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.