Law, Reason, and Emotion

Mortimer Newlin Stead Seller, University of Baltimore School of Law, has published Law, Reason, and Emotion. Here is the abstract.

Law, reason, and emotion have a long, close, and complicated relationship in the history of philosophy and justice. This discussion suggests that that law gains legitimacy and effectiveness when it marries reason with emotion, that reason and human emotion are the guiding values of any just legal system, that all legal systems claim to be just, and that all legal systems and all legal scholars make use of these insights whether they acknowledge them or not. The project here in the first instance is one of definition: "law", "reason", "emotion", "justice", "effectiveness", and "the rule of law" all require specification to better understand how they relate to one another and set the agenda for further conversation. The first step is to consider how these words have been and should be used for the better understanding and eventual improvement of law and society. Reason and emotion are the twin pillars of the law, which make the law legitimate, just, and effective when they are properly taken into account and otherwise not. No one can properly understand law without reference both to human emotion and to the purpose law properly exists to serve, which is the rational well-being of each and every member of society.

Download the paper from SSRN at the link. 

The US Supreme Court and Institutional Legitimacy

James L. Gibson, Washington University in St. Louis, Department of Political Science, Milton Lodge, Stony Brook University, Department of Political Science, and Ben Woodson, Stony Brook University, Department of Political Science, have published Legitimacy, Losing, But Accepting: A Test of Positivity Theory and the Effects of Judicial Symbols. Here is the abstract.

How is it that the U.S. Supreme Court is capable of getting most citizens to accept rulings with which they disagree? This analysis addresses the role of the symbols of judicial authority and legitimacy – the robe, the gavel, the cathedral-like court building – in contributing to this willingness of ordinary people to acquiesce to disagreeable court decisions. Using an experimental design and a nationally representative sample, we show that exposure to judicial symbols (1) strengthens the link between institutional support and acquiescence among those with relatively low prior awareness of the Supreme Court; (2) has differing effects depending upon levels of pre-existing institutional support; and (3) severs the link between disappointment with a disagreeable Court decision and willingness to challenge the ruling. Since symbols influence citizens in ways that reinforce the legitimacy of courts, the connection between institutional attitudes and acquiescence posited by Legitimacy Theory is both supported and explained.

Download the paper from SSRN at the link. 

The Media and Reports of Crime, 1960-2009

Moira Peelo, Lancaster University, and Keith Soothill, Lancaster University, have published ‘Marginal’ Crime: The Example of Blackmail in Representing Evolving Crime Narratives at 53 Howard Journal of Criminal Justice 221 (2014). Here is the abstract.

Newspaper representation of blackmail cases from over half a century (1960–2009) is used to illustrate ‘marginal’ crime reporting in an era of social change: we asked how such crimes fare in attracting public attention and what meanings they represent during a period of politicised, public and criminological narratives of crime and disorder. ‘Marginal’ crimes sit at the edges of crime narratives and at the boundaries of criminology, yet the example of blackmail indicates wider social concerns. A macro analysis of 252 cases showed a steady public profile with six major categories of blackmail reported. At a micro level, only 33 cases achieved sustained reporting, deriving meaning from current social anxiety; acted normatively – defining current group values; or were one of a palette of charges brought against individuals.

The full text is not available from SSRN. 

Shakespeare As Therapist?

Herschel Prins, Loughborough University & University of Birmingham, has published Mental Disorder, Criminality and the Literary Imagination at 53 Howard Journal of Criminal Justice 290 (2014).

This contribution attempts to explore the use of a variety of literary sources as aids or ‘prompts’ to understanding those offenders and offender‐patients whose mental states often raise considerable anxieties in those charged with their management. The word ‘prompt’ is borrowed from the work of my friend, the late doctor Murray Cox, and his co‐worker Alice Theilgaard in their seminal work Shakespeare as Prompter (1994). The author of the present article hopes that its content will enable readers to focus more clearly on why we sometimes fail our offenders and offender‐patients; in particular, through the mechanism of denial. The use of dramatic presentation when proffered with a unique blend of force and sensitivity can permit us to view puzzlement and horror from a safe distance and, at the same time, encourage us to increase our empathic understanding and professional practice. Most of the examples cited are brief allusions but, because her history is so compellingly applicable to our concerns in the present contribution, the ‘case’ of Lady Macbeth is considered in more detail. Finally, I would note some very wise words by Cox and Theilgaard (1994) in a caveat note to the reader: ‘Should the focus on therapy ever become occluded by preoccupation with poetic association, clinical skills would be diminished, distraction ensue and therapeutic contact deteriorate’ (not numbered). In the material that follows readers should bear such a cautionary note in mind.

The full text is not available from SSRN. 

The Supreme Court's Christmas Party Guest List: 1947 and 1959

Ross E. Davies, George Mason University School of Law; The Green Bag, has published A Christmas Gift for the Supreme Court: How a 1959 Holiday Party Eclipsed a History of Discrimination at 17 Green Bag 2d 311 (Spring 2014).

On December 28, 1959, the New York Times published a little news item that was, in hindsight, both (1) a public relations triumph for Banning E. “Bert” Whittington, the U.S. Supreme Court’s Press Officer at the time, and (2) a jurisprudential and institutional relief for the Court. COURT DEFIES PRECEDENT: “One of the last institutions holding out against the Christmas Party succumbed last week. The Supreme Court had a pleasant but sober affair arranged by its press officer, Banning E. Whittington. Five of the Justices – Hugo L. Black, Felix Frankfurter, William O. Douglas, William J. Brennan Jr. and Potter Stewart – joined the small staff of employes. There were fruit punch, cookies and carols by a high school group, with some audience singing, too.” The story has a tone that should ring familiar in the ears of modern consumers of Supreme Court news reporting: good-natured indulgence of that somewhat dull, somewhat behind the times, somewhat culturally clueless wallflower among our great institutions of national government. But the background to that story suggests that the Court was not at all clueless in 1959. Indeed, the Court’s handling of that Christmas party, and the Times coverage of it, may have helped the Court occupy the high ground during its continuing campaign in the 1960s against racial discrimination.

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

A very interesting sidelight on the Court during a turbulent decade. 

Trying the New Deal

Ahmed White, University of Colorado Law School, has published The Wagner Act on Trial: The 1937 'Little Steel' Strike and the Limits of New Deal Reform. Here is the abstract.

The National Labor Relations Act of 1935, or Wagner Act, played a crucial role in shaping the New Deal and eventually transforming the economic, political, and legal foundations of modern America. Although many aspects of the statute’s history, including its relationship to the rise of industrial unionism and the epic struggle to secure its constitutionality, have been well told by historians and legal scholars, key elements of its story remain obscured by misconceptions, oversight, and outright myth. Not least among these areas of uncertainty is how the new law actually functioned in the months and years immediately after the Supreme Court upheld its constitutionality, and what its fate in this crucial time says about the nature of the New Deal itself. This article undertakes to shed light on these questions by unfolding the history of one of the most important events in the Second New Deal period: the “Little Steel” Strike of 1937. Drawing on a host of sources, including five major archival collections, this article tells the story of this dramatic and violent episode, including its legal history. Presenting the strike as a key test of the Wagner Act and a critical bellwether of the New Deal, the article documents not only the virtues of new regime in labor rights just as it emerged from the shadow of unconstitutionality, but also congenital shortcomings in the labor law that have undermined workers’ rights ever since. In a further challenge to conventional narratives of the period, the story of the strike exposes the remarkable degree to which the power of the business community survived, relatively undiminished, the Wagner Act and the political changes that accompanied it. Moreover, giving credence to a broader literature on New Deal law and policy, the article presents the strike and litigation surrounding it as proof of the continuing weakness of the New Deal and as key moments in the conservative turn that marked course of reform in the late 1930s.

Download the paper from SSRN at the link.

Natural Born Citizens and the U.S. Constitution

Mary Brigid McManamon, Widener University School of Law, is publishing The Natural Born Citizen Clause as Originally Understood in the Catholic University Law Review. Here is the abstract.

Article II of the Constitution requires that the President be a “natural born Citizen.” The phrase is derived from English common law, and the Supreme Court requires examination of that law to ascertain the phrase’s definition. This piece presents the pertinent English sources, combined with statements by early American jurists. Based on a reading of these materials, the article concludes that, in the eyes of the Framers, a presidential candidate must be born within the United States. The article is important because there have been candidates that “pushed the envelope” on this question in many elections over the last 50 years, and no article in the last century has correctly explained the common law definition. This article is timely because there will again be such a candidate in 2016 if Sen. Ted Cruz decides to run.

Download the full text from SSRN at the link. 

Law at the US Supreme Court

Jessica Silbey, Suffolk University Law School, and Megan Slack, Slack Law Firm, are publishing The Semiotics of Film in US Supreme Court Cases   in  Law, Culture and Visual Studies (Springer 2014). Here is the abstract.

This chapter explores the treatment of film as a cultural object among varied legal subject matter in US Supreme Court jurisprudence. Film is significant as an object or industry well beyond its incarnation as popular media. Its role in law – even the highest level of US appellate law – is similarly varied and goes well beyond the subject of a copyright case (as a moving picture) or as an evidentiary proffer (as a video of a criminal confession). This chapter traces the discussion of film in US Supreme Court cases in order to map the wide-ranging and diverse ­relations of film to law – a semiotics of film in the high court’s jurisprudence – to decouple the notion of film with entertainment or visual truth.

This chapter discerns the many ways in which the court perceives the role of film in legal disputes and social life. It also illuminates how the court imagines and reconstitutes through its decisions the evolving forms and significances of film and film spectatorship as an interactive public for film in society. As such, this project contributes to the work on the legal construction of social life, exploring how court cases constitute social reality through their legal discourse. It also speaks to film enthusiasts and critics who understand that film is much more than entertainment and is, in practice, a conduit of information and a mechanism for lived experience. Enmeshed in the fabric of society, film is political, commercial, expressive, violent, technologically sophisticated, economically valuable, uniquely persuasive, and, as these cases demonstrate, constantly evolving.

Download the essay from SSRN at the link. 

Antigone and Human Rights

Kevin P. Lee, Campbell University Law School, has published Emanuel Levinas on Hegel's Antigone: Levinas and the Problem of Modernity. Here is the abstract.

This essay introduces Emmanuel Levinas’s contribution to post-secular human rights discourse. It looks first to Levinas’s reading of Sophocles’ tragedy, Antigone, for an introduction to his thinking about the relationship between the human law and divine law. For his approach to “post-secularity” it compares Levinas to Jürgen Habermas’s critique of the “discourse on modernity” with particular concern for several issues of importance to human rights discourse. Levinas develops a “post-ontological” conception of religion as a part of his account of subjectivity. It suggests that, while flawed in many respects, Levinas’s work illustrates some of the complex issues facing those who seek to articulate a post secular theory of human rights.

Download the paper from SSRN at the link. 

Legal Rules and Narrative Reasoning

Stephen Paskey, State University of New York (SUNY) 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 Communication and Rhetoric (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. 

Harry Potter à la mode

A new book on law and Harry Potter, this one in French:

Jean-Claude Milner, Harry Potter: A l’école des sciences morales et politiques (PUF, 2014) (the date of publication is listed as July 2014).

Here's the table of contents: Introduction

1 – Le Roman d’éducation

2 – Les leçons de la tante Marge

3 – La leçon d’Eton

4 – La leçon des humanistes

5 – La leçon de Voldemort

6 – La leçon des sorciers

7 – La leçon des moldus et le secret de Dumbledore

Conclusion

A tip of the sorting hat to José Calvo Gonzalez, University of Malaga

A New Book On Legal Translation

Newly published:

The Ashgate Handbook of Legal Translation (Le Cheng, Ing Kui Sin, Anne Wagner, eds.; Ashgate, 2014) (Law, Language, and Communication). Here is a description of the contents from the publisher's website.

• This volume investigates advances in the field of legal translation both from a theoretical and practical perspective, with professional and academic insights from leading experts in the field. Part I of the collection focuses on the exploration of legal translatability from a theoretical angle. Covering fundamental issues such as equivalence in legal translation, approaches to legal translation and the interaction between judicial interpretation and legal translation, the authors offer contributions from philosophical, rhetorical, terminological and lexicographical perspectives. Part II focuses on the analysis of legal translation from a practical perspective among different jurisdictions such as China, the EU and Japan, offering multiple and pluralistic viewpoints.
  This book presents a collection of studies in legal translation which not only provide the latest international research findings among academics and practitioners, but also furnish us with a new approach to, and new insights into, the phenomena and nature of legal translation and legal transfer.
  The collection provides an invaluable reference for researchers, practitioners, academics and students specialising in law and legal translation, philosophy, sociology, linguistics and semiotics.
• Contents: Foreword: new challenges for legal translation, Heikki Eero Sakari Mattila; Legal translatability process as the ‘third space’: insights into theory and practice, Anne Wagner, King-Kui Sin and Le Cheng. Part I Legal Translation in Theory: Translation vs. decoding strategies in law and economics scholarship, Mariusz Jerzy Golecki; Cultural transfer and conceptualisation in legal discourse, Anne Wagner, King-Kui Sin and Le Cheng; Lost in translation? Linguistic diversity and the elusive quest for plain meaning in the law, Janet Ainsworth; Translation equivalence as a legal fiction, Janny H.C. Leung; Trying to see the wood despite the trees: a plain approach to legal translation, Víctor González-Ruiz; Minimal unit of legal translation vs. minimal unit of thought, Svetlana V. Vlasenko; Parameters for problem-solving in legal translation: implications for legal lexicography and institutional terminology management, Fernando Prieto Ramos; Structuring a legal translation course: a framework for decision-making in legal translator training, Catherine Way. Part II Legal Translation in Practice: EU legislative texts and translation, Colin Robertson; Phraseology in legal translation: a corpus-based analysis of textual mapping in EU law, Łucja Biel; Translating international arbitration norms into the Italian language and culture, Maurizio Gotti; Translating domestic legislation: a comparative analysis of English versions of Brazilian law on arbitration, Celina Frade; Translation of Japanese laws and regulations, Kayoko Takeda and Yasuhiro Sekine; Important translation strategies used in legal translation: examples of Hooper’s translation of the Ottoman Majalla into English, Rafat Y. Alwazna; On the translation of the criminal procedure law of the PRC, Lijin Sha and Jian Li; The new Czech civil code - lessons from legal translation: a case-study analysis, Marta Chromá; Multilevel translation analysis of a key legal concept: persona juris and legal pluralism, Sandy Lamalle. Afterword: the trials and tribulations of legal translation, Deborah Cao; Index.

Organizing the Doctrines of International Law

Matthias Goldmann, Max Planck Institute for Comparative Public Law and International Law, has published Principles in International Law as Rational Reconstructions. A Taxonomy. Here is the abstract.

The paper suggests that principles as an important part of legal doctrine should be understood as the result of the rational reconstruction of legal discourse in the sense of Jürgen Habermas’ method bearing the same name (A.). It first argues that principles are best understood as abstract legal rules, not as normative presuppositions that are categorically different from rules (B.). As principles in international law just as in domestic legal orders are important parts of doctrine, the papers inquires into the self-understanding of doctrine, i.e. of the method used for the formation of principles (C.I.). Doctrine as the production of conceptual abstractions from the positive law has faced a number of methodological challenges over the last two centuries (C.II.). The method of rational reconstruction provides a methodologically tenable explanation. Envisaged by Jürgen Habermas as an explanation for the practice of communication and later applied to the practice of political discourse, this method allows understanding legal principles as the normative presuppositions of the participants in legal discourse (C.III.). Depending on which part of legal discourse one attempts to reconstruct, a taxonomy of principles in international law emerges, ranging from hard-law general principles of law to structural principles with merely heuristic functions (D.). The rational reconstruction of principles in international law thus helps to carve out the dividing line between law and politics and bears relevance for current scholarly endeavors (E.).

Download the paper from SSRN at the link. 

Law and Yoga

Michal Tamir, Shaarei Mishpat College of Law is publishing Law and Yoga in the Journal of Law and Social Deviance. Here is the abstract.

“Law and yoga” is a phrase that is rarely heard anywhere, much less in courtrooms or in yoga studios. This oxymoronic pairing represents two entities and two separate worlds, without an obvious connection. The practice of law involves constant judgment of others, while the yoga tradition aims to avoid judgment; yoga consecrates silence, while law revolves around discourse; yoga focuses in the most extreme way on the given moment, whereas law looks to the past and the future, particularly with regard to precedents; yoga deals with the whole and the one, whereas law dissects every issue into minutiae and subparts. Despite these dichotomies, yoga, as an in-depth, comprehensive approach to life, can be a model by which to re-examine behavior in the world of law, thereby contributing tools and values that can be useful for resolving legal crises and social conflicts.

Yoga philosophy stresses that cutting oneself off from thinking through silence enables exploration and seeking, which, in turn, leads to finding our inner truth. The process of seeking inner truth can lead to the discovery of the external truth, the Dharma, which embodies both the desirable and the available. This insight can be applied to a legal framework in order to help bridge the gap between justice and law and reconcile factual truth and legal truth. The article recognizes that law and justice are not one and the same, and that various legal rules and doctrines, to do with proof, evidence, precedent, and other variables, sometimes prevent factual truth from translating into legal truth and decisions. Nonetheless, diminishing this gap - i.e., turning the desirable into the actual - can be more easily achieved through the application of yoga principles to the practice of law, thereby achieving what those in the legal profession aspire to.

Download the article from SSRN at the link. 

The Aesthetics of Contract Law

Kenneth K. Ching, Regent University School of Law, has published Beauty and Ugliness in Offer and Acceptance. Here is the abstract.

This essay applies classical aesthetics to the contract doctrine of offer and acceptance. It argues that contract law can be understood, analyzed, and improved using three criteria of beauty: proportion, integrity, and clarity. Based on these criteria, this essay (1) argues that the traditional doctrine of offer and acceptance is beautiful, (2) argues that UCC §2-207 is ugly and fails to improve upon offer and acceptance, and (3) suggests improvements for UCC §2-207.

Download the essay from SSRN at the link. 

Patriarchial Government and Aboriginal Peoples In Australian Law and Culture

Honni Van Rijswijk, University of Technology Sydney, Faculty of Law, is publishing Archiving the Northern Territory Intervention in Law, and in the Literary Counter-Imaginary in volume 40 of the Australian Feminist Law Journal (2014). Here is the abstract.

This article focuses on a figure archived in contemporary Australian law, a figure who is central to the state’s control of Aboriginal people. This figure, like her counterparts in earlier historical periods, is to be found in legislation and in case law, and in law’s supplementary genres, including welfare and indigenous policy, and Parliamentary second-reading speeches. This figure is the ‘abused Aboriginal child’, and she has been significant to the production of myths of the Australian nation-state, and to the rule of law. She is being used to justify the continued administration of Aboriginal communities, through simultaneously both the continuing suspension of the rule of law, and the violent instrumentalisation of law. This article examines the archive of the Northern Territory Intervention and subsequent Stronger Futures legislation, investigating the ways in which law’s violence masquerades as law’s care. I seek to explore the ways in which reading law as an archive opens up the possibility of a counter-archival practice that interrupts and disorients law’s claim to violent jurisdiction over Aboriginal people. The emphasis here is on reading law as archive — on taking up a position of readerly responsibility with respect to the practices of representation that constitute law’s archive, and on constructing counter-archival practices and imaginaries that resist and re-situate law’s authority. By way of example, I examine Alexis Wright’s most recent novel, The Swan Book (2013), which is read as an exemplary counter-archival text that interrupts law’s archival practices and claims.

Download the article from SSRN at the link. 

Law Among Friends

Alecia Simmonds, University of Technology Sydney, Faculty of Law, has published Trading Sentiments: Friendship and Commerce in John Turnbull's Voyages (1800-1813) in volume 48 of the Journal of Pacific History (2014). Here is the abstract.

This paper explores the relationship between commerce, cross-cultural friendship and empire in the published Voyages of Pacific salt pork trader John Turnbull. Turnbull published two versions of his Voyages, the first in 1805 and the second in 1813. Through exposing the variations between the two versions of his Voyages and analysing the reception of each text in the burgeoning periodical literature at the time, I explore how his commercially oriented critiques of cross-cultural friendship transformed into unbridled enthusiasm in the second reprint. I explain this shift as both a consequence of a shift in genre, from commercial voyaging to scientific voyaging, and as a reflection of two competing ideas of the relationship between friendship and commerce. The first version reflects a Smithian ideal, where friendship is excluded from commerce, while the second version shows a natural law conception of friendship as commercial imperialism in its ideal, and morally virtuous, form. 

Download the article from SSRN at the link. 

Paul Robeson As Human Rights Advocate

Penelope Andrews, Albany Law School, has published A Champion for African Freedom: Paul Robeson and the Struggle Against Apartheid in volume 77 of the Albany Law Review (2014). Here is the abstract.

On February 28, 2013, I was honored to deliver the Paul Robeson lecture at Columbia Law School, an annual event to commemorate the life and legacy of Paul Robeson, a graduate of Columbia Law School (Class of 1923). This article is a slightly expanded version of my lecture.
This article will have four components: first, it will highlight the achievements of this extraordinary man, an advocate for social justice, a world-renowned artist, and an accomplished sportsman. Second, in this article I explore Paul Robeson’s connections and commitment to the African anti-colonial struggle, and in particular the struggle against apartheid in South Africa. Third, this article examines the legal developments in South Africa with the collapse of formal apartheid, and outlines the broad contours of the constitutional text, particularly the bill of rights and the constitutional and human rights jurisprudence of the Constitutional Court. Finally, the article will end with the question: what would Paul Robeson say about the contemporary moment that post-apartheid South Africa finds itself in?

Download the article from SSRN at the link. 

New Legal Drama Premieres On June 29

The new CBS legal drama, Reckless, premieres June 29th at 9 p.m., 8 Central time. Watch a promo here. The series is based on a British show of the same name which aired on ITV in 1997; it is set in Charleston, South Carolina. Note that the British series featured health professionals, not lawyers (It starred Robson Green, who went on to star in the legal drama Trust). Anna Wood stars as Northern attorney Jamie Sawyer who moves to the city and immediately finds an adversary (and love interest) in local lawyer Roy Rayder (Cam Gigandet).

More here.