December 21, 2014

A Review of "Storytelling For Lawyers"

David Dow, University of Houston Law Center, has a nice review of Philip Meyer's Storytelling For Lawyers (Oxford, 2014) at 39 Vermont L. Rev. 13 (2015) (not yet available online). 

December 11, 2014

Scientific Evidence and Medical Malpractice Cases In the Nineteenth Century

Michael Ashley Stein, William & Mary Law School; Harvard Law School, Christopher P. Guzelian, Thomas Jefferson School of Law, and Kristina M. Guzelian, Thomas Jefferson School of Law, have published Expert Testimony in Nineteenth Century Malapraxis Actions at 55 American Journal of Legal History 284 (2015). Here is the abstract.

Medical negligence evolved as an independent tort during the nineteenth century. Despite pervasive professional concerns about its ethicality, paid medical expert testimony became routine. In a manner strikingly similar to modern commentary, prominent jurists disparaged testimony for commonly relating anecdotal experience rather than scientifically derived knowledge. Also notable among cases was a dominant tendency to rule for medical practitioners when both parties presented expert testimony. Conversely, suits resolved in favour of whichever party unilaterally retained a testifying expert.

Download the article from SSRN at the link. 

December 10, 2014

Fifth International Conference On Law, Language, and Discourse, September 2015

The School of Law, Psychology, and Social Work at Örebro University (Sweden) is hosting the 5th International Conference on Law, Language, and Discourse from September 27 to October 1, 2015. Here is a description of the conference with panels, invited speakers, and special events.

Fighting Words

Oren Gross, University of Minnesota Law School, and Fionnuala D. Ni Aolain, University of Minnesota Law School & University of Ulster, Transitional Justice Institute, have published The Rhetoric of War: Words, Conflict and Categorization Post-9/11 in volume 24 of the Cornell Journal of Law and Public Policy (2014).  Here is the abstract. 

Words are a source of immense power. Using them we not only communicate with each other and express our thoughts, but shape thought itself. In turn, the framing of issues and outcomes significantly shapes choices — whether pertaining to private decisions or to public policy. At the same time, reliance on framing as a shortcut also means that whoever manages to control the framing of information would greatly influence, and could manipulate, the interpretation and meaning that recipients of that information are likely to attach to it.
The article addresses the language, rhetoric, status, and legality of “war” by examining the complexity of decision-making for policy-makers in the aftermath of the terrorist attacks of September 11, 2001. It does so by looking both inward, examining presidential war rhetoric in the United States, and outward, analyzing the experience of democratic states with the legal construct of “emergency” and “war” under the relevant international human rights treaties.
We critically examine the role of the President as a national choice architect and the nation’s chief rhetorician and his use of the power of the bully pulpit in the context of war rhetoric — including the War on Poverty, War on Drugs, and the War on Terror — as well in situations when the presidents have elected to steer clear of the war frame and adopted alternatives.

We also analyze the positioning of democratic states post 9/11, as they have adopted, adapted and rejected the language of war and emergency to respond to terrorist threats. In particular we note the growing trend among consolidated democracies to not invoke the established legal mechanisms dealing with emergencies under the relevant international treaties, opting instead to deal with perceived threats under the aegis of ordinary legislation without invoking the framing of “war” or “emergency.” We chart significant indeterminacy indicated by the contradictory usage of the terminology and legal status associated with emergency, derogation and war over time and examine what such varied claims by democratic states mean in the war-emergency-normalcy realm.

Thus, we argue that directing attention to the language and formalities of executive and state positioning is critical not only to understanding the political actions of states, but to engage with the form and substance defining the legal status of conflict and crisis.

Download the Article from SSRN at the link. 

December 8, 2014

Some "Law and" From the Biological Sciences

Hendrik Gommer, CIS Law, has published Integrating the Disciplines of Law and Biology: Dealing with Clashing Paradigms. Here is the abstract.

This article considers the difficulties that a researcher on the border of normative and explanatory sciences may encounter. The article begins with an introduction to the field at stake, namely the integration of law and biology. It appears that this kind of interdisciplinary research is not only a challenge for the researcher himself, but also for his readers. Concepts are not understood, assumptions differ, ‘peers’ are not really peers, and the new paradigm cannot be proven. Even though some scholars might enjoy loneliness, their academic isolation may actually hamper the spreading of their ideas. Science is not only about having the best ideas, but also about having peers. Without peers, achieving a breakthrough can prove to be very difficult. This is sad news for interdisciplinary researchers, but also seems dire news for science as a whole. Major scientific breakthroughs will be significantly delayed. On the other hand, cooperative communities need stability and cannot reward every innovative new idea that has the potential to become a new paradigm.
Download the paper from SSRN at the link.

A look at the "Law and" fields on the other side of the two cultures divide.  

December 4, 2014

The Decline of the Leftist Law Professor?

Brian Z. Tamanaha, Washington University in Saint Louis School of Law has published The Failure of Crits & Leftist Law Professors to Defend Progressive Causes in volume 24 of the Stanford Law & Policy Review (2013). Here is the abstract.

Future generations will look back at the first decade of the twenty-first century as a pivotal time when a huge economic barrier was erected to encumber the path to a legal career. The symbolic announcement of this barrier rang out when annual tuition crossed the $50,000 threshold, now exceeded at a dozen or so law schools. Including fees and living expenses, it costs well in excess of $200,000 to obtain a law degree at most of the nation’s highly regarded law schools and at a number of non-elite ones as well. Law schools thus impose a formidable entry fee on anyone who wishes to follow what, until recently, has long served as a means of upward mobility and access to power in American society.
The pricing structure of legal education has profound class implications. High tuition will inhibit people from middle-class and poor families more than it will deter the offspring of the rich with ample resources. Law school scholarship policies, for reasons I will explain, in effect channel students with financial means to higher ranked law schools, reaping better opportunities, while sending students without money to lower law schools. A growing proportion of elite legal positions will be held by people from wealthy backgrounds as a result. For students who rely on borrowing to finance their legal education, the heavy debt they carry will dictate the types of jobs they seek and constrain the career they go on to have.
Liberal law professors often express concerns about class in American society — championing access to the legal profession and the provision of legal services for underserved communities. Yet as law school tuition rose to its current extraordinary heights, progressive law professors did nothing to resist it. This Article explores what happened and why.
This is offered in the spirit of critical legal studies — as a critical self-examination of the failure of leftist law professors. The Crits were highly critical of complacent liberal academics of their day, arguing that they had a hand in perpetuating an unjust legal system; here I charge liberal legal academia — including the Crits — with perpetuating the profoundly warped and harmful economics of legal education. What follows will offend many of my fellow liberals. It may even lose me some friends. Liberal law professors must see past their anger to reflect on whether there is a core truth to my arguments, to take personal responsibility for what has happened, and to engage in collective action to do something to alter the economics of our operation. If not, the current economic barrier to a legal career may become permanent.

Download the Article from SSRN at the link. 

The Narrative In U. S. Arab Naturalization Cases, 1790-1952

Khaled A. Beydoun, Barry University School of Law, has published Between Muslim and White: The Legal Construction of Arab American Identity at 69 N. Y. U. Ann. Surv. Am. L. 29 (2013). Here is the abstract.

This Article examines the legal origins of Arab-American identity during the racially restrictive Naturalization Era (1790 through 1952), when whiteness was a prerequisite for American citizenship. Ten of the 53 naturalization hearings during this era involved a petitioner from the Arab World. Judges during the Naturalization Era viewed “Arab” as synonymous with “Muslim” identity. Because Muslims were presumed to be non-white, and Arabs were presumed to be Muslims, Arabs were presumptively ineligible for citizenship. But this presumption could be rebutted. Arab Christians could – and did – invoke the fact of their Christianity to argue that they were white. These arguments sometimes secured citizenship for Christian petitioners, but did not always rebut the presumption that every immigrant from the Arab World was Muslim.

Legal scholars have paid insufficient attention to the Arab naturalization cases. These cases reveal not only how judges viewed religion as a proxy for race, but also the ways in which they conflated Arab identity with Muslim identity to do so. This conflation persists today in that many people continue to believe that Arab is synonymous with Muslim, a conflation that is especially salient following the September 11th terrorist attacks. Almost all of the current literature on Arab-Americans centers on how the government’s response to 9/11 made people who are perceived to be Arabs, Muslims, or Middle Eastern vulnerable to legalized forms of racial surveillance, subordination, and violence.

While this body of work is important, this Article introduces a preface to the post-9/11 racialization of Arab-Americans – the racial conflation of Arab and Muslim identity during the Naturalization Era. The courts during this era rendered Arab Muslim immigrants presumptively non-white and inassimilable, while sometimes finding Arab Christians eligible for citizenship and white by law. The legal construction of Arab-American identity in that earlier period helped shape contemporary understandings and misunderstandings of both Arab and Muslim-American identity today.

Download the article from SSRN at the link. 

December 3, 2014

Messianism and Political and Legal Thought

Antoni Abat i Ninet, University of Copenhagen, has published The Messianic Phenomenon in Political and Legal Thought: Where Kelsen and Schmitt Match. Here is the abstract. 

The theological origin of legal and political concepts has been an accepted belief by figures such as Locke, Hume, Smith, Machiavelli and Hobbes. The list of legal authors can also include Robert Cover´s narrative on legal violence, Fitzpatrick or Sanford Levinson. The constitutional texts around the world are good examples of transposition and complicity of theological and juridical thoughts. In the US example, the flag, the Declaration and the Constitution constitutes the holy trinity of what Tocqueville called “American civil religion”. The drafters of the US Constitution consciously played the role of a civil God; the US Supreme Court developed the role of secular prophets; the Constitution was the sacred tablets; and the people of the United States became the chosen people. As the law was received by Moses on the tablets, so too did the constitution adopt a legal, moral and religious character. This paper focuses on the study of messianism and its application to political and legal-constitutional thought aiming to enlighten some of the elements of Carl Schmitt's conceptualization of the “Sovereign” and Hans Kelsen's definition and legitimacy of the “Basic Norm”. The main goal is to identify theological characters of both theories and to analyse the transposition of mystical elements to the secular world to achieve non-disputed legitimacy.

The paper begins facing a difficult challenge, to find out a comprehensible definition of the messianic idea. The first segment is related to definition and elements of the Jewish spirituality on messianism. To achieve this purpose the paper uses the work of Gershom Scholem as a main baseline, but completed with an historical approach of messianism in the Old Testament, the medieval age and in modern Jewish philosophy. The study of the historical evolution is particularly important in this paper because it reflects the wide variation of meanings, aspects and features that the theory of messianism has suffered. The second section analyses the Christian account on messianism, even that an increasing number of scholars consider that Paul never broke away from Judaism but opposed non-Jewish involvement in the Torah, but encouraging Jesus-believing non-Jews to accept their ethnic identity. The Christian spiritual version of messianism deals mainly with the Gospels and the letters of Paul, with the work of Taubes, Saint Paul and Saint Thomas Aquinas’ Summa Theologica.
Once concluding that messianism is no esoteric or simply mysticism, but a theory than can be transposed to politics and law, the paper goes further with the work of Carl Schmitt and Hans Kelsen. How the political (Schmitt) and legal-constitutional (Kelsen) thought have adapted messianic trends in order to achieve legitimacy, recognition or obedience. The role that the “Sovereign” plays in Carl Schmitt’s apocalyptic political theology is analysed and compared with the position and features that the Messiah develops in Jewish and Catholic mysticisms. The second example, which is at the same time more provocative but also innovative, consists in a comparison of the messianic thought with Hans Kelsen’s “Basic Norm”. More concretely, the redemptory role that the first constitution plays in Kelsen's “Pure Theory of Law” and the “faith” needed to accept the no matter how, the constituent process of the basic norm. The field of the paper is theoretical, the realm of the theory more than in the realm of praxis, the paper does not look for practical intentions even that some of the conclusions may have practical effects in the understanding of our constitutional systems. In this sense, the conceptualization and claims of terms such as “rule of law”, “proportionality” and lately “human dignity” in comparative constitutional law can also be defined as messianic.

The full text is not available from SSRN. 

December 2, 2014

The Meaning of Charity

Jonathan Garton, University of Warwick, has published Re Macduff and the Charity of the Wise at 16 Charity Law and Practice Review 21 (2013-14). Here is the abstract. 

This article argues that Re Macduff, a largely overlooked 19th century Court of Appeal decision, should be reassessed as one of the defining cases of modern charity law. In rejecting 'philanthropic purposes' as being within the spirit and intendment of the Preamble to the Statute of Charitable Uses 1601, its influence has subtly but significantly shaped the development of charity law over the past century. En route the article offers a literary and sociological analysis of the protean concept of philanthropy, as contrasted with charity, tracing its shifting meaning from its origins in ancient Greek tragedy to the activities of the great social reformers of the 19th century.

Download the article from SSRN at the link. 

December 1, 2014

The Ups and Downs of U.S. State Criminal Codes

Paul H. Robinson, University of Pennsylvania Law School, has published The Rise and Fall and Resurrection of American Criminal Codes as University of Pennsylvania Law School Public Law Research Paper No. 14-38. Here is the abstract.

This brief essay summarizes the virtues of the modern American codification movement of the 1960s and 70s, putting it in a larger global context, then describes how these once-enviable codes have been systematically degraded with thoughtless amendments, a process of degradation that is accelerating each year. After exploring the political dynamics that promote such degradation, the essay suggests the principles and procedures for fixing the current codes and, more importantly, structural changes to the process that could avoid the restart of degradation in the future.
Download the paper from SSRN at the link. 

Sociolegal Studies in New Zealand

Kim Economides, Flinders University, has published Socio‐Legal Studies in Aotearoa/New Zealand at 41 Journal of Law and Society 257 (2014). Here is the abstract.

This article reviews the development and impact of the socio‐legal field in New Zealand. It begins by assessing the socio‐legal presence within teaching and research conducted across New Zealand's law faculties before analysing factors likely to inhibit future growth of the sub‐discipline in this remote jurisdiction. Having examined how New Zealand's legal scholars map and influence national legal behaviour, without always recognizing contradictions between these objectives or categorizing their research as ‘socio‐legal’, the article goes on to examine how the next generation of socio‐legal researchers might exert stronger influence over the law curriculum and new areas of legal policy. In conclusion, it argues for a distinctive New Zealand approach toward socio‐legal studies and notes that future prospects appear encouraging, and in certain respects more promising than those in the United Kingdom, particularly when considering research impact.
The full text is not available from SSRN.  

Socio-Legal Scholarship In Canada

Harry W. Arthurs, York University Law School (Osgoode Hall) and Annie Bunting, York University, have published Socio‐Legal Scholarship in Canada: A Review of the Field at 41 Journal of Law and Society 487 (2014). Here is the abstract.

This article is the second in an occasional series dealing with the development, current status, and future of socio‐legal studies in selected countries. It follows Kim Economides's review of socio‐legal studies in Aotearoa/New Zealand.
The full text is not available from SSRN.  

Friendship, Imperial Violence, and the Law of Nations

Alecia Simmonds, University of Technology< Sydney, Faculty of Law, has published Friendship, Imperial Violence and the Law of Nations: The Case of Late-Eighteenth Century British Oceania in volume 42 of the Journal of Imperial and Commonwealth History (2014). Here is the abstract. 

This article examines the interrelationship of friendship and violence in European juristic traditions and in British scientific voyaging in Oceania. Drawing upon Roman texts and natural law treatises, it shows how friendship, meaning hospitality and trade, appeared as a right asserted by imperial nations, often with the backing of force. Moving from jurisprudence to imperial practice, this paper examines the coercive elements of cross­-cultural friendship in eighteenth­ century British expansion into Oceania. It suggests that it was in the breach more than the observance that discourses of friendship came to the fore, specifically in resistance to first contact and in accusations of theft. Seen to be motivated by either violent or avaricious passions, theft and native resistance tore the bonds of human sociability asunder. I argue that the significance of friendship was twofold. First, in a context of inter­imperial rivalry, friendship signified native consent in claims of possession over land and thus ensured conformity to legal norms. Second, it promised a system of order governed by norms of affective restraint that could sublimate the passions of natives, voyagers and nations.
Download the article from SSRN at the link.

Time and Movement In the Common Law

Olivia Barr, University of Technology, Sydney, Faculty of Law, has published Walking with Empire at 38 Australian Feminist Law Journal 59 (2013). Here is the abstract. 

This article considers the place of movement in common law and, in particular, the relation between movement and place in the time and space of common law in the Colony of New South Wales. Attending to jurisdiction as a way of sliding beneath the rhetoric and representations of sovereignty and territory that tend to dominate the ways in which we understand the place of law, this article links movement to place and suggests that it is through practices of movement that common law comes to be in place. Drawing on testimony provided in a 1799 colonial trial, the elliptical centre of this article is a burial party that walked into the woods beyond an emerging frontier settlement to bury the dead. Redescribing the movements of this burial party through an attention to some of the technical and material practices of common law provides a way of illustrating how common law moves and how common law comes to be, or at least how common law seems to come to be, in place. Offering a jurisprudential linking of movement to place, therefore, this article suggests it is through material practices of movement in both space and time that common law comes to rest in place. Put simply, this is the suggestion that movement forms common law’s place.

Download the article from SSRN at the link. 

November 27, 2014

Death of P. D. James

Acclaimed British novelist  P. D. James has died, her publisher Faber & Faber has announced on its website.  She was 94. Her novels about police officer Adam Dalgleish, the first published in 1964,  transformed British crime fiction. She was made a life peer in 1991.  More about Baroness James here from CNN. 

November 26, 2014

French Library Announces Discovery of Shakespeare First Folio In Its Collection

Jennifer Schuessler of the New York Times brings us news of the discovery of a Shakespeare First Folio in a small public library in Saint-Omer, France. The librarians originally thought it was an old, but garden variety edition of Shakespeare's works. Mais non! Says librarian Remy Cordonnier, "I didn't instantly recognise it as a book of value," he said. "It had been heavily used and was damaged. It had seen better days. "[But] It occurred to me that it could be an unidentified First Folio, with historic importance and great intellectual value." He called in Shakespeare scholar Eric Rasmussen, who visited the library and verified Mr. Cordonnier's belief that the copy is indeed a First Folio, bringing the number of known surviving First Folios to 233.

And imagine this: the library has an even rarer item in its collection: a Gutenberg Bible. Sounds like even more of a reason for a visit to picturesque and historic Saint-Omer.

A Study of Newspaper Coverage of South Dakota Constitutional Conventions

Candace Spurlin, Catherine Chicoine, Stacy Hegge, and Patrick M. Garry, all of the University of South Dakota School of Law, have published Journalistic Coverage of the 1883, 1885 and 1889 Constitutional Conventions, in volume 59 of the South Dakota Law Review (2014). Here is the abstract.

Newspapers have played a significant role in politics in the United States throughout its history. South Dakota is no exception, newspaper played a significant role in the passage of South Dakota's Constitution and its striving for statehood. Newspapers were so prevalent in the southern part of the Dakota Territory in the late 1800s that more than two hundred and twenty towns published their own papers.

Not only did newspapers proliferate in these prairie towns, but they became intimately involved in territorial and statehood politics. This article reprints selected newspaper articles from across the Territory that highlight the discussions taking place at the three Constitutional Conventions of 1883,1885 and 1889. The final of these three conventions ratified the South Dakota Constitution which ultimately led to statehood in November of 1889.
Download the article from SSRN at the link. 

Legal Narrative and State of Mind

Cathren Koehlert-Page, Barry University School of Law, has published A Look Inside the Butler's Cupboard: How the External World Reveals Internal State of Mind in Legal Narratives at 69 N.Y.U. Ann. Surv. Am. L. 441 (2014). Here is the abstract. 

In Remains of the Day, Mr. Stevens the butler guards his pantry well and does not allow the housekeeper to be "coming and going." When Ms. Kenton intrudes on his private time and wants to see the novel he is reading, he resists. Mr. Stevens's internal monologue about the pantry and all of his interaction with Ms. Kenton reveal his state of mind. A reserved person, Mr. Stevens never comes out and says, "I have feelings for Ms. Kenton, but I am so afraid to let her in. She might wreak havoc on my heart." In fact, most of us are not so constantly self-aware of our emotional states. Thus, in story, the character's interaction with the external world reveals the internal state of mind. The pantry is Stevens' internal world -- it is his well-guarded heart.

In legal narratives, it is even more important to have some sort of concrete proof of internal states of mind. We must prove pain and suffering, emotional distress, intent, insanity, and so on. Simply asserted, "I am suffering," is not convincing and is conclusory. Worse still, the attorney could write, "Bethany was so very sad. She was suffering deep down to her core, and it pained her so." Such a declaration is melodramatic and conclusory.

However, if we view the manner in which Bethany interacts with the world as she suffers, we can feel the emotional weight of that suffering. The alarm goes off, and she turns it off and pulls the covers over her head. She lays in bed and cries all day long. She wants to drag herself to the kitchen to scarf down a pint of ice cream, but each time she tries to roll over, pain shoots down her back...and so on.

This article defines these objective correlatives, shows the difference between them and other writing concepts, and provides examples of effective and ineffective objective correlatives in both fiction narratives and legal narratives.
Some of the fiction works explored included Anna Karenina, Inexcusable, Hamlet, Bud Not Buddy, State of Wonder, and Every Time a Rainbow Dies.

The brief to the U.S. Supreme Court regarding the recent controversial death penalty case, Panetti v. Quarterman is also explored. Mr. Panetti argued that he was not competent to be executed, and his attorney's brief uses Panetti's incoherent connection to the external world to show his incompetent mental state.

Some of the other examples include U.S. v. Johnson and Davis v. Washington.

Download the article from SSRN at the link. 

Language Rights and the Costs of Compliance

Moria Paz, Stanford Law School, has published The Tower of Babel: Human Rights and the Paradox of Language in volume 25, no. 2, of the European Journal of International Law (2014). Here is the abstract.

Key human rights instruments and leading scholars argue that minority language rights should be treated as human rights, both because language is constitutive of an individual’s cultural identity and because linguistic pluralism increases diversity. These treaties and academics assign the value of linguistic pluralism in diversity. But, as this article demonstrates, major human rights courts and quasi-judicial institutions are not, in fact, prepared to force states to swallow the dramatic costs entailed by a true diversity-protecting regime. Outside narrow exceptions or a path dependent national political compromise, these enforcement bodies continuously allow the state actively to incentivize assimilation into the dominant culture and language of the majority. The minority can still maintain its distinct language, but only at its own cost. The slippage between the promise of rights and their actual interpretation carries some important political and economic benefits, but the resulting legal outcome does not provide the robust protection of diversity to which lip service is paid. Importantly, the assimilationist nature of the jurisprudence is not indifferent to human rights. However, instead of advancing maximal linguistic diversity as a pre-eminent norm, the regime that is applied by judicial bodies supports a different set of human rights: those protecting linguistic minorities from discrimination, and promoting equal access of the group to market and political institutions. The result is a tension between two human rights values: pluralism and equality.
Download the article from SSRN at the link. 

November 24, 2014

Teenagers As a Social Construct

Richard Delgado, University of Alabama School of Law, has published Two Narratives of Youth at 37 Seattle University Law Review xxxiii (Fall 2013). Here is the abstract.

In the course of a review of a colleague's book on the Beat generation of poets and novelists, I examine two narratives that society has adopted of youth -- at least certain rich and spoiled ones.

The narratives -- boys will be boys and genius is a little bit crazy -- have implications for the police, educators, and parents inasmuch as they buy wide latitude for young people like Alan Ginsburg, Jack Kerouac, and their crowd, who went to good schools, were their teachers' darlings, drank and took drugs, and committed many crimes along the way to becoming famous.

If you have a teen-age child or relative, you will perhaps enjoy my demonstration that teenagers are a social construction and do not really exist.
Download the essay from SSRN at the link. 

Law and Its Relationship To the Image

Sionaidh Douglas-Scott, University of Oxford, is publishing Law, Justice and the Pervasive Power of the Image in Journal of Law and Social Research (2014). Here is the abstract.

It is not commonplace for works of legal scholarship to use images to aid and clarify their analysis of law. Yet, law is a cultural entity, as much an art as a science. It is rooted in images as firmly as in rules.

However, law’s relationship to the image is complicated. Law may itself be interpreted as an art form, one of the liberal arts, but that is not all that it is. Law makes use of images, but is not reducible to images. Nor can art be straightforwardly compared to law. There exists no unambiguous analogy between art and law, and there are of course many points of difference between them. Peter Fitzpatrick suggests the relationship between law and culture is an uneasy one, with an ‘edgy quality’, and the same might be said of the relationship of law and image.

In this article, I argue that, while law’s own management of images must be scrutinised with care, law itself may be illuminated, enhanced or undermined by the work that images do, and our own understanding of law thus enriched, or even destabilised. To understand it through the medium of images adds a density and a complexity to our comprehension of law, and reveals tacit assumptions, incongruities and solecisms in the workings of the law. I use a selection of images and art works to make these points.
Download the article from SSRN at the link. 

Legal History and Methodology

C. G. Bateman, University of British Columbia, has published Method and Metaphysics: A Legal Historian's Canon at 23 The Journal Jurisprudence 255 (September 2014). Here is the abstract.

In the following research I discuss a number of issues which are fundamental to my understanding of how best to reconstruct past human events from the methodological outlook of a legal historian. Herein one will find an explanation of and justification for the various aspects of the historical method and philosophy I employ in my larger research area involving the Roman Emperor Constantine, the Christian Church, and state sovereignty. I also discuss some lines of intersection between modern day legal actors and historians to show how their common goal of getting to the truth of a question may encourage the former to consider using some of the same hermeneutical tools as the latter. History as a discipline has always been primarily concerned with humans and their actions, and this has been noted by many historians: Marc Bloch and R.G. Collingwood come to mind as being two of the strongest proponents of this dictum. Since the field of human events in the past is so large, I suggest it behooves us, then, not to confine ourselves too narrowly within our investigations concerning the hermeneutical tools we employ in the study of the multivariate ways that humans have acted and existed since their appearance some two-hundred thousand years ago: and to this end I employ Sub specie aeternitatis as my research’s inclusive-contextual raison d'être. This perspective requires an acknowledgment that scholarly observations about the reality of the human condition from other disciplines must be employed in the effort to be as wide-ranging in our research method gathering as the historical method will allow: and thus a number of key contributions from authors in various academic fields will be discussed to highlight the relative importance of their ideas to my own. I will be using examples within my own area of study to engage these ideas and this will better acquaint the reader with how I approach historical data. This discussion will be purposely focused on the foundational ideas upon which my own historical method is based. This will enable the reader to better appreciate how it is that I as a historian come up with suggestions about what it was in history that most likely happened. I conclude that as a historian my highest goal must be to offer an imaginative re-construction of an historical event and its concomitant personages which is based on extant data, but which also must engage in a participatory re-thinking pursuant to the motivations of the characters involved such that the end result can be read as an intelligible whole.

A Review of Brazilian Sociolegal Studies

José Reinaldo Lopes, University of Sao Paulo, Faculdade de Direito, and Roberto Freitas Filho, Uniceub, have published Law and Society in Brazil at the Crossroads: A Review at 10 Annual Review of Law and Social Science 91 (2014). Here is the abstract.

This article presents a general overview of Brazilian sociolegal studies. After presenting a short historical narrative of the field in Brazil, we argue that the early years of intense teaching of legal sociology had a politically committed approach, which gave rise to growing criticism of Brazilian legal scholarship that in turn affected the self-image of law professors. Different theoretical strands appeared in the years that followed, and some specific fields of research gained importance, particularly those concerning a sociology of the legal profession, the administration of courts, and law schools. However, we contend that as time went by, many sociolegal scholars began to neglect the critical approach to law, and today most of them fail to confront critical aspects of the gap between law on the books and law in action, especially when that gap affects lower classes or stigmatized populations.
The full text is not available from SSRN.  

November 20, 2014

Law In "The Wire"

John Denvir, University of San Francisco School of Law, has published Seeing the Big Picture: Why Law Fails in The Wire.  Here is the abstract.

Popular culture can have political impact. The Wire is not only engrossing melodrama; it also tells a compelling story of how and why the American political system fails us. Because a television series like The Wire not only appeals to a much broader audience than traditional political arguments, but also transforms abstractions into concrete images aimed at both our hearts and our minds, it can play a major role in efforts to change the world for the better.
Download the paper from SSRN at the link. 

Whither the Law Review, and Of What Use Is the Blog, If We Want To Have Fruitful Conversations About Law

Katharina Isabel Schmidt (Yale Law School) offers a comparative look at US and German law journals, blogs, and their uses in the transmission of legal ideas here in a post at the Völkerrechtsblog (English translation: Public International Law Blog). Here's an excerpt.

American law journals are interesting for the most part, if not necessarily always useful. German law journals, in turn, while useful for the most part, are not necessarily always interesting. As adumbrated above, this is due to the particular division of competences within the German legal profession on the one hand and the American legal profession on the other hand. German scholars, unlike their American counterparts, are routinely cited in court decisions. As such, they have no choice but to deliver the doctrinal goods expected of them. In the United States, unlike in Germany, placing articles in top-tier journals constitutes a necessary step on the long and winding road to tenure. As such, one can hardly blame aspiring academics for pretending to reinvent the wheel one case note at a time. In addition, trans-Atlantic divergences in the structure of legal education naturally influence the extent to which German and American jurists are able to produce and consume interdisciplinary knowledge. The – admittedly overblown – distinction between the common and the civil law tradition further contributes to making matters look positively discombobulated.
For some folks, that last sentence conveys fighting words! ;) Ms. Schmidt goes on to suggest that one way to further invigorate the intellectual tradition is to exploit the blog format.

At the same time I would argue that blogs like the present one hold the potential to facilitate conversations about law that are free from the intricate constraints of national legal science. In particular, the kind of jurisprudential writing they make possible confronts scholars and practitioners alike with ideas that lie outside the realm of their necessarily limited intellectual experience. It is in this way that blogs and other non-traditional platforms allow for a much-needed re-appreciation of what it means to be a jurist in the 21st century. Therefore, the goal of law blogs and similar projects should be an attempt to counterbalance the deficits inherent in traditional approaches to the exchange of ideas about law and the legal profession – deficits exemplified by my discussion of contemporary American and German law journal culture.

Hannah Birkenkötter (Humboldt University) responds to the notion of evolving structures of intellectual transmission in a post here. An excerpt:

In her insightful and very pertinent blog post on legal formats, Katharina Isabel Schmidt takes a comparative look at law journals and legal formats in the US and Germany, the two systems that she is familiar with. Most of her observations correspond to my experience (although I have only spent a few weeks in the US, so most of my observations are grounded in conversation with colleagues and friends as well as reading American-authored scholarship rather than first-hand experience “on the ground”) and I wholeheartedly agree that comparative looks at legal formats allow us to “re-imagine the future of legal knowledge production”. I am skeptical, however, whether non-traditional means of knowledge production, in particular blogs, truly have the “potential to facilitate conversations about law that are free from the intricate constraints of national legal science” (emphasis my own). I’ve rather found legal blogs, or blawgs, especially of the academic type, to be quite different depending on the legal culture they are rooted in. I certainly agree that blogs have the potential, and are actually used as a means to disturb existing hierarchies and conventions of scientific communication, and that on both sides of the Atlantic. But at the same time, they are not free of their respective legal traditions.
But as Ms. Birkenkötter notes, blogs do allow new identities, regardless of the tradition, to emerge, more so in the US, perhaps less so in Germany, "While not free from constraints, they provide alternative platforms and thus room for alternative topics, actors and approaches. This very conversation is, in my view, proof of it. So let’s continue the talk."

I fully agree. I would point out that, in addition to blogs, other formats have emerged, including online law review journals, such as Stanford Law Review Online.  The Library of Congress has a listing of journals available online, although not all journals listed are exclusively "online" journals; some are print journals with an online presence and/or online "exclusives." Such an online approach allows frequent updating and permits a publication to address "up to the minute" topics and breaking news. It allows academics to "be relevant." It lets us use the more effective and efficient features of the web, including the ability to be interactive and to respond to critiques quickly, so that we really can engage in conversation on a frequent basis, rather than wait until those pleasant but increasingly expensive conferences roll around. Maybe we'll now get more out of them.

November 18, 2014

A New Issue of "Law and Humanities" (Hart Publishing) Is Available

Volume 8, issue 2 (2014) of Law and Humanities has been published. The Table of Contents is available here at the publisher's website. The issue includes a number of interesting articles such as Andra le Roux-Kemp's Struggle Music: South African Politics in Song and Maria Mendes' Hamlet's Ordeals.

A Website For New Book Reviews From Rutgers School of Law-Newark and Rutgers School of Criminal Justice

The Rutgers School of Law-Newark and Rutgers School of Criminal Justice regularly review new books in the fields of criminal law, criminal procedure, and criminal justice at the website Criminal Law and Criminal Justice Books. You can sign up to be notified when the site publishes new alerts, or just visit often to scan for interesting reviews in your area of interest.

Legal Reasoning, Rules, and Narrative

Stephen Paskey, State University of New York, Buffalo, Law School, is publishing The Law is Made of Stories: Erasing the False Dichotomy between Stories and Legal Rules in volume 11 of Legal Comm. & Rhetoric: JALWD (Fall 2014). Here is the abstract.

When lawyers think of legal analysis, they think chiefly of logic and reason. Stories are secondary. As Michael Smith explains, our legal system “is not founded on narrative reasoning” but on “a commitment to the rule of law.” The article suggests that this dichotomy between “rule-based reasoning” and “narrative reasoning” is false, and that narrative and stories are central to legal reasoning, including rule-based reasoning. In doing so, the article uses literary narrative theory to show that every governing legal rule has the structure of a “stock story”: the elements of the rule correspond to elements of a story. It follows that lawyers do not rely on stories simply because they are persuasive. They do so because a story is literally embedded in the structure of governing rules, and those rules can be satisfied only by telling a story. Thus, many analytical moves we label “rule-based reasoning” can be understood as a type of narrative reasoning, in which a client’s story is compared to and contrasted with the stock story embedded in the rule.
Download the article from SSRN at the link. 

Jefferson's Constitution

Gerald Leonard, Boston University School of Law, is publishing Jefferson's Constitutions in Constitutions and the Classics: Patterns of Constitutional Thought from John Fortescue to Jeremy Bentham (D. J. Galligan, ed., Oxford University Press, 2014). Here is the abstract.

Between 1787 and 1840, the Constitution gained a far more democratic meaning than it had had at the Founding, and Thomas Jefferson was a key figure in the process of democratization. But, while more democratic in inclination than many of the Framers, he fell far short of the radically democratic constitutionalism of his most important acolytes, Martin Van Buren and Andrew Jackson. This chapter of Constitutions and the Classics explains that Jefferson was actually much less attached to democracy and more to law as the heart of the republican Constitution. Compared to the 1830s founders of the nation’s democratic Constitution, Jefferson retained much of the elitist, law-oriented, antiparty, slavery-protective (though not pro-slavery) convictions of most of the Framers. He broke somewhat from most of the Framers, however, in taking a radical states’-rights view of the Constitution akin to that of the opponents of the Constitution. In practice, his constitutional politics as Republican leader in the 1790s and president in the 1800s built an important bridge to the democratic Constitution of his successors, even if he never fully embraced that development. And his firm defense of states’ rights, especially in connection with slavery, undermined his occasional endorsement of a very limited antislavery authority in the federal government. The ascendancy of the Jacksonian Democratic party would entrench essentially Jeffersonian constitutional principles of states’ rights and slavery protection but would substitute democratic will for reason and law at the foundation of the Constitution.
Download the essay from SSRN at the link. 

November 12, 2014

Tilburg University Creates Fellowship Opportunity In Memory of Professor Willem Witteveen

Tilburg University announces a new Law &; Humanities fellowship opportunity at Tilburg University in the Netherlands. The fellowship was created in honor of Prof. Willem Witteveen, who was a long standing professor in jurisprudence as well as a senator for the Labour Party in the Netherlands. Along with his wife and daughter, Willem was killed in the MH17 flight this past summer. To honour his contribution to Law & the Humanities, the Tilburg Law School created this fellowship for junior researchers.

Tilburg University
Witteveen Memorial Fellowship on Law and Humanities

Professor Willem Witteveen was an early representative of the interdisciplinary and contextual approach to legal scholarship in The Netherlands and Tilburg Law School. Whereas the emphasis often is on social sciences, Willem's focus was on law and humanities. Rhetoric, literature, political philosophy and (intellectual and cultural) history in particular were breeding grounds for Willem's many contributions to academia, politics and society. Willem attached a lot of importance to student formation in the sense of the classic Bildungsideal to which expression (rhetoric, language) and contact with classical texts are central. As progressive as much of his work is, as strong was his attachment to traditional forms of academic life, with their opportunities for direct exchange of ideas.

DESCRIPTION: Tilburg University is establishing the annual Witteveen Memorial Fellowship on Law and Humanities in order to commemorate the life and work of Willem Witteveen. The fellowship aims to enable a junior scholar (PhD or postdoc level) to further develop his or her research in the area of 'Law and Humanities' during a visit to Tilburg.

WHAT THE WITTEVEEN MEMORIAL FELLOWSHIP ON LAW AND HUMANITIES OFFERS: The Witteveen Memorial Fellow will have office space and facilities at the Department of Public Law, Jurisprudence and Legal History of Tilburg Law School, as well as full library access.

FUNDING: We offer reimbursement of travel expenses (max. 750 euro) and accommodation expenses (max. 1500 euro per month) in case the fellow is based outside of The Netherlands. In case the fellow is based at a Dutch university we offer a replacement subsidy of up to 1500 euro per month to their employer to compensate for the loss of teaching hours of the researcher as well as reimbursement of commuting costs (max. 250 euro per month). The Witteveen Memorial Fellowship does not constitute an employment relationship. For this reason, Tilburg Law School will not make social insurance contributions or contributions to pension or unemployment insurance.

In principle the Witteveen Memorial Fellowship on Law and Humanities is for a duration of three months in the Spring following the application deadline. Candidates are welcome to propose a different period. In case the fellowship is awarded for less than three month the maximum amount to be reimbursed for accommodation (scholars based outside of The Netherlands) or teaching buy-out and commuting costs (for scholars based at a Dutch university) will be proportionately lower. If the fellowship is awarded for longer than three months, the total amount to be reimbursed, travel or commuting costs included, remains 5250 euro.

WHAT IS EXPECTED OF THE WITTEVEEN MEMORIAL FELLOW: During the period of the fellowship the scholar will be present in Tilburg, participate in the academic life of both Tilburg Law School and the Tilburg School of Humanities and deliver a guest lecture to students. Any publications resulting from the fellowship should mention the Witteveen Memorial Fellowship on Law and Humanities explicitly.

APPLICATION PROCEDURE: Scholars who are currently working on a PhD dissertation or who defended one not longer than five years ago are eligible. Candidates are requested to submit their application before 20 January 2015. Applications can only be submitted online ( Candidates must submit a cover letter, a CV including publications, a statement of intent ('what do you plan to do during the fellowship?', 'what is the end product?') and one reference letter.

In principle, the selection committee will decide on the basis of the written application only.

FURTHER INFORMATION: For questions, please contact Sabine Gabriel (

Law-Inspired Haiku From Some Future Law and Poetry Scholars at Emory School of Law

As a followup to a post about Supreme Court Haiku and the current ABA-sponsored Supreme Court Haiku Contest for Law Students (open until November 15), I've invited Professor Julie Seaman of the Emory School of Law to present a selection of the haiku created by some of her constitutional law, evidence, and free speech students. I think they're a clever and talented group, and their poems have pith. I like pith.

A few weeks ago, and seemingly out of the blue, legal haikus were suddenly everywhere.  A former student slipped a flyer under my door announcing a Supreme Court haiku contest for law students, sponsored by the American Bar Association.  A sticky note attached to the flyer said, “I thought you’d like to share this with your classes!  Apparently the ABA shares your love of legal haiku.”  A few days later, someone on the conlawprofs listserv shared a link to the Supreme Court Haiku website (, a remarkably clever and delightful collection of which I’d thus far been unaware. 

Why did my student give me the flyer?  Because last semester, after trying my hand at legal haikus on a Facebook dare, I announced to my con law class that they could win free passes for writing haikus about the reading assignments.  Before each class, I would choose my favorite submission and post it on the powerpoint slides for the class; its author would be entitled to an extra free pass to be used as he or she wished during the semester.

The contest was a big hit with the students.  Some students were quite prolific.  Many of the haikus were funny and creative.  I continued the call for haikus this fall in evidence and free speech.  Several students have told me that boiling the cases or rules down to seventeen syllables helps them learn the material – imagine: actual pedagogical value!  But even if the exercise is pedagogically irrelevant, it sure is fun to read the submissions.  Here are some highlights: 

DeShaney v. Winnebago County Dept. of Social Services

Oh poor little Josh
State said they would care for him
No prison no help

Colin Peterson

Buck v. Bell

Can Carrie have kids?
She encumbers the state's funds!
She had due process.

Josh Karr

Troxel v. Granville

Child can’t see grandma
Mom has the right to deny
the visitation

Zoya Kovalenko

Cruzan v. Director, MO Dept of Health

Nancy is brain-dead
Her parents grieve, with no choice
But to watch her lie

Ashleigh McClure
NYC Transit Auth. v. Beazer

On that methadone
TA says I can’t work here
Upheld . . . unemployed

Stephanie Grossinger

Railway Express Agcy v. New York

It is a health risk,
To have car advertisements.
Deal with it, locals!

Rebecca Sussman

Korematsu v. United States

Refusing Orders?
Not So Fast, Korematsu.
Jail Time for You, Sir.

Caroline Geiser
Tiers of scrutiny

defers, but not for suspect

Jordan Kragten
Craig v. Boren

So now my girlfriend
Can’t buy us three-two’s either?
Equality bites.

Mike McClain

United States v. Virginia

Stonewall is glaring
Shenandoah is playing
RAH Virginia Mil!

Rebecca Sussman

Skinner v. Oklahoma

Embezzlement: theft,
very similar but one
sterilizes you.

Alison Murphy

Moral turpitude
Cannot deprive criminals
Of life’s greatest gift

Meg McNulty

Watts v. US

Watts threatened the Chief,
But such clear hyperbole
Is protected speech.

Rebecca Hall

New York v. Ferber

If porn depicts kids,
value is de minimus.
The statute survives.

Joe Bearden

Trial of Sir Walter Raleigh

Raleigh’s ghost lingers . . .
“What matter how the head lie,
So the heart be right?”

Rebecca Sussman

Rule 804(a)

Forgetful? Stubborn?
Sick? Privileged? Dead? Then you are...

Graham Burkhalter
Admissions Doctrine

Wait! Statements I make
are not considered hearsay?
I’m done talking now.

Josh Karr

I will sit silent
If asked if I read today
Tacit Admission

Brad Verona
Frye Test

Frye test rests on
these Elitists assumptions. 
Jurors can be smart!
Rebecca Sussman

The creativity bled over into other student communications.  One day the air conditioning was not working in the classroom.  After class, this message (from student Chris Roth) was in my inbox:

It is so damn warm
Please turn on the A/C now
Because it is hot

Another day I received this in an email before class (from student Ned Dutton):

I’m leaving early,
But please don’t be offended.
It’s an interview.

One day I canceled a reading assignment and received this (from student Rebecca Sussman, whom I must say has discovered a genuine gift for haiku):

A sigh of relief, 
Gonna ignore that reading.
Hello, sweet Netflix!

Ms. Sussman also apologized for an absence this way:

The class glared at me!
Rude, loud coughing wouldn't end!
I hate bronchitis.

Leading up to the review session, student Caroline Geiser sent this:

7 more classes
and then we have exams?!? Shit. 
Jesus take the wheel.

And finally, on the final (from student Jordan Kragten):

law was tough, but Professor
Seaman was great.  Thanks!