December 17, 2013

Extratextual Sources and Constitutional Originalism

Lawrence B. Solum, Georgetown University Law Center, has published Originalism and the Unwritten Constitution at 2013 University of Illinois Law Review 1935. Here is the abstract.

In his book, America’s Unwritten Constitution, Akhil Reed Amar contends that to properly engage the written Constitution, scholars and laymen alike must look to extratextual sources: among them America’s founding documents, institutional practices, and ethos, all of which constitute Amar’s “unwritten Constitution.” In this Article, I argue that contemporary originalist constitutional theory is consistent with reliance on extraconstitutional sources in certain circumstances. I establish a framework for revaluating the use of extratextual sources. That framework categorizes extratextual sources and explains their relevance to constitutional interpretation (the meaning of the text) and constitutional construction (elaboration of constitutional doctrine and decision of constitutional cases). I conclude by applying the framework to a question posed by Akhil Amar: Can vice presidents preside over their own trial upon impeachment? A negative answer to this question is consistent with an originalist constitutional theory that carefully cabins the use of extratextual sources in constitutional interpretation and construction.
Download the article from SSRN at the link. 

Remembering the Emancipation Proclamation

Martha S. Jones, University of Michigan Law School, has published History and Commemoration: The Emancipation Proclamation at 150 at 3 Journal of the Civil War Era 452 (2013).

Marking the 150th anniversary of the Emancipation Proclamation encourages debate about the past. January 1, 1863, does not stand out as a singular event, the commemoration of which silences the past. Instead, these articles capture some of the rich albeit messy past that was the Civil War and emancipation. Recovering that process, one that included congress members, generals, soldiers, sailors, and enslaved people, resituates the Emancipation Proclamation as history rather than myth. We learn how the proclamation was related to Congress’s emancipatory legislation and how its implementation relied on the resistance of formerly enslaved insurgents. The analysis of new sources, including visual culture, means that historical interpretation will continue to evolve. Transnational approaches suggest how the proclamation’s influence was far-reaching in the realms of law and state-building. And while the season of commemoration may draw to a close, historians history and commemoration will have many opportunities to collaborate on exhibitions and films, the sorts of spaces in which confrontations between history and fiction may find a productive tension. Commemoration need not rest on silence.
The full text is not available from SSRN. 

December 16, 2013

Baseball and Legal Reasoning

John Tehranian, Southwestern Law School, has published It'll Break Your Heart Every Time: Flood v. Kuhn, (Baseball) Romanticism and the Fallibility of Courts. Here is the abstract.

The recent blockbuster 42 romanticizes the role of major league baseball in the civil rights movement. But Jackie Robinson’s shattering of the color line in 1947 represented only the first step in the game’s evolution. With considerably less fanfare, Curt Flood took the next step. Flood’s ill-fated challenge to the infamous reserve clause landed him before the United States Supreme Court in 1972. It’ll Break Your Heart Every Time casts new light on Flood’s underappreciated legal struggle by presenting a meta-meditation on his lawsuit, the fallibility of judges and the power of the National Pastime’s grand mythology.
When the Supreme Court’s infamous decision in Flood v. Kuhn, 407 U.S. 258 (1972), is cited for any one proposition, it is not for its key holding — the reaffirmation of baseball’s antitrust exemption. Rather, it has become exhibit A for the risks of slavish adherence to stare decisis. In the four decades since its pronouncement, the holding has never been completely overruled — either by the Supreme Court or Congress. And while the decision itself has received widespread condemnation elsewhere, legal, economic and policy analysts have generally failed to appreciate a critical first-order question about the case: how it happened and whether, in other circumstances, it could happen again. This Essay address these issues by examining the profound role of the National Pastime’s mythology and its spell-binding romanticism in the making of bad law. In the process, the Essay also raises broader jurisprudential questions about the nature of legal reasoning and the powerful lure of epistemological narratives, particularly in the struggle for civil rights.
Download the paper from SSRN at the link. 

Child Abuse and Legal Intervention In Early Nineteenth Century Quebec

Ian C. Pilarczyk, Boston University School of Law, has published 'To Shudder at the Bare Recital of Those Acts': Child Abuse, Family, and Montreal Courts in the Early Nineteenth Century in IX Essays in the History of Canadian Law 370 (G. Blaine Baker and Donald Fyson eds., Toronto, University of Toronto Press for the Osgoode Society for Canadian Legal History, 2013).

This paper uses archival and other primary sources to reanimate the judicial response to child abuse by family members in Montreal for the period 1825-1850. In a period before the operation of child protection agencies, the records reveal a tentative but growing engagement with issues related to child abuse and a limited judicial response to impose limitations on parental authority. Parents and guardians were prosecuted and imprisoned for a range of offences, including assault, aggravated assault, ill-usage, and attempted murder. While incest was not a cognizable offence during this period, the judicial archives also reveal some evidence of the existence of incest as a social phenomenon, as well as some prosecutions (generally brought under the charge of ravishment or, more unusually, abduction). This paper contributes to our understanding of Quebec socio-legal history for an understudied time period, and adds dimension to our understanding of the manner in which the legal system grappled with compelling social phenomena before widespread legislative or public action on these issues.
Download the essay from SSRN at the link. 

Deconstructing "Benito Cereno"

From the Chronicle of Higher Education: Greg Grandin on the historical background of Melville's Benito Cereno. Dr. Grandin is the author of the forthcoming The Empire of Necessity: Slavery, Freedom, and Deception (Metropolitan Books/Henry Holt, 2014). Here is a description of the book from the publisher's website.

One morning in 1805, off a remote island in the South Pacific, Captain Amasa Delano, a New England seal hunter, climbed aboard a distressed Spanish ship carrying scores of West Africans he thought were slaves. They weren’t. Having earlier seized control of the vessel and slaughtered most of the crew, they were staging an elaborate ruse, acting as if they were humble servants. When Delano, an idealistic, anti-slavery republican, finally realized the deception, he responded with explosive violence.
Drawing on research on four continents, The Empire of Necessity explores the multiple forces that culminated in this extraordinary event—an event that already inspired Herman Melville’s masterpiece Benito Cereno. Now historian Greg Grandin, with the gripping storytelling that was praised in Fordlandia, uses the dramatic happenings of that day to map a new transnational history of slavery in the Americas, capturing the clash of peoples, economies, and faiths that was the New World in the early 1800s. 

December 15, 2013

Legal Series, Based On an Aussie Hit, Will Make Its Appearance On Fox Network

Fox is adapting the popular Australian legal drama (actually more of a dramedy), Rake, which stars Richard Roxburgh as Sydney-based Cleaver Greene, for the US market. The US version stars Greg Kinnear ("You've Got Mail," "The Kennedys," (TV miniseries), and something called "Murder of a Cat," which doesn't tempt me to see it, based on the title), as Keegan Deane, a criminal defense attorney who always seems to get into trouble.

More here, including video clips, at the webpage for the show, which premieres Thursday, January 23, at 9 p.m., 8 Central time. 

December 9, 2013

The Legal History Enterprise at LaTrobe University

Christopher L. Tomlins, University of California, Irvine, Law School, has published Law ‘And’, Law ‘In’, Law ‘As’: The Definition, Rejection and Recuperation of the Socio-Legal Enterprise at 29 Law In Context 137 (2013).

The critical moment in socio-legal studies that flowered in the United States and elsewhere between the mid-1970s and the early 1990s coincided with the maturation of the Legal Studies Department at Melbourne’s La Trobe University. During its two-decade span (1972-1994) La Trobe Legal Studies developed multidisciplinary critical and theoretical perspectives on law – as substance, as professional practice, as field of academic inquiry – to an extent and depth unrivalled in Australia or, with just a few exceptions, internationally. This essay charts the particular trajectory followed by one of those perspectives, legal history, both at La Trobe and in the wider world. Simultaneously, it offers a short history of the Department itself: of its growth during the 1970s and 1980s; of its transformation into a law school during the 1990s; and of the struggles to maintain a place for the social in the legal that occurred during that transformation.
Download the article from SSRN at the link.

Judicial Outputs

Ross E. Davies, George Mason University School of Law and The Green Bag has published Feeding the Right Stuff: Would You Clerk for Learned Hand? at 3 Journal of Law 187 (2013).

Being a feeder judge (that is, a judge whose clerks routinely go on to clerk for a Justice of the U.S. Supreme Court) must be difficult. Hard at the start of the process and, alas, sometimes even harder at the end. While a number of forthright scholars and judges have described the challenges at the start, information about difficult endings is in shorter supply. But not nonexistent.
Download the article from SSRN at the link. 

December 5, 2013

From the Law and Society Association: Support Available For Junior Scholars

From the Law and Society Association:

Attention Junior Scholars - would you like a chance to present your ideas for the Law and Society Association at the 2014 annual meeting and receive generous travel support?

We invite junior scholars around the world with new and innovative ideas to submit them to the LSA Project on the 2nd  Half Century at the 50th Anniversary Meeting in Minneapolis MN May 29-June 1 2014. Winning authors will appear on a special 50th Anniversary Roundtable. They will also receive travel support, free registration, and a year’s free membership to the Law and Society Association.

The competition is organized by the LSA Project on the 2nd Half Century, which was created on the eve of LSA’s 50th Anniversary to stimulate discussion about the future role of the Association.

We invite junior scholars (grad students, post docs, and assistant professors) to submit short essays on the following theme:

What is the future of socio-legal studies, what new possibilities exist, and what innovations should the Law and Society Association consider as it enters the 2nd Half Century?Essays must be in English. They cannot exceed 2000 words. They could consider use of new technologies, new ways to build scholarly networks, new training initiatives, and other innovations. Successful essays may include assessment of present LSA activities as well as proposals for innovation.

For more information and to submit, visit

December 3, 2013

Law and Literature and Criminal Law

Simon Stern, University of Toronto Faculty of Law, is publishing Law & Literature (As an Approach to Criminal Law in The Oxford Handbook of Criminal Law (Markus Dubber & Tatjana Hoemle, eds., Oxford University Press, 2014). Here is the abstract.

This book chapter discusses the use of literary material as a means of studying criminal law. The chapter provides an overview on various methods of combining legal and literary materials (law in literature, literature in law, law as literature, legal aesthetics) and offers two case studies (Susan Glaspell's "A Jury of Her Peers" and Robert Louis Stevenson's The Strange Case of Dr. Jekyll and Mr. Hyde) to show how literature can open up questions both about substantive criminal law doctrines and also about the grounds on which those doctrines are applied. Along the way, the discussion shows how various scholars of criminal law, such as Nicola Lacey and Anne Coughlin, have raised questions that have also provoked the interest of literary scholars such as Dorrit Cohn and Blakey Vermeule.

The chapter also serves as a bibliography for scholars seeking further resources that examine criminal law through the lens of literature. These resources include bibliographies of primary texts (such as crime-based fiction, "dying confessions" circulated at executions, and movies), secondary texts (discussing law and criminal behavior in relation to fiction, drama, and poetry), and web-based resources (such as the Old Bailey Sessions Papers Online). In that spirit, the chapter also discusses some research that is often overlooked in discussions of criminal law and literature – such as Todd Herzog’s research on Weimar-era true-crime narratives that were created from actual case files; Jonathan Eburne’s research on crime in the work of the French surrealists; Lorna Hutson’s research on civic plots of detection in renaissance drama and their relation to the development of evidence law; and Lisa Rodensky’s work on narrative modes in Victorian fiction and their relation to the treatment of mens rea in contemporaneous legal thought.

The chapter closes with some brief reflections on the potential for current work in cognitive literary studies to change the way we think about literature's relation to law, and, in particular, the way we impose narrative templates on the events we experience.
Download the essay from SSRN at the link.

December 2, 2013

Storytelling For Lawyers

Storytelling For Lawyers, a new publication from Philip Meyer, Vermont Law School.

From the Oxford University Press website:

Cover for 
Storytelling for Lawyers

Storytelling for Lawyers

Philip Meyer

  • Good storytelling is a necessity for trial lawyers, and this book explains how to do it
  • Author is a law professor who also holds a masters degree in creative writing from the University of Iowa Writers Workshop
  • Breaks narratives down into their fundamental parts to show how they work
  • Will be of interest to any lawyer struggling to craft a compelling story

Religious Symbols and Constitutional Meaning

Frederick Mark Gedicks, Brigham Young University Law School, and Pasquale Annicchino, European University Institute, Robert Schuman Centre for Advanced Studies (RSCAS), have published Cross, Crucifix, Culture: An Approach to the Constitutional Meaning of Religious Symbols. Here is the abstract.

In the United States and Europe the constitutionality of government displays of confessional symbols depends on whether the symbols also have nonconfessional secular meaning or whether, at least, the confessional meaning is somehow absent. Yet both the United States Supreme Court (USSCt) and the European Court of Human Rights (ECtHR) lack a workable approach to determining whether secular meaning is present or confessional meaning absent.
The problem is that the government can nearly always articulate a possible secular meaning for the confessional symbols that it uses, or argue that the confessional meaning is passive and ineffective. What matters, however, is not the possibility that secular meaning is present or confessional meaning absent, but whether whether this presence or absence is historically and culturally authentic. Courts largely ignore this, routinely appealing to history and culture to justify government use of confessional symbols without undertaking a serious investigation of either history or culture.
Drawing on the work of C.S. Peirce, we propose that courts ask three successive questions in religious symbol cases: (1) Is the ordinary meaning of the symbol confessional or otherwise religious? (2) Does the immediate context in which the symbol is displayed suggest a possible historical, cultural, or other secular meaning? (3) Is this alternate secular meaning authentically present and genuinely recognized in the history and culture of the place where the symbol is displayed?
We illustrate this approach with Salazar v. Buono, in which the USSCt upheld government display of a Christian cross, and Lautsi & Others v. Italy, in which the ECtHR deferred to Italian court decisions upholding government display of a Catholic crucifix. While the USSCt in Buono and the Italian courts in Lautsi imagine conceivable nonconfessional meanings for the confessional symbol at issue, neither meaning can be found in American or Italian history or culture. In Lautsi, thjerefore, the ECtHR ends up deferring to a nonexistent Italian “tradition.”
Judical denial of obvious confessional meaning and invention of substitute secular meanings for confessional symbols betrays a cultural schizophrenia: Majoritarian religions rail against the secularization of culture and its subversion of belief, yet they insist that their confessional symbols remain at home in this culture. But confessional symbols no longer fit in mainstream culture as confessional — hence their redefinition as secular, even and especially by the majoritarian religions that use them. Ironically, judicial secularization of these symbols to validate their use by government is likely to accelerate and entrench the very secularization that such religions deplore.
Download the paper from SSRN at the link. Via Legal Theory Blog.

Irish-American Politics and Justice

Sara Ramshaw, Queen's University, Belfast, has published Improvising (Il)Legality: Justice and the Irish Diaspora, N.Y.C., 1930-32, at 3 Irish Journal of Legal Studies 90 (2013). Here is the abstract.

The Seabury Commission, 1930-32, probed allegations of corruption made against, amongst others, the Irish-American Mayor of New York City, James J. ‘Jimmy’ Walker, and the Irish-dominated Tammany Hall, the Democratic political machine that had supported Walker. Taking the Seabury inquiry as its focus, this article explores these allegations from the perspective of Critical Studies in Improvisation (C.S.I.) fused with postcolonial critique. Improvisation, in accordance with C.S.I. principles, is not a lawless or extempore event; it is, instead, lawful, or full of law. The laws of improvisation may appear impenetrable to those unfamiliar with the practice. However, when read through a hibernocentric postcolonial perspective, their meaning and form become more understandable. As will be argued in this article, diasporic communities are inherently improvisatory; that is, they utilise improvisational techniques to help adapt and respond to new situations and social contexts. To be queried is whether the law and politics practiced by Tammany and Walker, taken together, constituted a markedly Irish approach to justice, one that entailed not scripted or planned illegality, as was alleged by Judge Seabury, but improvisations on Anglo-Protestant law as a response to the displacement of and discrimination against the Irish Diaspora in early twentieth century America.
Download the article from SSRN at the link.

This Samuel Seabury is descended from an earlier Samuel Seabury, who was an Episcopalian bishop, political activist during the American Revolution, and son of yet another Samuel Seabury. Read about him in Paul Victor Marshall, One, Catholic, and Apostolic: Samuel Seabury, and the Early Episcopal Church (Church Publishing, 2004). Under the pseudonym A. W. Farmer, Seabury wrote political tracts that figured in revolutionary thought. See Benjamin H. Irvin, Clothed in Robes of Sovereignty: The Continental Congress and the People Out of Doors (Oxford, 2011).

More about his descendant, the judge, in Herbert Mitgang's The Man Who Rode the Tiger: The Life and Times of Judge Samuel Seabury (Fordham University Press, 2d ed., 1996).

Law and Humanities Table of Contents, Volume 7, Number 2 (2013), Now Available

From Jo Ledger of Hart Publishing:

Volume 7. Number 2. 2013 The 2nd issue of the 2013 volume of Law and Humanities is now available.
 ONLINE ACCESS: To access this issue online, read the abstracts and purchase individual papers please click here.  SUBSCRIPTIONS: For further information about Law and Humanities, please click here. CONTENTS EditorialFree to view – please click here ArticlesForensic Representations of Identity: The Imago, the X-Ray and the Evidential ImagePiyel Haldar
Abstract: The invention of photography in the nineteenth century is generally considered to have affected a sea change in evidential reasoning and in the courts' relationship to technology. This paper argues that in the use of fact x-rays provided a more revolutionary change in the forensic and trial processes. In order to analyse this more thoroughly, radiography needs to be situated in the following contexts. First the genealogy of the legal image and its relationship to death has to be examined. Second, the x ray has to be considered as part of a process that requires of the forensically endowed viewer something other than what was required of observers of the legal theatre.
Click here to purchase article The Deception of Cadence: Toward a Dissonant LawM Paola Mittica
Abstract: The use of musical metaphor is a recurrent theme in the history of political thought, but it also shows up in jurisprudence, where in recent years it has been coming into increasingly frequent use, taking on a particularly prominent role in Law and the Humanities. This article analyses the nexus between harmony and dissonance as a metaphor for the relation between system and complexity, monism and pluralism, and inclusion and exclusion in connection with legal discourse, or between law and 'non-law'. Ultimately, the goal is to have a better understanding of the relation between social complexity and legal regulation, and the question, in that regard, is whether the intelligence of the musical arts can prove useful to the intelligence of the legal arts.
Click here to purchase article Representations of Governance in Sixteenth- and Seventeenth-Century Europe: The Iconography and Dramatic Presentation of the Sovereign RulerChristopher Harding and Nicola Harding
Abstract: It is conventional wisdom in the history of international law and relations that during the sixteenth and seventeenth centuries patterns of governance in Europe were transformed, a complex and multi-layered system of political authority being superseded by a more unified structure of exclusive authority vested in the form of the sovereign state. The outcome of this process is easier to appreciate than the means of its achievement. How did such ideas about governance take root and consolidate into a consensus among political leaders across Europe? The discussion in this paper examines a range of media which may have been significantly exploited in early modern European society for the dissemination of argument and ideas about governance. Two major forms appeared to be utilised for this purpose: visual art, with its rich iconographical content; and various types of dramatic presentation capable of communicating with both elite and popular audiences.
Click here to purchase article Killing the Queen: ‘It lawfully maie be done’Dominique Goy-Blanquet
Abstract: The case of Mary Stuart offers a privileged view of the roles played by the Inns in the years leading to her trial. It was argued at length in pamphlets, treatises, petitions, and occupied a major part in the proceedings of several parliamentary sessions. Closely connected with the issue was the "liberty of the House", freedom of speech. Among numerous faults, Mary was "An enemy to England", and a foreigner: whether this could bar her or not from inheriting the crown made a moot point, discussed in Plowden's crucial treatise on the succession. Various incidents suggest that news and arguments circulated from Commons to commons. That the legal issues must have made a fascinating theme for pro et contra debate appears in Queen Elizabeth's complaint that "yow lawiers are so nice and so precise in sifting and scanning every word and letter, that many times yow stand more upon forme then matter, upon syllabs then the sense of the lawe". The lawyer who had given her and his fellow MPs assurance that the transgressive deed "lawfully maie be done" was dead before the actual trial, but his colleagues who had repeatedly demanded the head of Mary brought the procedure to its required conclusion.

Literature in Law: Exceptio Artis and the Emergence of Literary FieldsRalf Grüttemeier and Ted Laros
Abstract: This article explores the possibility of examining literary trials from a field theoretical perspective. It argues that literary trials can function as a barometer of ideas about institutional autonomy of the literary field and about conceptions of literature. Efforts to answer such questions can profit from the currently growing digitalisation of historical press data. The 1919/1920 pornography trial concerning the Dutch translation of Henri Barbusse's novel L'enfer is used as a case study to explore whether the rise of the concept of exceptio artis can be seen as a decisive step in the recognition of the literary field by the field of power, possibly not only in the Netherlands.
Click here to purchase article
Pigoons, Rakunks and Crakers: Margaret Atwood’s Oryx and Crake and Genetically Engineered Animals in a (Latourian) Hybrid WorldJay Sanderson
Abstract: In this article I develop a concept of hybridity for genetically engineered animals by referencing Bruno Latour in my reading of Margaret Atwood's Oryx and Crake (2003). While Oryx and Crake is full of hybrids, it (like many other novels incorporating hybrids) depicts a particular kind of hybrid: a hybrid that is a corporeal mixture of animal-animal, animal-human or animal-machine. Informed by Bruno Latour's theory of hybridity—a theory that weaves together all sorts of human and material actors—this article messes up Atwood's hybrid world, and brings to the fore the mixture of actors that allow pigoons, rakunks, wolvogs and Crakers to exist. In so doing this article proposes a hybrid reading of genetically engineered animals that takes individual actors seriously, but by the same token, does not neglect the messy and contingent weaving together of biotechnology, politics, attitudes, practices, values, commerce and law.
Click here to purchase article
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November 30, 2013

November 26, 2013

The Law and Jeremy Bentham

Philip Schofield, University College London, Faculty of Laws, has published The Legal and Political Legacy of Jeremy Bentham at 9 Annual Review of Law and Social Science 51 (2013). Here is the abstract.

The study of Jeremy Bentham (1748–1832), the English legal philosopher and reformer, is being transformed by the appearance of volumes in the new authoritative edition of The Collected Works of Jeremy Bentham. Following revisionist studies in the 1980s and 1990s that reasserted Bentham's credentials as a key figure in the emergence of the liberal tradition, more recent work has explored an increasingly varied range of topics from the perspective of an increasing variety of disciplines, including literary studies, sociology, and history of political thought, as well as law and philosophy. The view of Bentham as a crude authoritarian behaviorist is no longer tenable, and Bentham's place as a major philosopher with relevance for the twenty-first century is being increasingly recognized.
The full text is not available from SSRN.  

How They Do It Good

Richard Weisberg, Cardozo School of Law, has published Grisham vs. Solmssen as Cardozo Legal Studies Research Paper No. 411. Here is the abstract.

A close comparative analysis of the law-related works of two excellent story-tellers, one celebrated (John Grisham) and the other (Arthur G. Solmssen) even more worthy of fame.
Download the paper from SSRN at the link. 

Ludwig's Way

Bert Van Roermund, Tilburg Law School, Tilburg School of Humanities, Tilburg Law School, has published Rules as Icons: Wittgenstein's Paradox and the Law, at 26 Ratio Juris 538 (2013). Here is the abstract.
In this paper Section 1 distinguishes between two modes of interpreting legal rules: rehearsal and discourse, arguing that the former takes priority over the latter in law, as in many other contexts. Section 2 offers two arguments that following a legal rule in the rehearsing mode presents a riddle. The first argument develops from law, and submits that legal rules do not tell us anything, because they are tautological. The second one develops from philosophy (Wittgenstein's later works), confronting us with the paradox that incompatible courses of action may be derived from any rule. My solution presents a theory of rules as icons (Section 3). I use “icon” rather than “picture,” partly to avoid confusion with what is known among philosophers as “the picture theory of meaning.” Interpretation in the rehearsing mode hinges on imagination: imagining oneself in the space of reasons for action rather than reasoning oneself. In this act of imagination, we project ourselves into the rule in ways that are similar to the way we grasp the sense of paintings, music, stories, or poems. Finally (Section 4) I will defend the position that my view solves the puzzles in the second section, by arguing (a) that it is a better account of what Wittgenstein wrote than two competing theories (intuitionism and conventionalism), and (b) that it provides a more satisfactory account of how lawyers deal with legal rules in actual practice.
The full text is not available from SSRN. 

November 25, 2013

The Building of the Peace Palace

Randall Lesaffer, Tilburg Law Faculty; KU Leuven Faculty of Law; Tilburg University, International Victimology Institute Tilburg (INTERVICT), has published The Temple of Peace. The Hague Peace Conferences, Andrew Carnegie and the Building of the Peace Palace (1898-1913) at 140 Mededelingen van de Koninklijke Nederlandse Vereniging voor Internationaal Recht, Preadviezen 1 (2013).

The 19th-century international peace movement sprang from the reaction against the devastation and horror the Napoleonic Wars and the War of 1812 had wrought. It had its roots in Anglo-American nonconformist protestant circles, but quickly spread over the globe and became more pluralist and then secular. All through the century and beyond, British and American peace activists dominated the movement and set its agenda. During the later quarter of the century, the peace movement gained more political influence thanks to its alliance with the emerging discipline of international law. This was, again, particularly true for Britain, and most of all, the United States. Two major points stood out on the agenda of the ‘peace through law’ movement: disarmament and arbitration.
Whereas the movement could attain very little to nothing in relation to disarmament in the years before the Great War, the movement found allies in political circles to foster the cause of arbitration. In the United States, Britain and the Latin-American Republics, arbitration moved up the agenda of foreign policy makers and diplomats after the successful Alabama Award in 1872. The Alabama Case had shown arbitration to be an appropriate instrument to manage tactical disputes among States which wanted to avoid strategic clashes.

In 1899, the cause of ‘peace through law’ scored an unexpected success. The Hague Conference, which first had been called by the Russian government for reasons of high power politics, had – to a large extent thanks to the endeavours of the Russian international lawyer Fyodor Martens – been highjacked for the ‘peace through law’ agenda when these reasons dissipated. One of the main outcomes was the establishment of the Permanent Court of Arbitration at The Hague. In 1903, the American industrialist turned philanthropist, Andrew Carnegie, made a lavish gift to build a ‘Temple of Peace’ for the Court at The Hague. It can be said, with the benefit of hindsight, that this set the destiny of The Hague as legal capital of the world in stone.
Download the article from SSRN at the link. 

Middle Eastern Law

Chihbli Mallat, University of Utah College of Law & Université Saint-Joseph, and Mara Revkin, Yale Law School, have published Middle Eastern Law at 9 Annual Review of Law and Social Science 405 (2013). Here is the abstract.

This article maps Middle Eastern law in some of the thousand plateaus where it operates/operated: Mesopotamian law, Roman provincial law, Islamic law, and post-colonial law, with layers within each, such as Elephantine law in Egypt and Jewish and Christian law in Islam's classical age, as well as new worlds of law, such as Byzantine and Ethiopian law, in which scholarship about interaction with other layers of Middle Eastern law is either inexistent or just starting. The focus is directed as much as possible to the extant documentation in the legal record that most affects people's lives: court decisions. For the modern period, we survey, from the point of view of the legal practitioner, lawyer, or judge, the various bodies of case law and codes in the everyday practice of the Middle East lawyer. A legal family analogous to the common or civil law traditions, Middle Eastern law has emerged as a coherent and active discipline that is increasingly a subject of inquiry for historians, social scientists, and others outside of the legal profession. This article presents the field for more sustained attention from lawyers, judges, and law professors.
The full text is not available from SSRN. 

Digital Legal History

Ryan Rowberry, Georgia State University College of Law, has published Legal History Through Digital Sources in volume 53 of the American Journal of Legal History (2013).

Anglo-American Legal History can be a very difficult subject to teach because of its scope. This article is a pedagogical piece discussing how I structure my Anglo-American Legal History seminar around the various digitized primary sources available to law students. During this seminar we examine the history of lawyers and judges from the late Anglo-Saxon period (tenth century) through the twentieth century, generally at the clip of one century per week. We do spend extra time, however, on the English Inns of Court and the rise of the American law school. The final two weeks of the semester are devoted to a series of student term paper presentations with accompanying feedback sessions. Term papers may deal with any topic, but the argument must be largely based on primary sources.
Download the article from SSRN at the link. 

And the Pursuit of Happiness

Lloyd England, Monash University Faculty of Law, has published Law and the Art of Happiness. Here is the abstract.
Happiness as an abstract concept is interesting to briefly ponder; do we have a right to be happy? If so, what, all the time? Is this a realistic expectation? Tears of happiness are not the only anatomical reason we have tear ducts, so a degree of non-happiness or unhappiness is to be expected, right? The Yin to the Yang? What goes up…?
Happiness is big business, literally. It is the endeavor of serious academic inquiry; there are Happiness Conferences! I bet they’d be fun (come on - you’d hope so). ‘Sex sells’ and so does happiness; when did you last see a Crabby Coke drinker on a billboard? Or a Moody Motorist in his new car on a TV ad? Modern society seems to shun the very thought of ‘non-elatedness’ if advertising is to be believed, but times of occasionally having ‘The Blues’ or down-time from brimming with happiness are, perhaps, part of the natural rhythm of life and only to be expected at some points along our respective journeys. Obviously, persistent and unshakable melancholy is worth seeking advice over from a registered medical practitioner, as it may be symptomatic of an underlying issue and is best to get checked out, if just for peace of mind, but this is a separate thing to what I wish to discuss. I wish to discuss being unhappy if not because of, then during the study of, Law.
Download the paper from SSRN at the link. 

November 21, 2013

Originality, Copyright, Law, and Judging

Erlend Lavik, University of Bergen, and Stef Van Gompel, University of Amsterdam, Institute for Information Law, have published On the Prospects of Raising the Originality Requirement in Copyright Law: Perspectives from the Humanities at 60 Journal of the Copyright Society of the USA 387 (Spring 2013). Here is the abstract.

In 1903, in Bleistein v Donaldson Lithographing, Justice Holmes famously concluded that judges are ill-suited to make merit judgments when determining the eligibility for protection of works. Subsequent courts and commentators have generally followed his caution. Yet, no one has thought through how the copyright system would work were Justice Holmes not heeded. What if courts were called upon to determine the aesthetic merit of a work? How would they go about it? And would they be able to separate the gold from the dross by drawing upon an aesthetic evaluation of such kind?
These questions inevitably arise upon reading some recent proposals to raise the originality threshold. Though it is rarely explicitly recognized, the reconfiguration that these proposals entails would effectively bring originality’s meaning in copyright law more into line with how the term is used in aesthetics, where it is considered a function of the work’s level of creativity, measured by its degree of departure from conventional expression.
Drawing on the concept of domain from sociocultural studies of creativity, we explain just why it would be so enormously problematic for courts to identify and to apply a stricter originality criterion that would require them to make decisions on the basis of merit. By comparing the domain of copyright law to the domain of patent law, we argue that it is the latter’s relative coherence and orderliness that enables patent examiners to get traction when assessing an invention’s degree of non-obviousness. The cultural domain, by contrast, is less rule-bound, and therefore non-obviousness is much harder to establish and validate. Aesthetics – both as a set of cultural practices and products and as an academic discipline – are simply too heterogeneous to provide adequate toehold for the legal analysis of higher degrees of originality.
Exploring the reasons and reasoning behind the ban on aesthetic merit in copyright law from a humanities perspective, this article offers a more detailed and nuanced account of Justice Holmes’ conclusion. Contrary to conventional wisdom we argue that the inherent subjectivity of aesthetic preferences does not in itself make it any harder to pinpoint an objective standard of aesthetic merit, though it does make it harder to provide justification for any such standard. Furthermore, the article questions the premise on which the proposal to raise the originality threshold rests, namely that it will cause the undeserving bottom of works to fall out, leaving only aesthetically worthy and socially valuable works protected. Before introducing a stricter originality criterion we need a more careful and empirically based analysis of just what the problems are, what areas of copyright law are affected, and exactly how and why a higher threshold would improve the situation.

Download the article from SSRN at the link. 

November 20, 2013

Telling Stories

Kenneth D. Chestek, University of Wyoming College of Law, is publishing The Life of the Law Has Not Been Logic: It Has Been Story in volume 1of the Savannah Law Review. Here is the abstract.

It probably comes as no surprise that principles of cognitive psychology are pretty important in persuasive writing. After all, the whole point of persuasive writing is to influence the thinking of the audience (the court). Judges are humans, so understanding how the human brain works is exceedingly useful to brief writers. And since cognitive psychology tells us that stories are central to human thinking, understanding how to present an effective story is essential to persuasive writing.
But that is not to say that the doctrine of legal writing is limited to the course in persuasive writing. Storytelling pervades the law. Not just in the game changer cases like Brown v. Board of Education or Lawrence v. Texas (just two examples of cases where narrative reasoning was essential in order to effect major changes in the law). Storytelling is also embedded in many of what we sometimes think of as the logos rules.

Take the law of negligence, for example. It looks like a logos-based, four-element test that is pretty straightforward and easy to apply (duty, breach of duty, proximate cause, damages). Law students are even encouraged to think of it in these simplistic terms. But in practice, how does one prove what the duty is without telling stories about what other human beings typically do in similar circumstances? Or whether an individual’s conduct measures up to, or falls short of, that standard? These applications of the rule involve judgment calls that can be resolved by the factfinder only through narrative reasoning. Similar examples can be found in every “doctrinal” course.
The law does not live by logos alone. Pathos-based narrative reasoning is essential not only in applying the law to individual cases, but also to how judges craft the actual rules to be applied. Many, and probably most, “doctrinal” professors understand this, at least subconsciously. Every time they engage students in policy discussions about why the court changed a rule, they are actually (but maybe not explicitly) discussing how a client’s story was so powerful that it convinced the court of the need for change. Since the first-year course in legal writing is as much about legal analysis as it is writing, that course is a perfect opportunity to teach this process explicitly.
Download the article from SSRN at the link.

November 19, 2013

The Kaiser As a War Criminal

Kirsten Sellers, National University of Singapore, Faculty of Law, Centre for Asian Legal Studies, is publishing German Aggression and the Stillbirth of International Criminal Law at the Paris Peace Conference in The Crime of Aggression--A Commentary (Claus Kress and Stefan Barriga eds.; Cambridge University Press, forthcoming, 2015). Here is the abstract.

At the end of the First World War, David Lloyd George, campaigning on behalf of his coalition government, declared: ‘The Kaiser must be prosecuted. The war was a crime. Who doubts that?’ This was a radical departure from the traditional approach to war, containing within it two innovative ideas: that embarking upon an aggressive war was a crime, and that a head of state could be held personally responsible for it. This would soon become an important theme in discussions between the entente nations at the Paris Peace Conference about the viability of trying Wilhelm II for war-related crimes. Now, nearly a century later, with the idea of charging leaders for the ‘crime of aggression’ on the International Criminal Court’s agenda, the issues first raised by Lloyd George and others continue to resonate.
The full text is not available from SSRN.  

Media Images of Minorities

Dana D. Dyson and John R. Arnold, and Sasha Drummond-Lewis, University of Michigan, Flint, have published Lights, Camera, Action: Repressive Policies and Minority Images in Media.  Here is the abstract.
This ethnography specifically looks at images depicted in media of minorities, using the 1971 Kerner Commission, which charged media to create a more balanced picture of minorities with more realistic and positive representations. Positive images can challenge notions of inferiority and systems of inequality. This research is an overview of stereotypical images of minorities permeating news media today, reflecting how far we have come in eliminating ignorance and discomforting messages. We are especially interested in reviewing the effects of minority images on recently developed and implemented policing policies, such as Stop and Frisk and Stand Your Ground. The improper portrayal of African-Americans in the media may contribute to the use of ungrounded force and mistreatment on innocent bystanders. We believe that W.E.B. DuBois’s maxim about the problems of the color line still resonates within the American ethos in spite of the election of our nation’s first African-American President. It is our hope that this examination adds to our understanding of race and media in the 21st Century.
The full text is not available from SSRN.

November 14, 2013

Transgender Identity and Popular Culture: Images From Film

Sharon Cowan, University of Edinburgh School of Law, has published 'We Walk Among You': Trans Identity Politics Goes to the Movies as Edinburgh School of Law Research Paper No. 2013/39. Here is the abstract.

Recent legal and social acknowledgement of (some) trans citizenship claims demonstrates the continuing evolution of trans politics and identity, and the relationship between socio-political identities and popular culture. This article examines current debates over trans citizenship and identity, and argues that certain kinds of identity and citizenship claims have cultural currency in contemporary representations of sex/gender. In order to address these issues, this article highlights key disputes and tensions in contemporary debates about transgender identity, citizenship and claims to legal rights, by examining the ways in which sex/gender identity is portrayed in three films -- Cabaret, Transamerica and Hedwig and the Angry Inch. Each film demonstrates various ways of interpreting and reworking the constraints of heteronormative binary notions of sex/gender, and these struggles over meaning are also reflected in the ways in which different articulations of trans identity and citizenship claims have been legally and culturally recognized. The article explores the ways in which particular accounts of trans identity are given primacy within law, and how film can help us to reflect upon questions about which sexed/gendered people get to count as legal citizens. The paper concludes by reminding us that despite discourses of recognition, it is important to remember the exclusionary as well as inclusionary tendencies of law.
Download the paper from SSRN at the link. 

Michael Burger Wins First Penny Pether Award

News from Amy Dillard on behalf of the Penny Pether Law and Language Scholarship Award Committee:

Michael Burger of Roger Williams University School of Law is the winner of the first annual Penny Pether Award for Law and Language Scholarship for his article Environmental Law/Environmental Literature.  40 Ecology L.Q. 1 (2013).  The award will be officially presented this Friday at the West Coast Rhetoric Scholarship Workshop at UNLV’s Boyd School of Law. Dozens of terrific articles and essays were nominated for the award.  In partial recognition of the strength and tremendous diversity of the works we were so lucky to read, we are also pleased to give honorable mention to Kevin Curran for his article, Hospitable Justice: Law and Selfhood in Shakespeare’s Sonnets, 9 Law, Culture, & Humanities 295 (2013), and to Ruthann Robson for her essay, 27 Words, 13 Memoir 85 (2013).
The committee wishes to thank everyone who nominated authors for the award and to the authors themselves for their great work.  It looks forward to making this award an annual tradition.    

[NB: Committee announcement edited slightly].

November 12, 2013

The Law of Obligations In Scotland

Hector Lewis MacQueen, University of Edinburgh School of Law, has published The Law of Obligations in Scots Law in The Law of Obligations in Europe: A New Wave of Codifications 213 (Reiner Schulze and Fryderyk Zoll eds; Munich, 2013). Here is the abstract.

A historical study of the structure of the law of obligations in Scots law, with especial reference to the law of contract.

Download the essay from SSRN at the link.

Something To Laugh About

Ozan O. Varol, Lewis & Clark Law School, is publishing Revolutionary Humor in the Southern California Interdisciplinary Law Journal. Here is the abstract.

The study of mass social movements, and their influence on legal, constitutional, and political reform, has long preoccupied legal scholars. Bottom-up social revolutions, ranging from the Civil Rights Movement in the United States to the struggle against apartheid in South Africa, are studied extensively in the literature. The traditional conceptions of social movements largely portray them as somber occasions that reflect the gravity of the moment and the seriousness of their objectives. This Article identifies and studies a novel pattern emerging from the social movements of the 21st century, providing a unique contribution to the burgeoning legal literature on the role of non-state actors in shaping legal and constitutional change.

These new social movements — including the Arab Spring, the Occupy Wall Street movement, and the mass protests that took place in Summer 2013 in Turkey and Brazil — bear a counterintuitive ingredient in their conception and design: the ubiquitous use of humor. Although humor might appear to be antithetical to the somber nature of social movements, this Article argues, drawing on behavioral research and social movement theory, that humor can be an effective strategic tool to influence legal, constitutional, and political reforms. Humor can pierce the culture of fear prevalent in tyrannical regimes, serve as an effective coping mechanism against repressive government practices, and provoke government officials into reactionary conduct that furthers the social movement’s objectives. The use of humor can reframe and supplant the negative regime narratives of the movement and build solidarity among heterogeneous members of a movement with pre-existing sociopolitical differences. Humor can also support political mobilization by providing a low cost point of entry into a social movement, obtaining domestic and global resonance for the movement, and persuading others to join the movement by depicting an alternate, more appealing, reality. Finally, humor can provide an effective avenue for expressing popular discontent and undermine traditional methods for suppression employed by repressive leaders, including laws that criminalize and censor dissent and social mobilization.

Download the text of the article from SSRN at the link. 

November 7, 2013

International Law and Science Fiction

Orna Ben-Naftali, College of Management Academic Studies; The Emile Zola Chair for Human Rights; and Zvi H. Triger, College of Management Academic Studies; Striks School of Law, are publishing The Human Conditioning: International Law and Science-Fiction in the 2013 volume for Law, Culture, and the Humanities. Here is the abstract.

This article introduces the subject-matter of a symposium on international law and science fiction. The impact of new technologies on human rights, humanitarian issues and indeed on what it means to be human in a technological age, suffers from a paucity of international legal attention. The latter has been attributed to various factors ranging from technophobia and technological illiteracy, inclusive of an instrumentalist view of technology, to the sense that such attention is the domain of science-fiction, not of international law. The article extends an invitation to pay attention to the attention science-fiction has given to the man-machine interaction and its impact on the human condition. Placing this invitation in the context of the 'Law and Literature' movement, the article exemplifies its value with respect to two technologies, one directed at creating life or saving it (cloning and organ donation) and the other at ending life (lethal autonomous robots).
Download the article from SSRN at the link. 

November 6, 2013

Yale Law Schools Professors Win Order of the Coif Award For Their Work, "Representing Justice"

Yale Law School professors Judith Resnik and Denny Curtis have won the Order of the Coif Book Award for their magnum opus, Representing Justice.  This award is given only once every two years.  The list of previous winners includes such classics as John Rawls, A Theory of Justice; Lawrence M. Friedman, A History of American Law; Laurence H. Tribe, American Constitutional Law; John Hart Ely, Democracy and Distrust; Guido Calabresi, A Common Law for the Age of Statutes; and Ronald Dworkin, Law's Empire, to name only a few.

Previously this book won the award from the Association of American Publishers for the outstanding book of the year in the entire social sciences, as well as the Scribes Book Award, and the New York Times wrote a large article about it when it was published.  It is a special book for the Yale Law Library, since it was the third book published in the Yale Law Library Series in Legal History and Reference (Yale University Press) and the library provided an enormous amount of help to Judith and Denny.  In particular, Camilla Tubbs, Mike Widener, and Jason Eiseman all contributed greatly.

Here is a link to the Yale Law School website posting on the award:

Thanks for Fred Shapiro for this information.

Here's a link to the Representing Justice website at the Yale Law School Law Library.

November 5, 2013

Extended Deadline: Call For Papers, Law and Magic Conference, June 5-6, 2014

We have extended the date for the call for papers for this conference to January 6, 2014. We encourage interested persons to submit proposals, particularly in the areas of law and magic where they intersect other disciplines such as history, literature, film, freedom of expression, religion, architecture or anthropology. 

Revealing the Links Between Law and Magic
A Conference Sponsored by the Law and Humanities Law Institute and
Thomas Jefferson School of Law

June 5-6, 2014
Thomas Jefferson School of Law
1155 Island Avenue, San Diego CA 92101

Call For Papers
On June 5 and 6, 2014, the Law and Humanities Institute, New York, New York (USA) and Thomas Jefferson School of Law, San Diego, CA (USA) will sponsor a Conference on Law and Magic.
Law and magic interact in many ways. Not only can the law influence the practice of magic, such as in the areas of freedom of speech and religion and intellectual property; but also magic can influence the law, such as in trial tactics and evidence. In addition, magic illuminates the crossroads of other law and humanities fields, such as the emerging area of law and neuroscience, rhetoric, and law and popular culture. Papers discussing or developing these or any aspect of the relationship between law and magic are welcome, especially those that further an understanding of the theory, underpinnings, and/or philosophy of the field. 
Materials and presentations will be in English. The organizers of the conference are Christine Corcos, Louisiana State University Law Center ( and Julie Cromer Young, Thomas Jefferson School of Law (
We invite you to submit an abstract of a 20-minute paper that you would like to deliver at the conference. Abstracts should be between 250 and 500 words and sent to Christine Corcos at the email address above accompanied by the author’s brief biographical statement. Please put “Law and Magic Conference June 2014” in the email subject line and submit the abstract and biographical statement no later than January 6, 2014.  We will send notifications regarding acceptance of presentations by February 1, 2014.
If you would like us to consider your paper for publication,  please indicate that in the body of your email.  Conference papers accepted for publication will appear in the Spring 2015 issue of the Thomas Jefferson Law Review.
Please address questions to Christine Corcos at the email address above.

November 2, 2013

The Impact of JFK's Death On Our Culture

The Guardian examines depictions of JFK's assassination in popular culture.

Narrative, Constitutional Interpretation, and the Second Amendment

Ruthann Robson, CUNY School of Law, has published 27 Words at 13 MEMOIR: The Guns Issue 85 (2013). Here is the abstract.

The 27 words of the Second Amendment formed the basis of the United States Supreme Court's decision in District of Columbia v. Heller (2008), in which the 5-4 majority relied upon a wealth of interpretations of an "individual right" that accelerated after the assassination of President JFK. This blend of intellectual and "popular" constitutionalism has continued after Heller, despite mass shootings with assault weapons, with continued support for a particular construction of the text of the Second Amendment. This piece interweaves constitutional histories, theories, cases, text, and scholarship of the Second Amendment with popular culture and personal narrative to query whether the interpretation of an individual right inherent in the "27 words" should continue to prevail.
Download the article from SSRN at the link. 

October 30, 2013

Present at the Digital Creation...of Mary Shelley's Monster

If you're anywhere in or around New York City, tag October 31st on your calendar and head for the New York Public Library. You can check out (literally and digitally) Mary Shelley's Frankenstein notebooks and associated materials. More here from the Chronicle of Higher Education.

October 29, 2013

Rhetoric and Justice at Guantanamo

Brian Christopher Jones, Academia Sinica, Institutum Iurisprudentiae (IIAS), has published A Triumph of Ill Conceived Language: The Linguistic Origins of Guantanamo's 'Rough Justice' at 1 Hastings Law Journal Voir Dire 1 (2013). Here is the abstract.

Throughout the years, the Naval Base at Guantanamo Bay has witnessed an abundance of intriguing linguistic words and phrases. Yet the language that has had the most significant impact throughout the years has been the words and phrases used in the administration of justice regarding the detainees being held on terrorism charges. Wall St. Journal Supreme Court reporter Jess Bravin’s book, 'The Terror Courts: Rough Justice at Guantanamo Bay,' thoroughly chronicles how the use of military commissions came about for the first time since the Second World War, and pointedly demonstrates the abundance of problems they faced once established. In addition to telling the story of Marine Corps lieutenant colonel Stuart Couch, an earnest military prosecutor who later becomes exhaustively disenchanted with the commissions, the book chronicles the new linguistic frontiers in the American legal community. This piece analyzes how particular language used throughout the establishment and execution of the commissions significantly differed from American legal traditions. In particular, the essay focuses on four linguistic changes that had considerable influence: (1) From Due Process to “Full and Fair”; (2) From Classified to “Protected”; (3) From Custodial Interrogation to “Enhanced Interrogation”; and (4) From Acts of Terrorism to “Material Support for Terrorism.”
Download the essay from SSRN at the link. 

AIDEL's International Conference 2013 Set for November 14-16 In Verona

The Associazione Italiana Diritto e Letteratura (AIDEL) announces its International Conference 2013: "Pwers of Voices/Voices of Power" will be held in Verona from November 14 through November 16. Here is a link to the final program. The conference will include talks by Jeanne Gaakeer, Melanie Williams, Heinz Antor, Patrizia Nerozzi, Desiree Fondaroli, Cristina Costantini--and discussions of Shakespeare, Apuleius, Laurence Sterne, Supreme Courts and labor rights. It looks like it will be quite an interesting event.

A New Book On Artists' Moral and Human Rights

A new book announcement from Hart Publishing:


Freedom of Artistic Expression
Essays on Culture and Legal Censure
Paul Kearns
This book presents a unique and comprehensive examination of the human and moral rights of artists. In what is arguably the first exhaustive book-length account of artists' rights, Paul Kearns explores the problems associated with censorship, both from philosophical and legal perspectives, and focuses on the various ways in which the morality of art is legally regulated in different jurisdictions. In relation to human rights, English, French and American law, the law of the European Convention on Human Rights, European Union law and public international law are all closely scrutinised to discover the extent to which they offer protection for artistic freedom. The author also examines domestic and international law in respect of artists' moral rights, the law of copyright and related laws. In short, the book provides an original, and sometimes controversial, analysis of persistent concerns regarding the legal regulation of the arts universally, doctrinally and theoretically, and seeks to offer an holistic treatment which will appeal to art lawyers, artists and those interested in the future of the arts. 
The Author

Paul Kearns is a Senior Lecturer in Law in the University of Manchester, where he teaches Public International Law, Human Rights Law and, as a specialist yet popular topic, Law, Literature and Art. 

Book Details Oct 2013     260pp     Hbk     9781841130804     RSP: £50 / €65
DISCOUNT PRICE: £40 / €52  


To receive the 20% discount online please write ref: INLL in the voucher code field and click apply: 

Or, please contact Hart Publishing by telephone or e-mail and quote reference INLL when placing your order

Hart Publishing Ltd, 16C Worcester Place, Oxford, OX1 2JW, UK
Telephone Number: 01865 517530; Fax Number: 01865 510710

October 28, 2013

From Inside Bars To Sitting for the Bar

From The Hollywood Reporter: NBC has ordered up a script of Shon Hopwood's memoir Law Man from Carol Mendelsohn and the result may be headed for the small screen. In his colorful youth, Mr. Hopwood was a bank robber. After jail time, and redemption, he finished up law school and will be clerking for a judge on the D.C. Circuit.

Listen to an interview with Mr. Hopwood here on NPR. More here from the Huffington Post.

October 25, 2013

The Establishment Clause, Religious Symbols, Endorsement, and Coercion

Claudia E. Haupt, Columbia University Law School, is publishing Active Symbols in 55 Boston College Law Review (2014). Here is the abstract.

Visual representations of religious symbols continue to puzzle judges. Lacking empirical data on how images communicate, courts routinely dismiss visual religious symbols as “passive.” This Article challenges the notion that symbols are passive, introducing insights from cognitive neuroscience research to Establishment Clause theory and doctrine. It argues that visual symbolic messages can be at least as active as textual messages. Therefore, religious messages should be assessed in a medium-neutral manner in terms of their communicative impact, that is, irrespective of their textual or visual form.
Providing a new conceptual framework for assessing religious symbolic messages, this Article reconceptualizes coercion and endorsement — the dominant competing approaches to symbolic messages in Establishment Clause theory — as matters of degree on a spectrum of communicative impact. This focus on communicative impact reconciles the approaches to symbolic speech in the Free Speech and Establishment Clause contexts and allows Establishment Clause theory to more accurately account for underlying normative concerns.

Download the article from SSRN at the link.