April 30, 2012

Thucydides and Law

Darien Shanske, University of California Hastings College of the Law, has published Thucydides and Lawfulness, in Thucydides--A Violent Teacher? History and Its Representations (Georg Rechenauer & Vassiliki Pothou eds; 2011). Here is the abstract.
For the classical Athenians, legitimate law is public and yet usually arises from no person in particular, with the rule-proving exception being the laws that emerge from famous (and often mythical) lawgivers such as Solon. This notion of law that is public, yet indeterminately grounded, though commonly encountered in classical literature (e.g., in the Antigone), is hard to grasp. If the laws of Athens are public and controlled by the demos, both ideas that are central elements of Athenian democratic ideology, then how can it be sensible that the laws often, and often in particularly importance instances, are discussed as having an indistinct provenance? Such a paradoxical notion of law would seem to encourage lawlessness, though in fact what we know about Athens indicates the reverse. The Athenian historian Thucydides provides an exemplary demonstration of the nature of the Athenians’ paradoxical approach to the law. This is surprising. For one thing, Thucydides’ account, like that of other elite authors (like Plato or Aristophanes), seems to emphasize the lawlessness of Athens. Furthermore, at various points Thucydides’ narrative suggests that it is a simple thing to predict when laws will hold and when they will not; in particular, they will not hold in moments of extreme distress. It does not matter if they are ancient or unwritten or public. And yet a close reading of Thucydides demonstrates that lawfulness sometimes obtains even under the worst of circumstances, even and especially in Athens. It may have been surprising to Thucydides, as it seemed to have been to other Athenians and Greeks generally, but in a concrete way the Athenian polis was more resilient and more lawful than perhaps any other (and perhaps precisely because of the intensity of the Athenian attachment to its paradoxical notion of law). This point is easily missed, as there is a lack of an explicit explanation or theoretization of this phenomenon in Thucydides or elsewhere. Moreover, the nature of this insight is not such as to give much comfort or guidance to the would-be political reformer, but the strangeness of this approach only makes it more important.
Download the essay from SSRN at the link. 

April 27, 2012

Leo Tolstoy, Ernest H. Crosby, and Shakespeare

José Calvo González, University of Malaga, has published Lev N. Tolstói & E. H. Crosby:Sobre la geografía de la recepcíon literaria y jurídico-social Tolstiana, con apunte acerca del reformista social norteamericano Ernest Howard Crosby (1856-1907). at 2 Revista Europea de Historia de las Ideas Políticas y de las Instituciones Públicas 87 (February 2012). Here is the abstract.
Geography of the receipt of the work and thought of Tolstoy, presenting his map in Europe, Asia and USA. Interspersed references to the reception among jurists. Particular care in the U.S. figure of Ernest Howard Crosby and his contribution to the spread of tolstoism, and about his criticism and social reform. Recovery and analysis, in line Law and Literature, of one of the texts of Crosby (Shakespeare's attitude toward the working classes, 1903).
The full text is available at the link.

"Crime and Punishment" and False Confessions

Rinat Kitai-Sangero, Academic Center of Law & Buriness, Ramat Gan, Israel, has published Can Dostoyevsky's Crime and Punishment Help Us Distinguish between True and False Confessions? at 9 Ohio State Journal of Criminal Law 231 (2011). Here is the abstract.
Dostoyevsky's Crime and Punishment is also a story about confessions. Raskolnikov, who committed a double murder, and Nikolay, an innocent suspect, each confesses to the same crime. An analysis of Raskolnikov’s and Nikolay's confession demonstrates the complexity of motives that drive the guilty and the innocent alike to confess and points to the distinction between true and false confessions. Finally this novel supports the conclusion that the accused should be required to provide significant details of the crime as a requirement for relying on his or her confession.
Download the article from SSRN at the link. 

April 24, 2012

The Public Uses of Poetry

Tom Clark, Victoria University, has published Public Poeisis: Theorising Contemporary Civic Uses of Poetry in Australia and the United States. Here is the abstract.

Uses of poems and extracts from poems for ceremonial or ritual purposes within civic discourse reveal the inherently aesthetic nature of all political language. We can read in these civil and stately appropriations of poetry a desire for validation or embodiment of the aesthetic qualities of the events they embellish, and of the public and political agendas those events carry. This paper argues that poetry as public language reveals how public language is poetry. It illustrates that proposition by a critical comparison of excerpts from Australia’s annual ANZAC Day dawn service and from the oath of office ceremony for USA President Barack Obama in 2008.
Download the paper from SSRN at the link. 

National Poetry Month

The Gallagher Law Library notes that April is National Poetry Month and devotes a post on its blog to law and poetry here.

April 23, 2012

Very Assisted Insemination

Kara W. Swanson, Northeastern University School of Law, has published Adultery by Doctor: Artificial Insemination, 1890–1945, at 87 Chicago-Kent Law Review 591 (2012). Here is the abstract.

In 1945, American judges decided the first court cases involving assisted conception. The challenges posed by assisted reproductive technologies to law and society made national news then, and have continued to do so into the twenty-first century. This article considers the first technique of assisted conception, artificial insemination, from the late nineteenth century to 1945, the period in which doctors and their patients worked to transform it from a curiosity into an accepted medical technique, a transformation that also changed a largely clandestine medical practice into one of the most pressing medicolegal problems of the mid-twentieth century. Doctors and lawyers alike worried whether insemination using donor sperm was adultery by doctor, producing illegitimate offspring. Drawing upon the legal and scientific literatures, case law, popular sources and medical archives, I argue that insemination became identified in medicine and law as a pressing problem at mid-century after decades of quiet use because of the increasing success of the technique, increasing patient demand, and increasing use -- three interrelated trends that led to increasing numbers of babies whose origins were “in the test tube.” In examining the history of a medical procedure becoming a legal problem, I also trace the development of a medical practice in the face of legal uncertainty and the shifting control of the medical profession over assisted conception. I argue that doctors modified the way they treated patients in response to perceived social and legal condemnation of artificial insemination, keeping tight control over all aspects of the procedure, but that doctors’ persistence in meeting patient demand for fertility treatments despite such condemnation helped make artificial insemination into a medicolegal problem. Once it became identified as a medicolegal problem, artificial insemination became the subject of a broad social discussion, in which medical voices did not receive automatic deference, and medical control was challenged.
Download the article from SSRN at the link. 

April 20, 2012

Theater of Justice

Law students are turning life into art at the University of Maryland School of Law.They are using the real life trial and subsequent appeal of Michael Austin as the basis for a play, (IN)JUSTICE for Michael Austin, and will perform it on April 23 at the law school. Mr. Austin, convicted and sentenced to life in prison for murder and armed robbery in 1975, but released in 2001 and pardoned in 2003, will appear in the play. More here in an article by Karen Sloan of the National Law Journal. More here and here about Mr. Austin's release and pardon.

April 19, 2012

Some Newly Published Books of Interest

Some newly published books of interest: 

Andrews, Lori, I Know Who You Are and I Saw What You Did: Social Networks and the Death of Privacy (Free Press, 2012).
Cascardi, Anthony J., Cervantes, Literature, and the Discourse of Politics (University of Toronto Press, 2012).

Chong, Sylvia, Sin Huey, The Oriental Obscene: Violence and Racial Fantasies in the Vietnam Era (Duke University Press, 2012).

Cohen, Lara Langer, The Fabrication of American Literature: Fraudulence and Antebellum Print Culture (University of Pennsylvania Press, 2012).
Feenstra, Pietsie, New Mythological Figures in Spanish Cinema: Dissident Bodies Under Franco (Amsterdam University Press, dist. University of Chicago Press, 2012).

Kahn, Abraham Iqbal, Curt Flood in the Media: Baseball, Race, and the Demise of the Activist Athlete (University Press of Mississippi, 2012).
Kaplan, Paul, Murder Stories: Ideological Narratives in Capital Punishment (Lexington Books, 2012).

Maurer, Sara L., The Dispossessed State: Narratives of Ownership in Nineteenth-Century Britain and Ireland (Johns Hopkins University Press, 2012).

McDermott, Stacy Pratt, The Jury in Lincoln’s America (Ohio University Press, 2012).
Pamboukian, Sylvia A., Doctoring the Novel: Medicine and Quackery From Shelley To Doyle (Ohio University Press, 2012).

Pippin, Robert B., Fatalism in American Film Noir: Some Cinematic Philosophy (University of Virginia Press, 2012).

Starn, Orin, The Passion of Tiger Woods; An Anthropologist Reports on Golf, Race, and Celebrity Scandal (Duke University Press, 2012).

Takacs, Stacy, Terrorism TV: Popular Entertainment in Post-9/11 America (University Press of Kansas, 2012).

Towns, W. Stuart, Enduring Legacy: Rhetoric and Ritual of the Lost Cause (University of Alabama Press, 2012). Discusses the emergence of the “lost cause” mythology of the Southern identity after the War between the States.

April 17, 2012

Women's Rights To Property Within Marriage In Seventeenth and Eighteenth Century England

Allison Anna Tait, Yale Law School, has published Unhappy Marriages and Unpaid Creditors: Chancery’s Enforcement of a Wife’s Right to Property within Marriage in Seventeenth- and Eighteenth-Century England. Here is the abstract.

In a modern era in which wives can own and manage their financial assets, the idea that a wife could not hold legal claim to her own property seems archaic. Measuring the distance of women’s progress, historical accounts of married women’s property usually begin with statutory enactments that gave married women baseline property rights starting in America in the 1830s and 1840s and in England in the 1870s. A form of married women’s property existed before these statutes were on the books, however, beginning in late sixteenth-century England with a special type of trust called the separate estate which was created for the benefit of a married woman before, during, or after marriage. This article is an attempt to recover the nature as well as the significance of the separate estate. A new and detailed reading of the main corpus of separate estate cases – a set of cases that has long been overlooked and deserves to be unearthed – reveals how the separate estate was the forerunner to more modern forms of married women’s property and a key component in the development of married women as juridical beings and economic actors. The goals of this article are to recalibrate the history of married women’s property and deepen our understanding of the opportunities as well as the obstacles that have stood – and still stand – in the way of women seeking to be rightsholders.
Download the paper from SSRN at the link.

Language Usage In Revolutionary Russian Law

Tatiana Borisova, National Research University Higher School of Economics, has published The Legitimacy of the Bolshevik Order, 1917-1918: Language Usage in Revolutionary Russian Law as Higher School of Economics Research Paper No. 05/LAW/2012.

The article describes and analyzes the legislative politics of revolutionary regimes in Russia in 1917-1918. The author aims to demonstrate the political meaning of the form of early Soviet legislation and its legitimizing effect. The revolutionary legislators often used specific language in the new laws as a vehicle of legitimacy, i.e. to make the people comply. The two main types of legal language used by the Bolsheviks can be interpreted from the perspective of different types of legitimacy. The revolutionary strategy used propagandistic legislation, written in the language of lay people, which urged them to act according to the new law. It can be seen as a request for acts of the people to legitimize the soviets. On the contrary, the traditional strategy employed old bureaucratic means of writing and distributing legislation to the local soviets. The language used by this strategy was closed to the understanding of a lay audience and implied traditions of obeying the law written in familiar legal language, which in turn implied rational/legal legitimacy. The second strategy had already become dominant after the first months of the Bolshevik revolution. This observation demonstrates that from the very beginning of their rule, Soviet leaders approached legislative policy from a technocratic point of view, which determined the further development of Soviet legal theory and practice.
Download the paper from SSRN at the link.

April 15, 2012

Bernie's Weekends

Joe Rhodes muses on Bernie, a new film based on the murder of his aunt, who lived and died in the small town of Carthage, Texas. Mr. Rhodes sees both humor and tragedy in the event, which touched both the members of his family and residents of the town. More here in today's New York Times. The film stars Shirley MacLaine as Aunt Marge, the wealthy victim, Matthew McConaughey as the district attorney, and Jack Black as Bernie Tiede, the funeral director who befriended and then killed Marge, and proceeded to spend a great deal of her fortune before Marge's son and some police officers found her body in her freezer. Yes, under the chicken pot pies. Here's coverage of the trial and verdict from the Amarillo Globe News.

The Tax Man Cometh (Refiled)

Poetry for the season, from the New York Times. What, no Ogden Nash? See here.

April 10, 2012

Naziism and the Geert Wilders Trial

Robert A. Kahn, University of St. Thomas School of Law (Minnesota), has published Who’s the Fascist? Uses of the Nazi Past at the Geert Wilders Trial as University of St. Thomas Legal Studies Research Paper No. 12-10. Here is the abstract.

This essay looks at how, during his trial, Geert Wilders and his opponents used references to the Nazi era – including but not limited to the Holocaust – to frame debates over Muslim immigration, Wilders himself, and the acceptability of hate speech trials. The Wilders trial is especially interesting because each side sought to call the other a “fascist.” For Wilders, the Quran was a fascist book, an Islamic Mein Kampf. To his opponents, Wilders was a “prototypical” fascist, one who spoke to the gut not the mind. But perhaps the strongest use of the Nazi past involved victims. If a well-established Jewish community faced the Nazis largely without the support of their fellow Dutch citizens and today faces continued anti-Semitism, what should Muslim newcomers expect? On a broader level the multiple references to World War II, fascism, and the Holocaust in the Wilders case show how nearly seventy years after the Allied forces declared victory the Nazi past continues to play a major role in European discourse over hate speech laws.
Download the paper from SSRN at the link.

April 3, 2012

2012 International Osnabrück Summer Institute for the Cultural Study of the Law

From Peter Schneck, Chair of American Studies, University of Osnabrück, Germany

*Culture, Rights, Identity: Interfaces between the Humanities and the Law*

International Summer Institute on the Cultural Study of the Law



The fourth annual International Summer Institute on the Cultural Study of the Law will be held from August 6 to 18, 2012 at the University of Osnabrück, Germany. Hosted by the Institute of English and American Studies (IfAA), the Summer Institute seeks to bring together advanced graduate, doctoral, and postdoctoral students of the humanities and/or the law from around the world to promote and examine the interdisciplinary study and research of law and culture.

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

Participating faculty in this year's Summer Institute include:

*Rosemary J. Coombe (York University, Toronto) *Helle Porsdam (University of Copenhagen) *Fiona Macmillan (Birkbeck School of Law, University of London) *Joseph Slaughter (Columbia University, New York)

* Kay Schaffer (University of Adelaide)

with more faculty to be announced in the upcoming weeks.

The Institute will offer a total of four workshops for 30-35 international participants (doctoral, post-doctoral and advanced M.A. - see below for

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

* The relation between human rights and cultural rights

* Historical development and current debates about culture as heritage, property and as a resource and its legal definition and regulation (including concepts such as copyright, intellectual property and


* The cultural presence and representation of the law and the role of culture in the representation and dissemination of the concept of rights (e.g. law and literature, life writing and human rights, visual culture and rights rhetoric)

*Participant Eligibility*

The Summer Institute aims at advanced graduate, doctoral, and postdoctoral students from various academic fields, whose research interests and projects are situated at the interface between law and the humanities and who are concerned with a better understanding of the interdependence of law and culture.

Even though the Institute strongly invites students from a broad variety of disciplines and academic backgrounds, it focuses almost exclusively on questions and issues related to research done in the humanities and legal studies.

Doctoral candidates in literature, the law, the arts, the humanities, and the related social sciences are invited to apply, as are advanced students pursuing a J.D. or its equivalent (such as the L.L.B). Young scholars or junior faculty members who have received a Ph.D. or corresponding degree in the last five years are also eligible. While applications by doctoral/post-doctoral students are prioritized, the Summer Institute also encourages applications from advanced Master students about to conclude their studies and with a strong interest in interdisciplinary research.

There are openings for 30-35 students to participate in the Summer Institute.

Due to its international audience, the Summer Institute will be completely conducted in English. It does not offer language instruction classes, either in German or in English.

*Application Process*

Applicants should complete:

* An application form:


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

* An up-to-date curriculum vitae.

Students interested in taking part in the Summer Institute should submit their applications no later than April 30, 2012. Detailed information about the Institute, the workshops, international faculty, admission and fees can be found at:



Please direct all inquiries and questions to the main coordinator of the Institute at


Interdisciplinary Summer Workshop for Junior Faculty, Stanford, California

From Maeva Marcus, Director, Institute for Constitutional History, New-York Historical Society and The George Washington University Law School

Interdisciplinary Summer Workshop for Junior Faculty

July 8-14, 2012

Stanford, California


Sponsored by the Institute for Constitutional History

with the Stanford Constitutional Law Center


It is an obvious truth that the drafters of the 1787 Constitution had a number of basic assumptions about the workings of what they called a “Republican Form of Government” and that the institutions established in Philadelphia reflected these assumptions. To be sure, some of them, such as equal voting power in the Senate or the basis of representation in the House (i.e., the 3/5 rule), were the result of compromises, in which the losers (like James Madison with regard to the Senate) viewed the result as a “lesser evil” (to the greater evil of no Constitution at all) rather than a positive good. Still, almost all of the institutions were defended by proponents of the Constitution, the most prominent, of course, being the collective Publius. To a remarkable degree, America in 2012 continues to be governed through the structures established in 1787.

The purpose of the seminar is quite simple: To look at the justifications offered, particularly at the Philadelphia Convention and ensuing ratification debates (including, of course, The Federalist) and to assess the degree to which we find them persuasive over two centuries later. The seminar is not about “constitutional interpretation” as that topic is usually defined. That is, we will not be looking at the parts of the Constitution that have been significantly litigated and, therefore, “interpreted,” over the years, such as the assignment of powers to Congress in Article One, Section Eight. Rather, we will be looking at examples of what in my forthcoming book I call “the Constitution of Settlement” (in contrast to the endlessly-litigated “Constitution of Conversation”)—bicameralism, the particular organization of power in the Senate, the presidential veto ,and the process of constitutional amendment, among others.

Readings will be taken from Professor Levinson’s book, Framed: America’s 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012); The Federalist; The Founders’ Constitution; Akhil Reed Amar,America’s Constitution: A Biography; and John Dinan, The American State Constitutional Tradition.


Sanford Levinson is the W. St. John Garwood Jr. Centennial Chair in Law, University of Texas Law School, and Professor of Government, University of Texas at Austin. Among other books, he has written: Constitutional Faith(Princeton U. Press, 1988, 2nd ed. 2011), and Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It) (Oxford U. Press, 2006, pb. ed. 2008). He is also the co-editor of a widely used casebook, Processes of Constitutional Decision Making (5th ed. 2006). He has written over 350 articles in law reviews as well as more general venues. He was elected to the American Academy of Arts and Sciences in 2001.

STIPENDS AND SUPPORT: Participants will receive accommodation at the Munger Graduate Residence on the campus of Stanford Law School and a modest stipend for meals. Participants will also receive a travel reimbursement up to $250. Workshop participants are expected to attend all sessions and engage in all program activities.

ELIGIBILITY AND APPLICATION PROCEDURE: The summer workshop is designed for university instructors who now teach or plan to teach courses in constitutional studies, including constitutional history, constitutional law, and related subjects. Instructors who would like to devote a unit of a survey course to constitutional history are also welcome to apply. All university-level instructors are encouraged to apply, including adjuncts and part-time faculty members, and post-doctoral fellows from any academic discipline associated with constitutional studies (history, political science, law, anthropology, sociology, literary criticism, etc.).

To apply, please submit the following materials: a detailed résumé or curriculum vitae with contact information; syllabi from any undergraduate course(s) in constitutional studies you currently teach; a 500- word statement describing your interest in both constitutional studies and this workshop; and a letter of recommendation from your department chair or other professional reference (sent separately by e-mail or post). The application statement should address your professional background, any special perspectives or experiences you might bring to the workshop, and how the workshop will enhance your teaching in constitutional studies.

THE DEADLINE FOR APPLICATIONS IS MAY 1, 2012. Applications should be sent via electronic mail to MMarcus@nyhistory.org. Successful applicants will be notified soon thereafter.


Maeva Marcus

Director, Institute for Constitutional History

New-York Historical Society and

The George Washington University Law School

(202) 994-6562



April 1, 2012

Acting In the World

A review of a biography, Love, Fiercely, of Edith and Isaac Newton Stokes, who gave generously and thought broadly, about life and the future. Edith championed the idea of the kindergarten, and Newton, an architect, helped bring about the passage of the (New York) Tenement House Act, 1901.