launched a new video series, Stealth Lawyers, which features attorneys who have found new and different ways to use their law degrees away from the courtroom and the conference table. Ed Adams is in charge of the series, which features such entrepreneurs as lawyer turned baker Warren Brown of CakeLove and attorney/crossword puzzle creator Will Shortz, and historical figures such as Vladimir Lenin and Francis Scott Key. New videos make their appearance on Wednesdays.

Pop culture lawyers who wander off in other directions (but still make use of their law degrees) include Fairly Legal's Kate Reed (she's no longer an attorney, but a mediator still attached to her late father's law practice), and Linda O. Johnston's Kendra Ballantyne (formerly an associate at a white shoe L.A. firm, now a pet sitter, even though she's been rehabilitated and could go back to practice). These mysteries are published by Berkley Press.

Images and Law

Jessica M. Silbey, Suffolk University Law School, has published Images in/of Law, at 57 New York Law School Law Review 171 (2012/13). Here is the abstract.
The proliferation of images in and of law lends itself to surprisingly complex problems of epistemology and power. Understanding through images is innate; most of us easily understand images without thinking. But arriving at mutually agreeable understandings of images is also difficult. Translating images into shared words leads to multiple problems inherent in translation and that pose problems for justice. Despite our saturated imagistic culture, we have not established methods to pursue that translation process with confidence. This article explains how images are intuitively understood and yet collectively inscrutable, posing unique problems for resolving legal conflicts that demand common and shared language. It canvasses the law and film scholarship, provides examples of film evidence that renders judgment problematic, and predicts future legal terrain in which visual images will feature prominently. It concludes by calling for a theory of aesthetics in order to analyze and interpret the visual images that will take center stage in so many contemporary legal debates.
Download the article from SSRN at the link. 

October 19, 2012

Hans Kelsen and Modern Law

Christoph Kletzer, King's College London School of Law, has published Primitive Law. Here is the abstract.
This paper discusses the nature and functioning of modern law along Kelsenian lines, starting from a very instructive example of Ancient Germanic Law regulating the legal effects of murder.
Download the paper from SSRN at the link. 

October 17, 2012

The Influence of Native American Legal Scholarship On the Courts

Matthew L. M. Fletcher, Michigan State University College of Law, has published American Indian Legal Scholarship and the Courts as MSU Legal Studies Research Paper No. 10-25. Here is the abstract.

Is legal scholarship influential on the courts? More particularly, is American Indian legal scholarship influential on the courts? In the 1960s, 1970s, and 1980s, tribal interests enjoyed historic success in the courts. While they didn’t win every case, tribal interests prevailed far more than they ever had prior to these few decades. Since the advent of the Rehnquist and Roberts Courts, however, those successes have once again become few and far between.
American Indian legal scholarship, which rose from virtual nonexistence in the 1950s to significance in the late 1960s and 1970s, appears to have been very influential on the courts during the period of success. Every decade since the 1960s has seen a dramatic increase in the number of law review articles on the subject of American Indian law. Courts cited to an incredible percentage of the Indian law articles published in the 1960s, 1970s, and early 1980s, but that citation pattern has leveled off since the 1980s. The lower courts continue to cite American Indian legal scholarship, but in a more limited manner. In the Supreme Court, Indian law scholarship has all but disappeared.
This short paper, prepared for the Henderson Center’s Fall 2012 Symposium, “Heeding Frickey’s Call: Doing Justice in Indian Country,” presents the data on the citation patterns of American Indian legal scholarship and reviews Professor Frickey’s call as a means of introducing the conference.
Download the paper from SSRN at the link. 

Ritual Eating and Drinking and Chinese Law

Mary Szto, Hamline University School of Law, has published Contract in My Soup: Chinese Contract Formation and Ritual Eating and Drunkenness. Here is the abstract.

Scholars and practitioners alike recognize that contract formation in today’s China requires more than an understanding of black letter law, but knowledge of cultural practices. There is much literature about the legal non-enforceability of contracts, and instead the critical importance of guanxi (relationships), mianzi (face), and interpersonal harmony. However, there is little mention about eating and drinking rituals. These rituals often are the heart of building trust and negotiating terms in China. They may not only be the formation of the contract but the foundation for performance and enforcement as well. However, often these rituals involve drunkenness, which sometimes has turned fatal for contracting parties. Binge drinking is reaching epidemic proportions in China and employers, including law firms, openly recruit persons who can drink heavily. “Ganbei” is a popular toast which means to empty one’s cup. This article explores what I call ganbei contracts, the phenomenon of eating and drinking rituals in contract formation. I first discuss current Chinese contract black letter law, then contemporary ritual eating and drinking, the ancient roots of ritual practice, and then guidelines for proper contemporary practice consonant with a rule of virtue and law. Since time immemorial, ritual eating and drinking have legal meaning in China.
Download the paper from SSRN at the link.