April 30, 2013

Body Talk

Genevieve Lakier, University of Chicago Law School, is publishing Sport as Speech in the University of Pennsylvania Journal of Constitutional Law (forthcoming). Here is the abstract.

Sports play a tremendously important role in American public culture, yet games of spectator sport are not generally recognized as expression protected by the First Amendment. This is notwithstanding the extension in recent years of First Amendment protection to a wide variety of other kinds of nonverbal art and entertainment. This Article argues that the denial of free speech protection to spectator sport is wrong both doctrinally and when considered in light of the aims and purposes of the First Amendment. Drawing upon an extensive body of social scientific research examining the practice and cultural significance of spectator sports, it argues that games communicate the sorts of messages to which First Amendment protection extends. In providing viewers dramatic spectacles of victory and defeat, and in offering fans a symbol around which to rally around, spectator sports also reflect and help shape public attitudes and beliefs about individual excellence, political community and identity, race, gender, and sexuality — even competition itself. The Article argues that the same justifications that support the extension of First Amendment protection to art and entertainment therefore support extending protection to spectator sport, and that the exclusion of spectator sports from the category of expressive conduct furthers none of the purposes of the First Amendment. Instead, it merely distorts the doctrine, by relying on an ultimately unjustifiable distinction between artistic and athletic performance, and live and mediated speech.
Download the full text of the article from SSRN at the link.

Legal Positivism and the Pluralist Legal World

Mauro Zamboni, Stockholm University Faculty of Law, has published 'A Legal Pluralist World'… or the Black Hole for Modern Legal Positivism. Here is the abstract.

One can see how the modern legal positivism, on one hand, is in front of a reality of legal globalization and increasing legal pluralism in many areas of law, that is a reality (e.g. soft-law) challenging some of the fundamental paradigms endorsed by this legal movement (e.g. the pedigree thesis). On the other hand, modern legal positivists have taken a quite passive attitude toward this challenge, either by abandoning the legal positivism as a whole to its destiny or by simply continuing to focus upon traditional (i.e. pre-globalization) issues as the fundamental ones to be tackled.
In this respect, the goal of this paper is certainly neither to tackle these potential dangers hanging over the modern legal positivism’s future nor to rewrite the basic dogmas characterizing legal positivism. The goal is much humbler: to suggest a shift of attention among legal positivists towards questions which have always been present in their program (though often in secondary terms), as also their solutions (often already present in the legal positivist works). This shift would possibly help the legal positivism movement to circumvent the black hole represented by legal globalization (and its legal pluralism), a black hole where the distinction between law and non-law (i.e. the major tenant of legal positivism and, I would dare say, of the modern Western legal culture) seems to vanish, putting the very existence and legitimacy of the legal phenomenon under question.
In order to fulfill this task, this paper will start in Part One by describing what it means nowadays to have a legal positivist approach and in particular what its core message to the legal (and non-legal) community is. In this respect, Herbert L. A. Hart’s idea as to the nature and role of the rule of recognition will be briefly sketched. Once it has been established what being a legal positivist actually means, Part Two will present some of the reasons why the ongoing process of globalization, and the consequent establishment of a pluralist legal world, appears to threaten some of the fundamental tenants of modern legal positivism (or, as I will try to show, “supposedly fundamental” tenants). Finally, in Part Three, some changes of focus in the legal positivist program will be suggested, in order for this legal theoretical movement not only to be able to survive the challenges of the legal globalization but also in order for it to keep its predominant position among the legal actors in a pluralist legal world.
Download the full text of the paper from SSRN at the link. 

April 29, 2013

Lost In Translation

Andy Martin muses on the difficulty of translation for the Opinion section of the New York Times. Think about how much more treacherous the task is in law, in which a great deal of what we cling to is words and the methods in which we fit them together. 

April 25, 2013

New Books On Law and the Humanities From DeGruyter

New books available from DeGruyter:

Karen-Margrethe Simonsen has edited Law and Justice in Literature, Film and Theatre: Nordic Perspectives (Law & Literature; 5). 

Aims and Scope

This volume is a Nordic contribution to research on law and humanities. It treats the legal culture of the Nordic countries through intensive analyses of canonical Nordic artworks. Law and justice have always been important issues in Nordic literature, film and theater from the Icelandic sagas through Ludvig Holberg and Henrik Ibsen to Lars Noréns theatre and Lars von Trier's Dogme films of today. This book strives to answer two fundamental questions: Is there a special Nordic justice? And what does the legal and literary/aesthetic culture of the North mean for the concept of law and justice and for the understanding of the interdisciplinary exchange of law and humanities? The concept of law and literature as a research area was originally developed in countries of common law. This book investigates law and humanities from a different legal tradition, and contributes thus both to the discussion of the general and the comparative studies of law and humanities.

Table of Contents

Karen-Margrethe Simonsen
Preface 1
Ian Ward
Crossing Borders 5
Ditlev Tamm
Law and Literature in a Nordic Legal Perspective 11
Hans Hauge
Nordic Sameness and Difference 25
Peter Garde
“With Laws Shall Our Land Be Built Up”.
The Law in the Sagas – Ideal and Failure 45
Toomas Kotkas
Two Conceptions of Justice in the Kalevala: A Nietzschean Reading 63
Arild Linneberg
From Natural Law To The Nature Of Laws: Ludvig Holberg 77
Karen-Margrethe Simonsen
The Confession of a Judge.
On Narrative Desire and Law in Steen Steensen Blicher’s Early Crime Story
“the Pastor of Vejlbye” 85
Bjarne Markussen
Contesting Narratives: Henrik Ibsen’s A Doll’s House and Trygve Allister
Diesen’s Hold My Heart 103
Ari Hirvonen
The Subject of the Law 119
Helle Porsdam
From ‘Law and Literature’ to ‘Law and Humanities’: Transatlantic Dialogues
on Film – the Case of Lars von Trier 149
vi Contents
List of contributors 167

Aims and Scope

The past few decades in legal and literary studies have challenged the boundaries raised by the different concepts of law and literature espoused by a great variety of theorists. Law's traditionally assumed disciplinary autonomy has been challenged by those who have pursued interdisciplinary methods of research. In particular, the concept of the sublime has moved out of the strictly philosophical and literary fields and crossed the borders between disciplines, finding an application also in the juridical field. On one hand, this volume proposes that the ethical aspect involved in the legal sublime is to contain the arrogance of the law. On the other hand, the volume draws attention to the "and" of interdisciplinary literary-legal studies and offers new daring comparisons between philosophical fields and between apparently distant historical periods.

Table of Contents

Daniela Carpi
Introduction 1: The Sublime of Law fi 1
Jeanne Gaakeer
Introduction 2: On the Threshold and Beyond:
An Introductory Observation fi 15
Cristina Costantini
Representing Law: Narrative Practices, Poetic Devices, Visual Signs and the
Aesthetics of the Common Law Mind fi 27
Maria Aristodemou
Bare Law Between Two Lives: José Saramago and Cornelia Vismann on Naming,
Filing and Cancelling fi 37
Melanie Williams
Liminal Tensions in Public to Private Conceptions of Justice: Nussbaum, Woolf
and the Struggle for Identity fi 53
Julián Jiménez Heffernan
“Under the Force of the Law”: Communal Imagination and the Constitutional
Sublime in Walter Scott’s The Bride of Lammermoor fi 73
Jeanne Clegg
Moll Flanders,Ordinary’s Accounts and Old Bailey Proceedings fi 95
Sidia Fiorato
Ariel and Caliban as Law-conscious Servants Longing for Legal
Personhood fi 113
Laura Apostoli
Altered Bodies, Fragmented Selves: Reconstructing the Subject in Fay Weldon’s
The Cloning of Joanna May fi 129
Jeanne Gaakeer
The Business of Law and Literature: to Compose an Order, to Imagine
Man fi 149
Daniela Carpi
Renaissance into Postmodernism: Anticipations of Legal Unrest fi 177

Conference On Law and Literature In Diaspora Studies To Take Place in May, 2013

Dr. Daniela Carpi, University of Verona, and President of the Associazione Italiana Diretto e Letteratura announces a Conference on Law and Literature in Diaspora Studies, May 6-9, 2013. Details below. More information available by clicking on the link here.


Law and Literature in Diaspora Studies

Villa Vigoni-Gespräche

Villa Vigoni, 6-9 MAY 2013


Programm und Teilnehmerliste / Programme and Participants:

Monday, 06 May 2013
19.00 Welcome Reception, Aperitif
19.30 Dinner

Tuesday, 07 May 2013
9.30   Opening addresses
Prof. Dr. Immacolata Amodeo, Generalsekretärin, Villa Vigoni
Prof. Dr. Daniela Carpi (Verona), Convenor
Prof. Dr. Klaus Stierstorfer (Münster), Convenor
9.30   Opening Discussion: Set-up, Procedures, Possible Outcome
All Participants
Chair: Profs Carpi and Stierstorfer
10.30  Coffee break
11.00  Forum 1 – Theorizing diaspora from the perspective of ‘law and literature’
Chair: Prof. Dr. Fabian Wittreck (Münster)
Prof. Dr. Leif Dahlberg (Stockholm)
Prof. Dr. Jeanne Gaakeer (Rotterdam)
Prof. Dr. Peter Schneck (Osnabrück)
Forum 1 – Plenary discussion
13.00-14.30       Lunch
14.30  Forum 2 – Theorizing the law from the perspective of ‘literary diaspora studies’
Chair: Prof. Dr. Klaus Stierstorfer (Münster)
Prof. Dr. Avtar Brah (London)
Prof. Dr. Janet Wilson (Northampton)
16.00  Coffee break
16.30  Forum 2 – continued
Dr. Franziska Quabeck (Münster)
Prof. Dr. Sridhar Rajeswaran (CASII, India)
18.00  Concluding discussion
19.30 Dinner

Wednesday, 08 May 2013
9.30   Forum 3 – Theorizing literature from the perspective of ‘legal diaspora studies’
Chair: Prof. Dr. Paola Carbone
Dr. Sidia Fiorato (Verona)
Emma Patchett, M.A. (Münster)
Dr. Riccardo Baldissone (London)
11.00  Coffee break
11.15  Keynote: Prof. Dr. Melanie Williams (Exeter)
11.45  Forum 3 – Discussion
13.00-14.30       Lunch
14.30  Forum 4 – Conceptual common ground between legal studies, literary studies, and diaspora studies
Chair: Prof. Dr. Daniela Carpi (Verona)
Prof. Dr. Nilufer Bharucha (Mumbai)
16.00  Coffee break
16.30  Forum 4 – continued
Prof. Dr. Pier Giuseppe Monateri (Torino)
Prof. Dr. Fabian Wittreck (Münster)
18.00  Closing panel discussion: Resume, Outcomes
19.30 Dinner

Thursday, 09 May 2013
9.30   Forum 5 – Prospectus: Methodological, terminological, and conceptual desiderata
Chair: Prof. Dr. Jeanne Gaakeer (Rotterdam)
Dr. Florian Kläger (Münster)
Dr. Karen-Margrethe Simonsen (Aarhus)
Dr. Chiara Battisti (Verona)
13.00-14.30       Lunch

Busman's Holiday

Mary Whisner, University of Washington School of Law, has published Bitten by the Reading Bug, at 105 Law Library Journal 113. Here is the abstract.

I read a lot in my spare time; sometimes my reading includes books about law. This essay discusses a number of recent books and explores how such reading can be helpful for a reference librarian. I begin with James E. Clapp et al., Lawtalk (2011), a wide-ranging book that uses colorful legal terms as springboards for discussions of legal history or policy. And then I have briefer discussions of books related to some of the topics in Lawtalk:
  • Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010)
  • Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice (2009)
  • David E. Stannard, Honor Killing: How the Infamous "Massie Affair" Transformed Hawai'i (2005)
  • Three memoirs about death penalty work:
    • Andrea D. Lyon, Angel of Death Row: My Life as a Death Penalty Defense Lawyer (2010)
    • David R. Dow, Autobiography of an Execution (2010)
    • Ian Graham, Unbillable Hours (2010)
  • Mark Prothero, Defending Gary (2006)
  • Death Penalty Stories (John H. Blume & Jordan M. Streiker eds., 2009) and Legal Ethics Stories (Deborah L. Rhode & David Luban eds., 2006)
  • Shon Hopwood, Law Man
  • Download the full text of the article from SSRN at the link.

    Tracking the Rise of Law As a Scholarly Discipline

    Hans-Bernd Schaefer, Bucerius Law School, University of Hamburg, and Alexander J. Wulf, Bucerius Law School, have published Jurists, Clerics and Merchants: The Rise of Learned Law in Medieval Europe and Its Impact on Economic Growth. Here is the abstract.

    Between the years 1200 and 1600 economic development in most parts of Europe gained momentum. By the end of this period per capita income in Western Europe (excluding Orthodox countries) was well above the income levels in all other regions of the world. We relate this unique development to the resurrection of Roman law, which went hand in hand with the rise of law as a scholarly and scientific discipline. In this paper we investigate two competing hypothesis on the impact of these processes on economic growth in Medieval Europe: a) that the rules of Roman law were conducive to the rise of commerce and economic growth and b) that growth occurred not as a result of the reception of substantive Roman law but rather because of the rational scientific and systemic features of the new law and its training of jurists in the newly established universities. Using data on city population as a proxy for economic growth we find that the decisive impact for economic development was not primarily the content of Roman law, but the emergence of a legal method by glossators and commentators in their interpretation and systematization of the sources of Roman law (Corpus Juris, Digests), which originally consisted of a huge collection of cases. The endeavor to extract general normative conclusions from theses sources led to abstraction, methodology, and the rise of law as a scholarly discipline. Wherever law faculties were founded anywhere in Europe jurists learned new legal concepts and skills which were unknown before and conducive for doing business.
    Download the full text of the paper from SSRN at the link. 

    Call For Papers

    Call for papers from the Lavender Law Conference & Career Fair

    Lavender Law 2013, San Francisco, CA
    August 22-24Invitation and Call for PapersJunior Scholars Forum 

    Dear Friends and Colleagues,

    This year the Lavender Law® Conference & Career Fair will be held August 22-24, 2013 at the Marriott Marquis in San Francisco, CA. Lavender Law brings together the best and brightest legal minds in the lesbian, gay, bisexual, and transgender (LGBT) community.

    To celebrate our community of scholars, Lavender Law® is hosting a Junior Scholars Forum again this year. If you are a junior law professor (teaching 6 years or fewer), or a recent law school graduate or fellow who is writing scholarship focusing on the nexus between the law, gender, and sexuality, we encourage you to submit a proposal for consideration. Proposals can be in the form of a full draft or in the form of an expanded abstract (approximately 1-2 pages in length).
    If your proposal is accepted, you will be invited to present your work at the 2013 Lavender Law conference.
    To submit a proposal for consideration, please email your submission to: scholars@lgbtbar.org, and cc: Courtney Joslin (cgjoslin@ucdavis.edu).
    The deadline for submissions is June 15, 2013.

    April 24, 2013

    The Lure of Poetry and the Law of Punshiment

    Yxta Maya Murray, Loyola Law School, Los Angeles, has published Punishment and the Costs of Knowledge, in Hearing Heaney (Four Courts Press, 2013/2014). Here is the abstract.

    A too-bookish law professor doesn't know if literature has helped refine her position on the death penalty, or just turned her into an insufferable snob: An essay on elitism, bibliomania, confusion, and capital punishment.
    Download the full text of the essay from SSRN at the link. 

    April 23, 2013

    Law and Trauma in the Work of Art Spiegelman

    Karen Crawley, Griffith Law School, and Honni Van Rijswijk, University of Technology, Sydney, have published Justice in the Gutter: Representing Everyday Trauma in the Graphic Novels of Art Spiegelman. Here is the abstract.

    Scholars working at the intersection of law and trauma have often turned to literature to supplement the law’s version of justice. In this article, we consider what the unique formal properties of comics – which we refer to here as graphic novels – might bring to this pursuit, by reference to Art Spiegelman’s Maus (1996) and In the Shadow of No Towers (2004). We suggest that these two works offer a critique of the underlying model of trauma upon which law relies, suggesting alternative understandings of trauma in a mode which is particularly instructive for law. Although Spiegelman organizes his treatment of trauma through specific events that have defined the twentieth and twenty-first centuries – the Holocaust and 9/11 – he represents the impact, as well as the ethical and aesthetic questions of these experiences, in ways that radically challenge the supremacy of the event by showing the ways in which the event fails to be contained.
    Download the full text of the paper from SSRN at the link. 

    Dr. Seuss and Children's Rights

    Jonathan Todres, Georgia State University College of Law and Sarah Higinbotham, Georgia State University, have published A Person's a Person: Children's Rights in Children's Literature. Here is the abstract.

    Although the Convention on the Rights of the Child is the most widely ratified human rights treaty in history, children’s rights are still seen in many circles as novel and quaint ideas but not serious legal theory. The reality, however, is that the realization of children’s rights is vital not only for childhood but for individuals’ entire lives. Similarly, although the books children read and have read to them are a central part of their childhood experience, so too has children’s literature been ignored as a rights-bearing discourse and a means of civic socialization. We argue that children’s literature, like all narratives that contribute to our moral sense of the world, help children construct social expectations and frame an understanding of their own specific rights and responsibilities. Arguing that literature is a source of law for children, we explore children’s literature with a view to examining what children learn about their own rights, the rights of others, and the role of rights more broadly in a democratic society. Using Dr. Seuss as a test case, this Article explores the role of children’s literature in children’s rights discourses. This Article also examines recent empirical work on the benefits of human rights education, connecting that research with law and literature perspectives. Ultimately, this Article aims to connect and build upon the fields of children’s rights law, law and literature, children’s literature criticism, human rights, and cultural studies to forge a new multidisciplinary sub-field of study: children’s rights and children’s literature.
    The full text is not available from SSRN. 

    April 22, 2013

    Original Interpretation

    Jack M. Balkin, Yale University Law School, is publishing Verdi's High C in the Texas Law Review (forthcoming). Here is the abstract.

    This article continues the discussion that Sanford Levinson and I began over twenty years ago about the relationships between law, music, and other performing arts. It uses as its central example an actual controversy that occurred at the La Scala Opera house in December 2000, when a tenor failed to sing a high C in Verdi's Il Trovatore and the audience erupted in boos, blaming the conductor for a failure of interpretation. Maestro Riccardo Muti defended his choice on the ground that the C does not appear in Verdi's original score; however there is a long tradition of Italian tenors displaying their abilities by signing the high C, and audiences have come to expect it. In fact, one Italian music critic argued that even if Verdi had not written the high C, "it was a gift that the people had given to Verdi" -- an assertion that sounds remarkably like democratic constitutionalism.
    The article proceeds through the many arguments that have been offered for and against Maestro Muti's interpretive position. They turn out to be virtually the same as the arguments that lawyers make about constitutional interpretation. This similarity is not accidental. Like (certain genres of) music and drama, law involves a text that has to be put into action by interpreters before an audience. And all three practices involve a "triangle of performance" -- an intricate set of relationships and duties between the creators of texts, the interpreters of texts, and the audiences before whom the texts are performed.
    As a result, in law, music, and drama alike, there are a familiar set of styles (or modalities) of argument that participants generally use to justify their choices about how to bring a text to life, or, in the words of the American Legal Realists, to put law into action.
    Not only are the styles of argument similar, but performances in law, music, and drama are also constrained by traditions and genres of performance. Just as in law, there are certain interpretations in music and drama that are "off the wall" and "on the wall" at any point in time. And, just as in law, these conventions can change over time through determined action by movements and groups.
    The differences between law and the performing arts, however, are just as important as the similarities. Legal performances are usually canonical in a way that musical and dramatic performances are not. It is mandatory to interpret and apply laws in a sense in which it is not mandatory to interpret and perform artistic works like Il Trovatore. Second, at least in the United States, interpretation is hierarchically organized. If a lower court disobeys the interpretation of a higher court, a higher court has the right to reverse it. On the other hand, when Riccardo Muti decides that he is going to perform the G in the Verdi's original printed score instead of the traditional high C, his decision does not have the same effect. Nothing prevents another opera conductor from performing the high C that very same night in another opera house somewhere in the world. And if another conductor does so, there is very little that Muti can do other than criticize. In short, both the similarities and the differences between law, music and drama concern (1) how conventions of performance are organized, defended and enforced, (2) how they are embedded in institutions, and (3) how they change over time.
    Download the full text of the article from SSRN at the link.

    Edward de Grazia Dies

    Edward de Grazia, the distinguished First Amendment lawyer, civil rights advocate, and  Law and Humanities Institute founding board member, has died. Mr. de Grazia handled important cases for publisher Barney Rosset of Grove Press, and wrote several influential books about free speech, including Girls Lean Back Everywhere: The Law of Obscenity and the Assault on Genius (Random House, 1992). Mr. de Grazia also helped found the Cardozo Law School of Yeshiva University. More here from the Washington Post. 

    April 19, 2013

    Henry at Canossa

    Frederick Mark Gedicks, Brigham Young University Law School, is publishing True Lies: Canossa as Myth in the San Diego Law Review. Here is the abstract.

    This essay is a response to Paul Horwitz, “Freedom of the Church without Romance,” to be published as part of a symposium on “The Freedom of the Church.” The essay endorses Horwitz’s central thesis that advocates of a contemporary “freedom of the Church” have overlooked historical complexities in marking the 11th-century investiture conflict between Henry IV and Pope Gregory VII, often referred to simply as "Canossa" after the small Emilian village where Henry sought absolution from Gregory, as the birth of that freedom.
    The essay goes beyond Horwitz to argue that the historical account of “Canossa” presupposed by freedom-of-the-Church advocates is literally false. “Canossa,” instead, is a myth. More salient, nonmythical analogies for a “freedom of the Church” exist in U.S. constitutional history: genuine state sovereignty and dual-sovereignty federalism from the 19th century, and state dignity and native American domestic dependency from the contemporary era. These more historically accessible analogies all suggest that any “freedom of the Church” in U.S. constitutional doctrine is greatly diminished from the robust freedom argued for by those who invoke “Canossa” as that freedom’s defining moment.
    But even the mythical “Canossa” remains important. Myths are stories that a society tells about itself, stories that preserve and clarify its deepest values and commitments. Like the “myth of Magna Carta” that has exerted so much influence on English and American constitutional law, “Canossa” emphasizes the dangers to liberty from a government that sees no bounds on its jurisdiction and authority. Though historically false, “Canossa” might yet be mythically true.
    Download the full text of the essay from SSRN at the link. 

    April 18, 2013

    I Think That I Shall Never See...

    Not exactly law-related but still interesting, Poem in Your Pocket Day demonstrates the reach of the humanities across the disciplines--this time to the STEM folks. Check out this story on Calliope's charms from the Chronicle of Higher Education.

    Using Film In Con Law: Defining Religion Under the First Amendment With the Help of "Big Fan"

    Jay Wexler, Boston University School of Law, has published Some Thoughts on the First Amendment's Religion Clauses and Abner Greene's Against Obligation, with Reference to Patton Oswalt's Character 'Paul from Staten Island' in the Film Big Fan, which is forthcoming in the 2013 volume of the Boston University Law Review. Here is the abstract.

    In this short contribution to a symposium held at Boston University in the fall of 2012, I review Abner Greene's recent book Against Obligation by considering whether Greene's broad theory of freedom from state obligations under the Free Exercise Clause of the First Amendment would protect the maniacal New York Giants fan "Paul from Staten Island," portrayed by the ridiculously talented Patton Oswalt in Robert Siegel's hilarious film "Big Fan." I also explain how I use the film in my Law and Religion class to teach the Free Exercise Clause and the deeply perplexing question of how the word "religion" ought to be defined in the First Amendment. Any theory of the Religion Clauses that would protect Paul from Staten Island, I suggest, might be a theory worth reconsidering.
    Download the full text of the essay from SSRN at the link. 

    April 17, 2013

    Dr. Seuss, Human Rights, and Self-Knowledge

    Peter Nicolas, University of Washington School of Law, is publishing The Sneetches as an Allegory for the Gay Rights Struggle: Three Prisms in the New York Law School Law Review, volume 58 (2014). Here is the abstract.

    Dr. Seuss’s classic children’s story The Sneetches, with its two classes of persons — the Star-Belly Sneetches and the Plain-Belly Sneetches — has been invoked by different minority groups over the years as an allegory for discriminatory treatment by the majority against that group, with a particular focus on anti-Semitism and discrimination against African-Americans. In this essay, I seek to invoke the themes found in the story as an allegory for the modern struggle for gay rights in the United States viewed through three different prisms.
    The first, and most obvious, is the battle between the heterosexual majority and the gay minority represented by the Star-Belly and Plain-Belly Sneetches, respectively. The former seek to distinguish themselves from the latter through laws regarding marriage, parenting, and service in the military, as well as access to certain other markers of social acceptance, including the ability to donate blood and membership in private organizations such as the Boy Scouts.
    However, The Sneetches serves as an excellent allegory for two mis-en-abîmes in the struggle for gay rights in the United States. One of these stories-within-the- story is a struggle between two different minority groups — gays and African-Americans — with some in the latter group rejecting efforts by the former to draw analogies to their own civil rights struggle. The second is a struggle between two different sub-groups of gays and lesbians — assimilationists and non-conformists — with the latter critical of what it views as insecurity on the part of the former in seeking mere formal equality by erasing valuable differences that set gays and lesbians apart from heterosexuals. Indeed, in this second struggle, some non-conformists have come out against the rights of gays and lesbians to marry or serve in the military.
    In this essay, I demonstrate that in these struggles, each of these groups — African-Americans, assimilationist gays, and non-conformist gays — simultaneously internalize the discriminatory impulses of the Star-Belly Sneetches and the insecurities of the Plain-Belly Sneetches. Relying on the insights of Social Dominance Theory, I conclude that The Sneetches is not merely a story about a struggle between two different classes of people within society, but also about a struggle within each of us as individuals.
    Download the full text of the article from SSRN at the link. 

    April 12, 2013

    TV For the CEO

    Bloomberg Businessweek offers up this view of the popular series "Game of Thrones." Yes, it's relevant for the boardroom, according to Logan Hill. But doesn't that suck all the fun right out of it?

    April 11, 2013

    TV For the Cynical

    The New York Times' Alessandra Stanley on the rise of the politically-charged television series. I'll take my fictional politicos with extra scandal, please.

    Victorians and the Law: Call For Papers

    Simon Stern of the University of Toronto Law Faculty & English Department sent in this info:

    EXTENDED DEADLINE: 10th MAY – CFA: Victorians and the Law

    Call for Papers: Victorians and the Law
    Victorian Network is an MLA-indexed online journal dedicated to publishing and promoting the best postgraduate work in Victorian Studies.
    The eighth issue of Victorian Network, guest edited by Dr Cathrine Frank (University of New England), will take a fresh look at the interfaces between literature and legal cultures in the Victorian period. From the Reform Acts through the growth of colonial law to the establishment of divorce courts, nineteenth-century legislature shaped and responded to the same cultural developments – the rise of the middle class, industrialisation, imperial expansion, and shifting ideas about gender, to name but a few – that were also eagerly debated by literary writers. The politics and aesthetics of many nineteenth-century novelists, poets and playwrights were informed by a sustained engagement with legal debates and practices. Their works often reflected on, and sometimes challenged, the law’s construction of civic, social and gender identities, while also casting a critical (or appraising) eye over the bureaucratic apparatus on which legal practice was built.
    We are inviting submissions of no more than 7000 words. Possible topics include, but are by no means limited to, the following:
    -       wills, trusts and guardianship accounts: the materiality of the legal archive
    -       Victorian trials, sensation and theatricality
    -       criminal law, lawlessness, realist epistemologies and the detective plot
    -       Victorian law and gender
    -       the reaches of the law: imperialism and the legal & literary creation of colonial identities
    -       intersections between genres of legal and literary writing
    -       “brought up a barrister”: nineteenth-century authors, legal training, professionalization and the bar
    -       radical politics, social change and the working class in Victorian literature and the law
    -       debates about rights to intellectual and literary property
    -       the spaces and cultural venues of legal practice
    All submissions should conform to MHRA style conventions and the in-house submission guidelines. The deadline for submissions to the next issue is 10th May, 2013. Contact:victoriannetwork@gmail.com.

    April 10, 2013

    Using Literary Theory To Illuminate Copyright Doctrine

    Zahr Said, University of Washington School of Law, is publishing Fixing Copyright in Characters: Literary Perspectives on a Legal Problem, in volume 35 of the Cardozo Law Review (2013). Here is the abstract.

    Scholars have long noted that copyright in characters is fraught with uncertainty and inconsistency. This Paper argues that an interdisciplinary approach sheds light on the doctrinal confusion. Literary history, theories, and texts demonstrate that the very factors that gave rise to characters’ centrality to modern literature may be the factors that make protecting them independently under copyright difficult. The more central characters become to works of literature, the less separable they will be from those works for the purposes of receiving independent copyright protection. Literary theories of reading also suggest that characters may fail to satisfy one of copyright’s fundamental requirements: fixation. Contemporary theories of reading practices hold that reader engagement is necessary in the mental process that “completes” characters. If this is true, then in a fundamental way, while texts may be fixed, characters, outside their texts, are not.
    Literature exposes the reductive nature of the law’s treatment of characters, and its simplistic view of the proper scope and implementation of independent copyright protection. The Article concludes that copyright law would do well to take account of the ways in which literary texts and theories reveal characters to be much more complicated than copyright law currently contemplates. Although literary insights into character do not themselves require either expansion or contraction of protection — dependent as reforms are on policy concerns endogenous to copyright — they do fundamentally change the nature of the inquiry. These insights expand the law’s understanding of characters and highlight theoretical and doctrinal implications of the confusion currently stymieing character protection under copyright law.
    Finally, this Article comes on the heels of several very high-profile cases. The issue itself — the scope and strength of copyright in literary characters — is one that remains vital in a landscape of cross-marketing, IP licensing, and sequel-driven literary and film franchises. In the past two to three years alone, major cases have been brought, or resolved, based on Harry Potter, The Hobbit, Betty Boop, Sherlock Holmes, and Holden Caulfield of The Catcher in the Rye. Yet other than two or three excellent student notes, scholarship in this area has not been sustained or focused on this topic in over two decades. A major rethinking of the doctrines in this area is necessary, and timely. This Article aims to launch a conversation that will help to revitalize the flagging scholarly discussion in an area that is of critical importance to the entertainment, publishing, and gaming industries, as well as a crucial source of livelihood for authors and creators.
    Download the full text of the article from SSRN here. 

    April 9, 2013

    The Mormon War of 1838

    T. Ward Frampton, University of California, Berkeley, School of Law, is publishing 'Some Savage Tribe': Race, Legal Violence, and the Mormon War of 1838, in the Journal of Mormon History (forthcoming). Here is the abstract.

    This paper argues for a reinterpretation of the Mormon War of 1838, during which the governor of the State of Missouri issued a formal order to "exterminate" approximately 10,000 Mormon men, women, and children. It argues that the politics of race - largely overlooked in most accounts of the hostilities - were central to the conflict on a variety of levels: fears of racial violence, stoked by perceived Mormon sympathy toward Native Americans and abolitionism, helped give rise to the conflict; Mormons gradually became racially recast as non-white leading up to the Extermination Order; and, curiously, Missourians frequently engaged in "racial masking" (wearing red and black face paint) when engaged in hostilities. It concludes by arguing that the event is significant not only as a formative moment in the history of the Mormon Church, but also as a window into the intersection of law, race, and violence on the American frontier.
    Download the article from SSRN at the link. 

    April 4, 2013

    A New Book On Alexis de Tocqueville's View of Religion

    The noted Tocquevillean Jean-Louis Benoît has published Alexis de Tocqueville: Sobre las religiones: Cristianismo, hinduísmo e islam (Madrid: Ediciones Ensayo, 2013)(Coleccion Ensayo).

    The Independent Judiciary: South Africa Today and England in the Seventeenth Century

    David Hulme, University KwaZulu-Natal, and Stephen Allister Pete, University of KwaZulu-Natal, School of Law, have published Vox Populi? Vox Humbug! – Rising Tension between the South African Executive and Judiciary Considered in Historical Context – Part One, in volume 15 of Potchefstroom Electronic Law Journal (2012). Here is the abstract.

    This article takes as its starting point a controversy which has arisen around a proposed assessment by the South African government of the decisions of the Constitutional Court, giving rise to concerns that this will constitute undue interference with the independence of the judiciary.
    Part One of this article traces and analyses the developing controversy. It then compares the current clash between the South African Executive and Judiciary to a similar clash which took place in seventeenth century England, between King James I and Chief Justice Edward Coke. Such clashes appear to be fairly common, particularly in young democracies in which democratic institutions are yet to be properly consolidated.
    Although not immediately apparent, the similarities between the situation which existed in seventeenth England at the time of James I and that in present-day South Africa are instructive. In tracing the development of these two clashes between the executive and judiciary, Part One of this article lays the foundation for a more in-depth comparison in Part Two.
    Download the article from SSRN at the link. 

    April 3, 2013

    VAP Position Available

    A job announcement

    Visiting Assistant Professor of American Politics- One Year Replacement
    Department of Political Science, Hobart and William Smith Colleges
    The Department of Political Science invites applications for a one-year, full-time visiting position in American Politics in the field of Law and Politics at the rank of Visiting Assistant Professor beginning in the Fall of 2013; Ph.D. is preferred, advanced ABD will be considered. Applications from those with a specialization in some aspect of Civil Liberties, Civil Rights, or Labor, are particularly encouraged. The ideal candidate will be able to teach a mixture of the following subjects: Public Law, Law and Society, Introduction to American Politics, and/or Political Theory. The successful candidate's work will be informed by theoretical and historical perspectives on questions important to the understanding of politics in the United States.
    The Department values intellectual diversity and supports a wide range of critical and theoretical approaches that help bring people together across subfields as they address questions of power. The Department also supports interdisciplinarity in teaching and research in keeping with the Colleges' longstanding emphasis on liberal arts education. We encourage the creative development of new questions, lines of inquiry, and vectors of critique.
    Evaluation of applications begins April 8, 2013 and will continue until the position is filled. Please send a letter of application, curriculum vitae, writing sample, graduate transcripts, a statement of teaching philosophy, and arrange to have three letters of reference sent to:
    Professor Paul A. Passavant, c/o Jean Salone
    American Politics Search
    Department of Political Science
    Hobart and William Smith Colleges
    300 Pulteney Street
    Geneva, NY 14456
    Hobart and William Smith Colleges are committed to attracting and supporting faculty and staff that fully represent the racial, ethnic, and cultural diversity of the nation and actively seek applications from under-represented groups. The Colleges do not discriminate on the basis of race, color, religion, sex, marital status, national origin, age, disability, veteran's status, sexual orientation, gender identity and expression or any other protected status.
    Hobart and William Smith Colleges are a highly selective residential liberal arts institution located in a small, diverse city in the Finger Lakes region of New York State.  With an enrollment of approximately 2,200, the Colleges offer 62 majors and minors from which students choose two areas of concentration, one of which must be an interdisciplinary program.  Creative and extensive programs of international study and public service are also at the core of the Colleges’ mission.

    Paul A. Passavant
    Associate Professor
    Department of Political Science
    Hobart and William Smith Colleges
    300 Pulteney St.
    Geneva, NY 14456

    The Supreme Court and the Native American

    Kathryn Fort, Michigan State University College of Law, has published The Vanishing Indian Returns: Tribes, Popular Originalism, and the Supreme Court at 57 St. Louis University Law Journal (2013). Here is the abstract.
    Writing history is perilously tricky, weighing narratives, presenting facts, and making stories. This is particularly true when the history directly affects the legal rights of a present-day community. When the Supreme Court of the United States writes history, it imbibes the narrative with both cultural and legal authority, and the story the Court creates needs to be both persuasive and perceived as factual. The Court is not a body of historians, obligated to write nuanced history. However, the Court’s opinions and factual reiterations legitimize those facts and history. Once the Court releases an opinion, the history in it achieves a high level of popular authority.
    As the nation faces cultural divides over the meaning of the “Founding,” the Constitution, and who owns these meanings, the Court’s embrace of originalism is one strand that feeds the divide. The Court’s valuing of the original interpretation of the Constitution has reinforced the Founder fetishism also found in popular culture, specifically within the politics of those identified as the Tea Party. As addressed elsewhere, their strict worship of the Founders has historical implications for both women and African Americans, groups both marginalized and viewed as property in the Constitution. No one, however, has written about how the Court's cobbled historical narrative and their veneration for the Founders has affected American Indian tribes. Tribes barely exist in the Constitution, and the Founders “original” understanding of tribes was that they would inevitably disappear.
    The “vanishing Indian” stereotype, promulgated in the early Republic, reaching an apex in the 1820’s, continues to influence fundamentally how the Court views tribes. Compressing history from the Founding through the Jacksonian era undermines tribal authority and sovereignty within the Court. In its federal Indian law cases, the Court relies on racial stereotypes, and popular conceptions of American history. As a result of these shortcuts, the Court folds all tribes into one large group, empties the American landscape of tribal peoples, and forces tribes into a past where they only exist to disappear.
    Download the article from SSRN at the link.