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. 

And the Winner Is!

The Hollywood Reporter offers up a list of some of the best (US) election movies, but check out the comments! Many readers think there are serious omissions from the list. What are your election movie favorites?

October 16, 2012

Hip Hop Norms

Jan M. Smits, Maastrict University Faculty of Law, Maastricht European Private Law Institute, University of Helsinki, Center of Excellence in Foundations of European Law and Polity, Andrei Ernst, Steven Iseger, and Nida Riaz, have published If You Shoot My Dog, I Ma Kill Yo’ Cat: An Enquiry into the Principles of Hip-Hop Law. Here is the abstract.

This article investigates how the law is perceived in hip-hop music. Lawyers solve concrete legal problems on basis of certain presuppositions about morality, legality and justice that are not always shared by non-lawyers. This is why a thriving part of academic scholarship deals with what we can learn about laymen’s perceptions of law from studying novels (law and literature) or other types of popular culture. This article offers an inventory and analysis of how the law is perceived in a representative sample of hip-hop lyrics from 5 US artists (Eminem, 50 Cent, Dr. Dre, Ludacris and Jay-Z) and 6 UK artists (Ms Dynamite, Dizzee Rascal, Plan B, Tinie Tempah, Professor Green and N-Dubz). After a methodological part, the article identifies four principles of hip-hop law. First, criminal justice is based on the age-old adage of an eye for an eye, reflecting the desire to retaliate proportionately. Second, self-justice and self-government reign supreme in a hip-hop version of the law: instead of waiting for a presumably inaccurate community response, it is allowed to take the law into one’s own hands. Third, there is an overriding obligation to respect others within the hip-hop community: any form of ‘dissing’ will be severely punished. Finally, the law is seen as an instrument to be used to one’s advantage where possible, and to be ignored if not useful. All four principles can be related to a view of the law as a way to survive in the urban jungle.
Download the paper from SSRN at the link.

Ghyslaine is shocked, shocked! at the title of this piece.

October 13, 2012

Muslims As the "Other" In Popular Culture

Peter Beaumont wonders whether the television series "Homeland" oversteps the bounds in its efforts to present entertaining television. In particular, he is concerned about the image of Muslims on the show.He writes in part:

I admit I have no idea how the story arcs in Homeland will develop and what surprises are in store. What I do know is how both Arabs and Islamists have been portrayed thus far as violent fanatics, some of whom are powerful and influential infiltrators. As someone who has spent much time in the Middle East, I find the depictions not only crude and childish but offensive. There is more to it than the portrayal of individuals. For Homeland presents an odd and unbelievable image of relationships between countries and identities in the region, where Palestinians, Iraqis, Saudis all share an agenda regardless of background, culture and history. Should any of this matter in a fictional series? The answer is yes.
The reality is that what Homeland portrays is a peculiar view of the Islamic world, one rooted, perhaps, in its genesis as an Israeli drama, where the view of the surrounding neighbourhood is more paranoid and defensive. It matters for this reason. Popular culture both informs and echoes our prejudices. How we portray the "other" – those whom we fear or are suspicious of – reinforces cultures of conflict. In some respects it has always been thus. The author and journalist Robert Winder detailed in his book Bloody Foreigners how Charles Dickens, in creating the character of Fagin for Oliver Twist, refashioned a real social problem. The boys' "rookeries" were run by Italian gangmasters in Clerkenwell's Little Italy, but in keeping with contemporary suspicion and hostility to Jews Dickens made Fagin Jewish – something he later regretted. Indeed, popular literature, plays, films and television have often been crude in their representation of perceived enemies – Jews, Germans, communists, Irish "terrorists" and now Muslims, amplifying concerns that may be based in some reality like the phenomenon of al-Qaida terrorism to represent it as some vague, universal truth.

More here from Mr. Beaumont's article in the Guardian.

October 11, 2012

The Art of Justice: A New Book Demonstrates a Judge's Skill at Picturing Justice

New from Hart Publishing, a book on The Art of Justice


The Art of Justice
The Judge's Perspective
Ruth Herz

This book presents a unique and intriguing collection of drawings of courtroom scenes. Entering the courtroom wearing his robe, Judge Pierre Cavellat literally had a secret up his sleeve. Hidden in it were pens and pencils, which he used to sketch the scenes he observed from his bench. Throughout a 40-year judicial career in one of France's more important regional appellate courts, Cavellat produced hundreds of illuminating drawings and paintings depicting the court proceedings but also the main actors: the prosecutors, defence counsel, his fellow judges, the defendants, witnesses, policemen, the general public, as well as the courtroom itself and its architecture. The resulting vivid and uncensored impressions give an unprecedented insight into how a judge perceives his profession and the institution of justice as a whole. Given the scarcity of written autobiographies by judges, and their reluctance to lay bare their inner feelings and thinking, the images reveal, in a candid and immediate fashion, the deeply hidden emotions, ambiguities and fantasies of a judge going about his work. The author, a judge herself, interprets the images through the lens of her own judicial experience, exploring how judges think and act and how their thinking is constructed through their education, professional training, gender and class. In doing so she exposes how personal background, history and experience play an additional, sometimes conflicting, role in 'judgecraft'. While relevant to both practitioners and students of law this book should also appeal to the wider public.

To read a few pages from The Art of Justice please click on the link below:

Ruth Herz is a former judge at the Court of Cologne. She has been a visiting fellow of the Centre for Criminology at Oxford University and is currently a visiting professor at Birkbeck College, University of London.

September 2012     128pp     Hbk     9781849461276    
RSP: £35 / €45 / US$54.95 / CDN$70

Order Online:

If you have any enquiries please contact Hart Publishing Ltd, 16C Worcester Place, Oxford, OX1 2JW, UK Telephone Number: 01865 517530; Fax Number: 01865 510710; Website: www.hartpub.co.uk; E-mail: mail@hartpub.co.uk

October 7, 2012

October 2, 2012

Maori Heritage and IP Law

Susan Corbett, Victoria University of Wellington, has published Māori Cultural Heritage and Copyright Law: A Balancing Exercise at 6 New Zealand Intellectual Property Journal 916 (2012). Here is the abstract.

The digitisation of both traditional Māori cultural heritage and also more recent items of Māori provenance held in the collections of New Zealand museums, was the subject of a recent research project funded by the New Zealand Law Foundation. This article considers the practices of museums in regard to the digitisation of collection items of Māori provenance and analyses them in the context of the relevant legal and policy environment in New Zealand; in essence an environment that is comprised of, respectively, the Copyright Act 1994, the principles of the Treaty of Waitangi Te Tiriti o Waitangi, and the theory of cultural property law.

Download the article from SSRN at the link. 

Insane Delusions In "The Double"

Amy Ronner, St. Thomas University School of Law, has published Does Golyadkin Really Have a Double? Dostoevsky Debunks the Mental Capacity and Insane Delusion Doctrines at 40 Capital University Law Review 195 (2012). Here is the abstract.

In Dostoevsky's "The Double," one of the great, but lesser known Russian novels, protagonist Golyadkin suddenly meets his identical twin, who ostensibly wreaks havoc on his life.
While "The Double" appears to have nothing to do with the law of wills and trusts and has not been redacted into any law school case book, I now suggest what might irritate some staunch traditionalists -- namely that Dostoyevsky should claim an entire chapter on the mental capacity doctrine. It is this article's narrow thesis that "The Double" debunks, or, at least sheds doubt, on some basic mental capacity and insane delusion concepts. On a broader level, this article, diveded into four parts, explores Dostoevsky's proposition that in many cases, we (as lawyers or mere mortals) are incapable of determining unsound mind and insane delusions.
Part II focuses on wills and trusts because it boasts of having a sacrosanct policy in favor of testamentary freedom. Despite that policy's stronghold, courts have in some cases limited or eradicated a decedent's ability to direct the disposition of property upon death. One instance is where contestants argue lack of mental capacity or use a doctrine called "insane delusion" or "monomania" to invalidate estate plans that either omit them entirely or slight them as beneficiaries. Although in wills' law, sound mind and insane delusion are legal constructs, this article, borrowing from the psychiatric definitions of "bizarre" and "non-bizarre" delusions, cordons them to Dostoevsky's message in "The Double."
Part III, shifting from law to literature, summarizes the story in "The Double" and the raging debate over not just the novel's meaning, but also Golyadkin's mental condition. This part suggests that the controversy surrounding this novel belies the fact that in "The Double" we cannot ascertain what is real and what is hallucination. This part, linking Dostoevsky's thesis to the current mental capacity doctrines, suggests that Golyadkin, like many testators, would baffle our courts if his psyche were under the will-contest microscope. In fact, the uncertainty in "The Double" resembles the disquieting dubiousness of such contests, particularly in litigation in which individuals are alleged to have "non-bizarre" delusions. This part goes further than just complaining, however, but, taking a stab at a solution, proposes the sort of doctrinal revamping, which would heed Dostoevsky's wise admonition.
Part IV concludes by revisiting the one (or two Golyadkins) who disclose(s) the most deleterious effect of our current capacity law and demonstrates why it is so crucial to make change.
Download the article from SSRN at the link.