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!

Sex, Theology, and Marriage in Protestant Thought

John Witte, Jr., Emory University School of Law, is publishing Sex and Marriage in the Protestant Tradition: 1500-1900 in the Oxford Handbook on Theology, Sexuality, and Gender (Adrian Thatcher, ed.; Oxford University Press, 2014). Here is the abstract.

This Article analyzes the mainline Lutheran, Calvinist, and Anglican models of sex, marriage, and family and their gradual liberalization by Enlightenment liberalism. The theological differences between these models can be traced to their grounding in Lutheran two kingdoms doctrines, Calvinist covenantal theology, Anglican commonwealth theory, and Enlightenment contractarian logic. Lutherans consigned primary marital jurisdiction to the territorial prince or urban council. Calvinists assigned interlocking marital roles to local consistories and city councils. Anglicans left marital jurisdiction to church courts, subject to state oversight and legislation. The early Enlightenment philosophers, many of them Protestants, pressed for a sharper separation of church and state in the governance of marriage, and for stronger protections of the rights and equality of women and children within and beyond the marital household. But they maintained traditional Protestant prohibitions extramarital sex and no-fault divorce in an effort to protect especially women and children from exploitation.
Download the essay from SSRN at the link. 

Looking at Law and Language Scholarship

Elizabeth Mertz, University of Wisconsin, Madison; American Bar Foundation; and Jothie Rajah, American Bar Foundation, have published Language-and-Law Scholarship: An Interdisciplinary Conversation and a Post-9/11 Example at 10 Annual Review of Law and Social Science 169 (2014). Here is the abstract.

Language-and-law research is now an established field for study, with decades of development behind it. And yet the field remains fragmented, with disparate streams of scholarship that, ironically, tend to speak in different languages: linguistic anthropology, discourse studies, semiotics, literary theory and rhetoric, translation studies, sociolinguistics, legal philosophy, and more. On one hand, this broad variety speaks to the robust character of language-and-law studies as a focus for relatively diverse scholarly endeavors. And for a number of reasons, it seems likely that the separate schools of thought in this area will generally continue to pursue their often distinct paths. On the other hand, as this article argues, a careful reading of work in the area reveals the potential for a productive conversation among some very different perspectives. Such a conversation offers the promise of creating exciting bridges among law, the social sciences, and the humanities. It also draws together interest in a variety of kinds of language: spoken, gestural, written, visual. This kind of bridge, we suggest, is one of the gifts of the truly interdisciplinary space opened up by sociolegal research — it permits us to combine quite diverse kinds of knowledge in our quest to more fully understand closely related legal phenomena. In this article, we also combine two different kinds of disciplinary voices, inviting the reader to assess what insights about law arise from these voices separately and, perhaps, together.

The full text is not available for download from SSRN.

Images of the Mexican In Law and Narrative

Deborah M. Weissman, University of North Carolina, School of Law, is publishing The Politics of Narrative: Law and the Representation of Mexican Criminality in the Fordham International Law Journal. Here is the abstract.

Popular narratives often develop in tandem with and within the law and legal discourse. They are both cause and consequence of public mood. This Article addresses the emergence of widely held perceptions of the “Mexican-as-criminal” and Mexico as crime-ridden violence society. It analyzes the narrative as it bears on public policy, national interest, and the formulation of law.
The Article examines the discursive framework of the Mexican-as-criminal at the transnational, national, and local level. It considers how the political use of such constructs act to shape immigration policies through the construction of law that is, in turn, constitutive of the narrative. It then explores alternative uses of the discourse often by well-meaning advocates who avail themselves of the perception of Mexico as a nation of drug violence as the rational for asylum claims. Finally, the Article appraises shifting paradigms: from Mexican-as-criminal (bad neighbor) to Mexican-as-economic (good neighbor) and considers whether this divergence promotes legal policies that serve to foster social inclusion.

The Article concludes by suggesting the need to re-examine the narratives in order to determine who benefits and who is harmed, and ultimately whether the narrative produces a usable framework to understand and resolve the political economic structures that produce violence in Mexico and improve the status of Mexicans in the United States.
Download the article from SSRN at the link. 

November 10, 2014

Parliamentary Habeas Proceedings in the Reign of James I

Donald E. Wilkes, Jr., University of Georgia Law School, has published Habeas Corpus Proceedings in the High Court of Parliament in the Reign of James I, 1603-1625 at 54 Am. J. Legal Hist. 200 (2014). Here is the abstract.

English parliamentary habeas corpus proceedings have been neglected by scholars. This Article ends that neglect. This Article focuses on the parliamentary habeas corpus proceedings that occurred in the reign of King James. The Article corrects several misunderstandings relating to the history of the writ of habeas corpus in England and to the history of the English Parliament (which in the seventeenth century commonly was referred to as the High Court of Parliament).

Part I of the Article provides answers to questions concerning the historical background and context of the parliamentary habeas corpus proceedings in the High Court of Parliament during James I's reign. What was the origin and significance of the term High Court of Parliament? What was the parliamentary privilege of freedom from arrest, the violation of which could lead to the granting of habeas corpus relief by the House of Lords or the House of Commons? What was the civil arrest system in effect in seventeenth century Englanda system which made it likely that from time to time the parliamentary privilege from arrest would be violated and the parliamentary habeas remedy thereupon invoked? What other remedies, apart from habeas corpus, were available to deal with infringements of the parliamentary arrest privilege? And what were the contours of the parliamentary habeas corpus remedy itself, which appears not to have been successfully invoked prior to the reign of James I?

Parts II and III conclusively demonstrate that in the reign of James I the High Court of Parliament at times functioned as the High Habeas Court of Parliament. Part II provides an in-depth account of the habeas corpus proceedings in the House of Lords in the reign of James I, while Part III does the same for the habeas corpus proceedings in the House of Commons during the reign.

The Article concludes with a detailed discussion of the three major changes this work mandates in our understanding of English legal history.

Download the article from SSRN at the link. 

November 7, 2014

Is Zombification Illegal?

Well, it depends. Of course, you knew I was going to say that. Here's more, courtesy of my good friend Lyonette Louis-Jacques. More law and zombie-ness here from the Law Library of Congress.

Hat tip to Susan Gualtier of the LSU Law Center Library for sending me the links.

For more about law and zombies and whatever, see

Michael L. Smith, Prosecuting the Undead: Federal Criminal Law in a World of Zombies, 61 UCLA L. Rev. Disc. 44 (2013).


John Schwartz, Estate Planning for Zombies, New York Times, July 7, 2012

November 6, 2014

Copyright Marches On Its Stomach?

Michela Giorcelli, Stanford University Department of Economics, and Petra Moser, Department of Economics & National Bureau of Economic Research, have published Copyright and Creativity – Evidence from Italian Operas. Here is the abstract.

This paper exploits variation in the adoption of copyright laws within Italy – as a result of Napoleon’s military campaign – to examine the effects of copyrights on creativity. To measure variation in the quantity and quality of creative output, we have collected detailed data on 2,598 operas that premiered across eight states within Italy between 1770 and 1900. These data indicate that the adoption of copyrights led to a significant increase in the number of new operas premiered per state and year. Moreover, we find that the number of high-quality operas also increased – measured both by their contemporary popularity and by the longevity of operas. By comparison, evidence for a significant effect of copyright extensions is substantially more limited. Data on composers’ places of birth indicate that the adoption of copyrights triggered a shift in patterns of composers’ migration, and helped attract a large number of new composers to states that offered copyrights.
Download the paper from SSRN at the link. 

November 4, 2014

The Early History of U.S. Federal Judicial Selection

Michael J. Gerhardt, University of North Carolina, Chapel Hill, School of Law, and Michael Ashley Stein, William & Mary Law School, are publishing The Politics of Early Justice, Lower Court Federal Judicial Selection 1789-1861 in the Iowa Law Review. Here is the abstract. 

Almost every commentary on the history of the selection of federal judges presumes that there was some prior golden era in which national political leaders focused primarily on the merit of individual nominees and were not unduly swayed by partisan politics or ideology. Numerous constitutional scholars — and national leaders — have therefore roundly criticized the modern day judicial selection process, citing unprecedented delays and a low percentage of approval of federal court nominees as evidence that the system has broken down. They have argued that the ways in which senators, as well as presidents, have handled lower court nominations in the modern era have deviated from how the nation’s first chief executives and the first few Senates handled such nominations. Yet, there is one glaring omission in almost all commentaries on disputes over judicial selection over the past few decades — the absence of any substantiation of an earlier, so-called golden era, in which there actually was general deference within the Senate to presidents’ nominations to federal district and appellate judgeships. Even the classic work on federal judicial selection by the late Kermit Hall begins its analysis of federal judicial selection in 1825, disregarding nearly forty years of prior practices in the field and reinforcing the received but unsubstantiated assumptions about how judicial nominations to lower courts fared beforehand.
This Article is the first to make a serious comprehensive historiography of federal judicial selection from 1789-1861 in the United States. Following six years of archival and secondary source research, we identified each of the lower court nominations made by presidents from George Washington through James Buchanan and then tracked the Senate’s actions on each of their nominations through both archival and secondary sources. Further, we identified the criteria employed in the first seven decades of judicial nominations as well as the outcomes of, and grounds for, the Senate’s proceedings for all of these nominations. We believe that the results of this unprecedented study are significant because they provide a window into an era of early federal judicial selection that has been virtually ignored by both commentators and national political leaders. While we identified some antiquated practices, such as several of the earliest presidents’ judicial nominees actually declining judgeships after the Senate had confirmed their nominations, we found other patterns of practice that are similar to contemporary developments. Among the most significant of these latter patterns are the facts that: every antebellum president took political considerations into account in making nominations; all antebellum presidents, with the exception of William Henry Harrison, had most of their judicial nominations confirmed by the Senate; and three antebellum presidents — George Washington, Martin Van Buren, and James Polk — enjoyed 100% of their judicial nominations confirmed by the Senate. Yet, political parties, particularly in times of divided government, often split along party lines in judicial confirmation proceedings, and several judicial nominations in the antebellum period failed because of opposition based on the particular nominees’ ideologies or past political decisions. In short, there was no golden era of judicial nominations but rather different eras in which politics, in different ways, shaped federal judicial selection.

Download the article from SSRN at the link.