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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