December 24, 2015

Harry Potter's "Hermione" and Color-Blind Casting

Noah Berlatsky weighs in on the controversy over a black Hermione in the play "Harry Potter and the Cursed Child" here, for the Guardian. Says Mr. Berlatsky (in part):
If Hermione is black, then ... themes about racism become much more pointed. Hermione, remember, is the one person at Hogwarts who is horrified by the enslavement of the house elves. When she’s black, her sympathy inescapably becomes rooted in her racial identity – her knowledge of her own marginalised status, and of her own people’s history. Similarly, the racial epithets thrown her way by Draco Malfoy and others take on a greater weight and ugliness. When Malfoy calls her a “filthy little mudblood”, he’s referring to the fact that her parents are non-wizards, or muggles. But if Hermione is black, you have to read it also as a racial insult. If Hermione isn’t white, it can’t be coincidence that the “mud” in “mudblood” is brown.
More about color-blind casting here and about casting Hermione as black here.

December 21, 2015

Edmundson on the Charlie Hebdo and Paris Attacks, John Rawls, and Liberal Political Culture

William A. Edmundson, Georgia State University College of Law, is publishing Charlie Hebdo Meets Utility Monster in The Critique. Here is the abstract.
The Charlie Hebdo massacre in January 2015 and the subsequent attacks of November 13 cast a garish light onto a conundrum at the center of how liberal democracies understand themselves. The Syrian emigrant crisis has added further color. How can a tolerant, liberal political culture tolerate the presence of intolerant, illiberal, sub-cultures while remaining true to its principles of tolerance? The problem falls within the intersection of two developments in the thinking of John Rawls, the great American political philosopher who died in 2002. The later Rawls struggled with the problem of how society might stably survive the clash of plural sub-cultures that a liberal society - unless it is oppressively coercive - must itself foster and allow to flourish. And he separately struggled with the problem of how liberal peoples might peacefully share the planet with illiberal, but "decent" peoples elsewhere. This article shows that Rawls's two solutions do not easily mix.

Download the article from SSRN at the link.

Ross on Prostestants, Catholics, Law, and the Fate of the Soul

Richard J. Ross, University of Illinois College of Law, and University of Illinois at Urbana-Champaign, Department of History, has published Binding in Conscience: Early Modern English Protestants and Spanish Thomists on Law and the Fate of the Soul at 33 Law and History Review 803 (2015). Here is the abstract.
Romans 13:5 said that Christians should obey law not only for fear of punishment but “also for conscience sake.” What could this mean in practice? Early modern Protestants and Catholics agreed that violations of laws that bound conscience, if unrepented, threatened damnation. But which types of law bound? Natural and divine moral law did. Human laws presented a complicated case. Disobedience to only certain classes of human laws — but not all — imperiled the soul. Catholics and Protestants debated how to distinguish ordinances that obligated conscience from those that did not. The stakes were considerable. Romans 13:5 multiplied the potency of rulers, who treasured the suggestion that God’s ultimate penalty of damnation reinforced their authority. But a world in which violation of any ordinance brought damnation would be unlivable for subjects. And it would preclude the bargaining about law at the heart of early modern politics. The application of Romans 13:5 necessarily became a dialectical endeavor. Theorists generated arguments to bind conscience and release it. This essay explores the ways in which early modern Spanish Thomists and English Protestants linked human law to the fate of the soul and challenged that connection. They relied heavily on juridical concepts for assessing the validity and meaning of law in order to know which human ordinances obligated conscience under what circumstances. Manipulating borrowed jurists’ categories, they turned Romans 13:5 into a vital system for regulating conduct, with crucial effects in politics and daily life. Seeing Romans 13:5 from this perspective directs attention to the deep and changing intersections of legal and religious thought over a century and a half.
Download the article from SSRN at the link.

Call for Papers, Copyright and the Circulation of Knowledge

From the website of the Universite Sorbonne Nouvelle

Copyright and the Circulation of Knowledge

du 7 octobre 2016 au 8 octobre 2016
C  A  L  L     F  O  R     P  A  P  E  R  S

International Conference
7-8 October 2016
Salle Claude Simon, Maison de la Recherche, Sorbonne Nouvelle

Copyright and the Circulation of Knowledge:
Industry Practices and Public Interests
in Great Britain from the 18th Century to the Present

New combinations of technology, culture, and business practice are transforming relationships among authors, publishers, and audiences in many fields of knowledge, including journalism, science research, and academia. Self-publishing, open-access, open source, creative commons, crowd sourcing and copy left: these are a few of the key words associated with recent changes in how knowledge is produced and circulated. While being celebrated for their potential to democratize knowledge, many of these changes have been accompanied by heated debates on such questions as the appropriate role of experts and ‘gatekeepers’; how to ensure that such projects are both trustworthy and economically viable; and how best to balance the interests of authors, publishers, and the general public. Copyright is often at the centre of these discussions.

Though the technologies involved have changed dramatically since the eighteenth century, similar questions were debated in the decades following the first British copyright statute (1710). Indeed, today’s discussions of piracy and copyright sometimes echo the eighteenth-century ‘battle of the booksellers' that pitted advocates of a limited-term copyright (and the creation of a public domain) against proponents of authors’ natural (and perpetual) rights over their works. Then as now, many felt that the law was not always in step with cultural norms or trade practices. While some denounced all unauthorized republications as piracies, others experimented with new ways of disseminating knowledge through translations, abridgements, compilations (including the first magazines), and cheap reprints. During the nineteenth century, technological and cultural changes and the increasingly international market for books led to more debates over the legitimacy and public utility of various forms of reprinting, as well as new strategies for combatting piracy.

This conference seeks to bring together specialists of Great Britain from the eighteenth century to the present to explore the complex relationship between copyright and the circulation of knowledge. We welcome case studies that focus on a particular time period as well as papers that show how attitudes and practices have changed over time. Papers that bring past and present concerns into dialogue are especially welcome. Potential topics may include:

¤ the economics of publishing in a given period or sector, and its effects on the circulation of knowledge;
¤ the political, cultural, or philosophical underpinnings of public access to knowledge;
¤ the strategies developed by authors or publishers to protect their intellectual property;
¤ the perceived boundaries between legitimate and piratical publications;
¤ the consequences of specific laws or institutional arrangements for the circulation of knowledge in different domains;
¤ the use of historical examples in arguments about copyright and the public domain;
¤ the different forms of publication developed to republish or recirculate existing works, whether authorized or not.

Interested scholars should send an abstract of their proposed paper (200 words) and a short biography-bibliography (100 words)
by 15 January 2016. Answers will be given by 15 March 2016.
Proposals should be sent to

¤ Emmanuelle Avril - professeur des universités - Université Sorbonne Nouvelle (CREW/CREC EA 4399)
¤ Bénédicte Miyamoto - mcf - Université Sorbonne Nouvelle (CREW/CREC EA 4399)
¤ Sarah Pickard - mcf - Université Sorbonne Nouvelle (CREW/CREC EA 4399)
¤ Will Slauter - mcf - Université Paris Diderot (LARCA UMR 8225)

¤ Louisiane Ferlier - digitization project manager - the Royal Society
Link to the call for papers here.
 Tip of the beret to Kate Sutherland, twitter handle @lawandlit

December 19, 2015

Star Wars and....

Cultural studies are in the spotlight with the release of the newest Star Wars film.  According to a new study from Thomson-Reuters, nearly 1200 papers focus on "Star Wars and" sorts of themes, including Star Wars and psychology, Star Wars and religion, and Star Wars and ancient Rome. What, no Star Wars and law? You know there's at least one paper out there among the galaxies on the topic.

Link here.
For a little more, check out this blog's index.

More here from Pacific Standard.

December 17, 2015

DesBaillets on Magna Carta and Contemporary Canadian Law

David DesBaillets, University of Quebec at Montreal (UQAM), Faculty of Law; University of Ottawa, Faculty of Law, has published Symbolism and Significance: The Place of Magna Carta in Contemporary Canadian Law. Here is the abstract.
When the e-mail arrived in my inbox inviting me to view the Magna Carta I was, as I imagine any law student would be, utterly thrilled. The event was part of the international celebration of the 800th anniversary of the ancient Latin legal document from the 13th century BCE that would see a handful of surviving copies tour the world, including a Canadian sojourn, and be given the sort of red carpet treatment normally reserved for rock stars and foreign heads of State.
Download the article from SSRN at the link.

Repost and Reminder: Call for Papers from No Foundations: An Interdisciplinary Journal of Law and Justice

Repost and Reminder:


No Foundations is currently accepting general submissions and book reviews for NoFo 13 (2016).

To facilitate the review process please send us your manuscript before March 1, 2016. Please include an abstract of no more than 200 words with your submission.

For more information check here:

No Foundations is an international peer-reviewed journal committed to publishing interdisciplinary legal scholarship of the highest quality at the interface between law and justice. We encourage contributions from all areas of law and beyond, with the aim of bridging the gap once opened between law and other social and human activities and experiences. On the assumption that law is a socially embedded phenomenon that cannot be fully understood as an autonomous discipline, we aim to connect law both with its real effects on the lives of individuals and societies, and with the realm of human aspirations and ideals that give it life and meaning.

Contact Information:

Monica Lopez Lerma, PhD Coeditor-in-Chief,
No Foundations: An Interdisciplinary Journal of Law and Justice

Researcher,CoE in Foundations on European Law and Polity Research
P.O. Box 4, Yliopistonkatu 3 00014 University of Helsinki, Finland

Levy and Cohen on Mental Illness, Dangerousness, and Involuntary Civil Commitment

Ken Levy, Louisiana State University Law Center, and Alex S. Cohen, Louisiana State University, have published Commentary on Szmukler: Mental Illness, Dangerousness, and Involuntary Civil Commitment in Philosophy and Psychiatry: Problems, Intersections, and New Perspectives 147(Daniel D. Moseley and Gary J. Gala: Routledge, 2016). Here is the abstract.
Prof. Cohen and I answer six questions: (1) Why do we lock people up? (2) How can involuntary civil commitment be reconciled with people's constitutional right to liberty? (3) Why don't we treat homicide as a public health threat? (4) What is the difference between legal and medical approaches to mental illness? (5) Why is mental illness required for involuntary commitment? (6) Where are we in our efforts to understand the causes of mental illness?

Download the essay from SSRN at the link.

Gordon on the History of International Criminal Law and War Crimes at the Beginning of the Twentieth Century

Gregory S. Gordon, The Chinese University of Hong Kong, Faculty of Law, has published International Criminal Law's 'Oriental Pre-Birth': The 1894-1900 Trials of the Siamese, Ottomans and Chinese in 4 Historical Origins of International Criminal Law 119 (M. Bergsmo et. al., TOAEP, 2015). Here is the abstract.
Conventional wisdom often traces the origins of international criminal law (ICL) to the 1474 prosecution for atrocities in Alsace of Burgundian governor Peter von Hagenbach and then straight to the Nuremberg and Tokyo trials post-World War II. But this paper demonstrates that history has ignored a remarkable decade at the end of the nineteenth century when three international criminal proceedings with links to the Orient took place: (1) in 1894, a French-Siamese mixed court sat in judgment of Phra Yot, a Siamese governor charged with the death of a French military commander; (2) in 1898, an International Military Commission of four European powers prosecuted versions of war crimes and crimes against humanity arising from Muslim-Christian inter-communal violence on the Ottoman-controlled island of Crete; and (3) in 1900, another international criminal tribunal, this one also consisting of four European powers, presided over the trial of participants in the Boxer Rebellion for proto-crimes against humanity. The paper describes the origins of these three "Oriental" tribunals, including an overview of the noble, and at turns, cynical rationales that inspired the Great Powers to turn to adjudication efforts and international processes. ICL scholarship has examined the trials separately but never together, within their broader historical context. Doing so reveals that they took place during an odd confluence of European colonialism's apogee and the international peace movement's founding. This fascinating period features the erosion of the Congress of Vienna framework, Industrial Revolution demand for overseas cheap labor, raw materials, and new markets, and nascent efforts at establishing transnational arbitral institutions. While Africa was carved up among the European powers at the 1884 Berlin Conference, there was no such orderly division of territory in the Orient. The paper posits that the featured trials are the product of peace movement arbitral impulses in coping with outbursts of violence and resulting tensions among the Europeans competing for imperial possessions in the context of that violence -- without a Berlin Conference-style regional master plan. The trials anticipated many important ICL developments, including proto-formulations of war crimes and crimes against humanity and the establishment of ad hoc and hybrid tribunals. But, sadly, they did not pave the way for Allied use of ICL to achieve justice in the imminent wake of World War I. At that point in history, the Europeans were ready to sit in judgment of their imperial subjects but not of themselves. Thus, these remarkable ICL efforts seem more a subliminal outgrowth of the era's Zeitgeist than a needed groundwork for post-Versailles justice. Still, when viewed holistically and contextually, these late-nineteenth century inquests supply an important missing link between the Hagenbach trial and the proper advent of ICL in the twentieth century.
Download the essay from SSRN at the link.

Manderson and Van Rijswijk on Representations of Land and Sea in Law, Literature, and Geography

Desmond Manderson, ANU Colege of Law, ANU COllege of Arts and Social Sciences, and McGill University Faculty of Law, and Honni Van Rijswijk, University of Technology Sydney, Faculty of Law, have published Introduction to Littoral Readings: Representations of Land and Sea in Law, Literature, and Geography at 27 Law & Literature 167 (2015). Here is the abstract.
This essay introduces a collection of new work that addresses law, literature, and geography. Organized around the relationship between land and sea, and in that sense building on the book of that title by Carl Schmitt, the collection recognizes the importance of geographic spatial phenomena in the contours of our literature, and as these play out in legal concepts. But we need to pay attention to the particular contours of this relation, the highly specific -- indeed incorrigibly plural -- forms and fantasies such a relationship takes in specific places and concerning specific jurisprudential issues. The first axis involves recognizing the role of the imaginary in transforming social and legal conditions, and in delineating legal responsibility. The second axis invites us to recognize how closely connected are legal structures and practices to the material experience of concrete spaces and environments. The fictional nature of literature, the non-fictional nature of geography, and the normative nature of law are constantly refracting each other. The way to understand law as culture is to see how its modes and strategies pass through literature and the imaginary on the one hand, by way of geography and the material on the other. In this essay and the collection that it introduces, the particularities of Australia -- its law, its geography, and its literature -- are used as case studies through which to develop this interdisciplinary methodology.
The full text is not available from SSRN.

Dabner on Multiculturalism and Legal Plurality in Australia

Justin H. Dabner, James Cook University, Cairns Campus, has published Multiculturalism and Legal Plurality in Australia. Here is the abstract.
The great multicultural experiment that is Australia has engendered a reconsideration of core values. Even the traditionally conservative legal system has not been immune. While the law remains anchored in its British Christian common-law traditions, the influence of other cultures and beliefs are emerging. The primary two instances of this are the partial accommodation of Indigenous customary law and a debate over the accommodation of Islamic law principles. The adoption of “foreign” legal concepts goes to the essence of what it means to be a liberal democratic society: does it mean wholesale legal plurality, or are there foreign legal principles excluded because they are unacceptable to a free and equal society? Putting this in the Australian context, should Australia accept the customary and religious laws of minorities, or is multiculturalism about establishing one legal framework that applies to all, equally, and without discrimination? This article explores the implications for the legal system of an increasingly multicultural Australia. It will be observed that legal plurality does exist in Australia but largely in the shadows where the vulnerable of society lack protection.
Download the article from SSRN at the link.

Ngara on Language and the Immigration Debate

Emily C. Torstveit Ngara, University of Baltimore School of Law, is publishing Aliens, Aggravated Felons and Worse: When Words Breed Fear and Fear Breeds Injustice in the Stanford Journal of Civil Rights and Civil Liberties. Here is the abstract.
As presidential candidates casually and inaccurately throw the term “anchor baby” into public discourse, the time is right to examine the Immigration and Nationality Act for many other examples of misleading language in the statute. This article undertakes the critical task of examining how the language of immigration law, using prevailing immigration metaphors, manipulates perceptions of noncitizens. From the use of the term “alien” to describe any noncitizen and emphasize otherness, to describing “prosecutorial” enforcement decisions to strengthen the alien-as-criminal narrative, these word choices are significant. This is especially true when noncitizens are interacting with the criminal justice system. These words and metaphors find their way into the collective subconscious and impact cognitive bias against immigrant communities. This article identifies several terms that are particularly problematic, then advocates for alternative language that more accurately reflects of the definitions provided by the INA.
Download the article from SSRN at the link.

Kang on Conflicting Images of Manliness in Civil Society

John M. Kang, St. Thomas University School of Law, has published Fractured Manliness in volume 13 of the Seattle Journal for Social Justice (2014). Here is the abstract.
In this very short contribution to a symposium organized by the Seattle Journal for Social Justice, I illustrated how the law, on the one hand, stigmatizes in civil society the same sort of courage that it impels men to embrace in war. More than another instance of majestic hypocrisy, the disjuncture speaks to a fractured image of men, and how society exploits this fracture for its immediate ends.
Download the essay from SSRN at the link.

Muniz-Fraticelli and David on Religious Institutionalism and the Canadian Charter of Rights and Freedoms

Victor M. Muniz-Fraticelli, McGill University Faculty of Law and Department of Political Science, and Lawrence David, McGill University Faculty of Law, are publishing Religious Institutionalism in a Canadian Context in the Osgoode Hall Law Journal. Here is the abstract.
Does freedom of religion protect religious institutions, or does it only protect the individual religious conscience? Canadian jurisprudence after the Charter of Rights and Freedoms takes a decidedly individualist turn, deliberately avoiding the question of the rights of religious institutions. This individualist focus neglects the historical trajectory of religious freedom, the social understanding of religious faith by religious adherents themselves, and the institutional structures in which religion emerges and develops, and through which it is ultimately protected. An institutional account of religious liberty can complement the individualist account, as it better explains the legal order, better reflects actual religious practice, and better preserves both institutional and individual religious liberty. Recent decisions of the Supreme Court of Canada go some way towards correcting this individualist bias, but balk at resolving the legal status of religious institutions. This persistent ambiguity will prove problematic in controversies over religious autonomy already making their way through the courts.
Download the article from SSRN at the link.

December 11, 2015

Adam Lamparello on the Integrated Law School Curriculum

Adam Lamparello, Indiana Tech Law School, has published The Integrated Law School Curriculum. Here is the abstract.
In January 2014, the American Bar Association’s Task Force on the Future of Legal Education stated that “[a]n evolution is taking place in legal practice and legal education needs to evolve with it.” To this end, the Task Force recommended that the law school curriculum “needs to shift still further toward developing the competencies and professionalism required of people who will deliver services to clients.” In fact, the Task Force emphasized that “[a] graduate’s having some set of competencies in the delivery of law and related services, and not just some body of knowledge, is an essential outcome for any program of legal education.” To develop a competency-based program of legal education, legal educators must support “experimentation and innovation,” and recognize that the time for fundamental curricular changes has arrived. Importantly, however, responsible curricular reforms will reflect an evolution, not a revolution, from traditional law school pedagogy, and adopt a careful blueprint for integration, not merely innovation. Responsible integration - and a curriculum in which students acquire core lawyering competencies - requires structural and sequential changes. Regarding structural changes, law schools must re-think the traditional “silo” model of legal education, in which the three pillars of legal education - doctrinal, skills, and clinical courses are nestled into separate parts of the curriculum, as if one has no relation to the other. For example, traditional doctrinal courses often predominate the first year of law school, while skills courses emerge in the second year and live-client clinical instruction is emphasized in the third year. To some degree, this makes sense; students must learn foundational legal concepts and be trained to think like lawyers before they can apply the law to a set of facts, draft a legal document, or represent a client. But the mistake most legal educators make is not realizing that this paradigm can remain intact while simultaneously integrating doctrine, skills, and clinics across and throughout the curriculum. Simply put, the structural prerequisite for responsible integration involves collapsing the separation between the three traditional pillars of legal education and a commitment to building a bridge from law school to the legal profession. With respect to sequencing, law schools should adopt a chronological model in which law students draft litigation and transactional documents - and complete real-world simulations - in the order they would in practice. As discussed in detail below, this can be accomplished through a cross-curricular model. Under this approach, students are given a multi-issue fact pattern in the first semester of law school and proceed to litigate a fictional case from beginning to end. In the first semester, students perform a client interview, followed by a retention agreement, research assignment, predictive memorandum, and complaint. In the second semester, students draft a motion to dismiss, answer, discovery, and motion for summary judgment, and in the third semester draft an appellate brief. In so doing, students will understand the context within which law is practiced, gain experience in drafting multiple real-world documents, and acquire practical skills that can be transferred to other contexts. Based on these principles, this article provides a blueprint for a three-year law school curriculum that retains the traditional emphasis on doctrine, skills, and clinics, but makes structural and sequential changes to ensure that the quality of legal education will build upon the past - and prepare students for the future. Part II sets forth the building blocks upon which a truly integrated program of legal education should rest, including competency-driven learning outcomes, the adoption of formative and summative assessments, and a focus on context-based learning and metacognition. Part III includes a proposed three-year curriculum that, among other things, incorporates a cross-curricular model, six-semester required legal writing program, and five-semester clinical program. Ultimately, as the Task Force noted, responsible curricular reforms require “a reorientation of attitudes toward change, including market-driven change, by persons within the law school,” and recognition that “[l]aw schools, whatever their individual differences, have a basic societal role: to prepare individuals to provide legal and related services.” Indeed, “fusing practice with theory and doctrinal instruction will best prepare students for the demands of practice in the twenty-first century.”
Download the article from SSRN at the link.

Igor Judge on Legal Philosophy and Jurisprudence: A New Book from Hart Publishing

New from Hart Publishing:

Igor Judge, The Safest Shield: Lectures, Speeches and Essays (2015).

This collection of previously unpublished lectures, speeches and essays by Lord Judge, former Lord Chief Justice of England and Wales (2008-2013), represents Lord Judge's views and wisdom on a wide-range of legal topics, including the constitution, liberties and rights, the administration of justice and the judiciary, as well as offering a series of personal reflections. Full of knowledge and insight reflecting a career at the pinnacle of the English legal profession, it makes for informative and thought-provoking reading and will be of interest to everyone who enjoys thinking about the law and the role it plays in society.

December 9, 2015

Moses and Gollan on the Importance of History in Understanding the Impact of New Technologies on Law

Lyria Bennett Moses and Nicola Jane Gollan, both of the University of New South Wales, have published The Illusion of Newness: The Importance of History in Understanding the Law-Technology Interface as UNSW Law Research Paper No. 2015-71. Here is the abstract.
Despite law being a field known for its backward-looking focus on precedent, legal scholarship addressing issues associated with technology too often only looks forward. It is where legal scholarship focuses closely on a particular technology that the risk of ignoring history and the broader context is greatest. The problem, where it arises, is caused by undue focus on the newness of new technologies, and is not unique to law. There is a problematic tendency to exaggerate the newness of issues arising from technological developments. While some legal issues are truly new in that they arise for the first time as a result of a new technological activity or entity, others are simply new manifestations of issues that have arisen previously in other contexts. Even where particular issues are new in this sense, they are not necessarily limited to the particular technological context in which they first arise. Undue focus on socio-technical circumstances narrows the terms of debate. It is argued that the analysis of legal dilemmas associated with particular technologies requires a broad historical perspective that looks beyond the particular circumstances in which they arise. The paper explores three cases: social media, intellectual property, and reproductive technologies. Each case highlights the need for greater scepticism about which issues are truly new, and demonstrate some of the dangers of “over-hyping” the impact of new technologies on law.
Download the article from SSRN at the link.

Ari Ezra Waldman on Copyright Law and Revenge Porn

Ari Ezra Waldman, New York law School, has published Images of Harassment: Copyright Law and Revenge Porn at 23 Federal Bar Council Quarterly 15 (Sept./Oct./Nov. 2015). Here is the abstract.
Nonconsensual pornography, commonly known as “revenge porn,” usually occurs when an individual (usually a man) publicly posts online sexually explicit images of his former partner (usually a woman). Although normally the stuff of tort law, revenge porn offers copyright attorneys opportunities to help victims, as well: the offending images are often selfies taken by the victim and thus covered by the victim’s copyright. There is, to date, no Second Circuit case law on the subject, making this area uniquely suited to creative social impact litigation. Until state legislatures or Congress pass well-drafted criminal revenge porn statutes, copyright law remains a necessary though inadequate weapon to combat revenge porn in the Second Circuit and elsewhere.
Download the article from SSRN at the link.

December 8, 2015

Ralf Poscher on the Hermeneutical Character of Legal Construction

Ralf Poscher, Albert-Ludwigs-Universitaet, Freiburg, is publishing The Hermeneutical Character of Legal Construction in Law's Hermeneutics: Other Investigations (Simone Glanert and Fabien Girard, eds., London: Routledge, 2016). Here is the abstract.
Ever since Carl Friedrich von Savigny and Francis Lieber introduced the distinction, lawyers and legal theorists distinguish between legal interpretation and legal construction. The article wants to defend and reconstruct the distinction on the basis of an intentionalist account of hermeneutics. Interpretation in the most general sense is a specific form of explanation. It is an explanation at the level of intentional phenomena like believes, desires, intentions, actions and their products. The interpretation of texts is a specific case of this more general kind of explanation. It explains the meaning of utterances on the basis of the intentions of their authors. In legal interpretation the author is the legislator. Legal construction sets in when legislative intentions have run out. Legal construction amends the law. But how could legal construction still be considered a hermeneutical activity if it cannot explain meaning by relying on prior intentions of an author, if it does not interpret existing law, but creates new law? Aren’t many legal theorists – be they legal realists or normativists like Hans Kelsen – right to insist that legal construction is more akin to legislation even if at a different level of abstraction? The article defends the hermeneutic character of legal construction by showing that it distinguishes itself from legislation through its relation to a text. It is the intentionalist structure of justification, which gives legal construction its hermeneutic character and set it apart from legislation even though it creates new law. That the justification cannot relate to an actual legislative intent but has to take refuge to a fictive one distinguishes legal construction from legal interpretation. Once in place the intentionalist account of legal construction can clarify some of its features like its relation to rule of law standards, its generality, consistency and rationality requirements, as well as its truth aptness.
Download the essay from SSRN at the link.

Torben Spaak on the Canberra Plan

Torben Spaak, Stockholm University, has published The Canberra Plan and the Nature of Law. Here is the abstract.
In this article, I shall consider a method for conceptual analysis which has been called the Canberra Plan. The Canberra Plan is not, however, aimed primarily at the elucidation of the relevant concept, but at the metaphysical question of identifying the descriptive (or natural or physical) property that corresponds to the concept. The idea of the Canberra Plan is, more specifically, (a) to clarify the import of the concept by reference to the role the concept plays in a network of concepts, principles, and claims, and (b) to investigate and see what, if any, descriptive property corresponds to the concept thus analyzed. The question of what descriptive property, if any, corresponds to the concept of law should be of considerable interest to jurisprudents, not only because the meta-ethical question of whether legal properties are descriptive, or even natural or physical, is generally interesting, but also because the existence of such descriptive (or natural or physical) legal properties is precisely what is asserted by legal positivists through the so-called social thesis, which has it that we determine what the law is using factual criteria. In order to investigate this question, I shall carry out a Canberra-style analysis of the concept of law, and I shall argue, tentatively, (1) that X is law if, and only if, (i) X is a relation between (alfa) a system of norms all of which can be traced back to one of several recognized sources of law that can be handled on the basis of exclusively factual considerations, and (beta) an organization that is constituted and regulated by the norms of the system and whose task it is to interpret and apply these norms, (ii) X aspires to regulate social life in general, (iii) X is non-optional, and (iv) X claims to trump competing normative systems. In addition, I shall argue, equally tentatively, (2a) that the property of being law is precisely the descriptive property that satisfies the conditions (i)-(iv), (2b) that this property is a role property, not a realizer property, and (2c) that there is very little to be said about the legal realizer property on a general level and that the legal realizer property differs in this regard from moral and mental realizer properties. I shall, however, also argue (3a) that the analyst who applies the Canberra Plan to the concept of law will almost certainly find it very difficult to come up with a collection of sufficiently rich analytic platitudes, especially what Frank Jackson calls input and output clauses, (3b) that he is not likely to get much help from the idea of mature legal thinking (introduced here as an analog to Jackson’s idea of mature folk morality), and (3c) that the so-called permutation problem, which is very problematic, will arise as a result of the above-mentioned lack of input and output clauses. And I shall therefore argue (4) that, as things stand, the Canberra Plan will not help us clarify the nature of law or lend support to the strong social thesis of legal positivism.
Download the article from SSRN at the link.

December 7, 2015

Fred Shapiro and Julie Graves Krishnaswami On the Origins of the Bluebook

Fred R. Shapiro, Yale University Law School, and Julie Graves Krishnaswami, Yale Law School, are publishing The Secret History of the Bluebook in volume 100 of the Minnesota Law Review (2016). Here is the abstract.
The Bluebook, or Uniform System of Citation as it was formerly titled, has long been a significant component of American legal culture. The standard account of the origins of the Bluebook, deriving directly from statements made by longtime Harvard Law School Dean and later Solicitor General of the United States Erwin N. Griswold, maintains that the citation manual originated at the Harvard Law Review in the 1920s and was created or adapted by Dean Griswold himself. This account is wildly erroneous, as proven by intensive research we conducted in the archives of Harvard and Yale. In fact, the Bluebook grew out of precursor manuals at Yale Law School, apparently inspired by a legal scholar even more important than Griswold, namely Karl N. Llewellyn. The "uniform citations" movement that began at Yale was actually at first opposed by Harvard. In his most extreme misstatement, Griswold asserted that a collaborative decision was made in the 1920s by Harvard Law Review, Yale Law Journal, Columbia Law Review, and University of Pennsylvania Law Review to share the revenues from publishing the Bluebook (eventually amounting to millions of dollars) among the four journals. There is indeed now four-way revenue-sharing, but it did not commence until the 1970s, and then only after a revolt of the three "junior partners" against Harvard Law Review's complete monopolization of Bluebook income for half a century, a revolt initiated by Joan Wexler of the Yale Law Journal. Some readers may question whether originating the hyper-complicated Bluebook should be a source of pride for Yale. Our response is that, although the Bluebook version that subsequently developed under the leadership of Harvard Law Review currently consists of 582 pages, the two earliest Yale precursors of the Bluebook were, respectively, one page and fifteen pages long.
Download the article from SSRN at the link.

More on this article here from the New York Times.

Norman P. Ho on State of Nature Theory in Chinese Political and Legal Thought

Norman P. Ho, Peking University School of Transnational law, has published State of Nature Theory in Traditional Chinese Political and Legal Thought at 8 Northwestern Interdisciplinary Law Review 131 (2015). Here is the abstract.
State of nature theory has served as an important theoretical foundation for various political theories. It is usually used to justify the development and existence of certain political institutions and/or to explain why and how a government could come into being from a state of nature. While numerous studies have examined the role of state of nature theory in Western political thought — most notably, in the political thought of Thomas Hobbes and John Locke — very few studies have examined state of nature theory in Chinese political thought. This Article argues that certain traditional Chinese thinkers did in fact explicitly set forth state of nature arguments as theoretical foundations and justifications for their political thought. It describes and analyzes the state of nature theories of three important traditional Chinese thinkers: Mozi (c. 480-390 B.C.), Xunzi (c. 4th to 3rd century B.C.), and Liu Zongyuan (773-819 A.D.). It also compares their respective state of nature theories with one another, as well as with those of Hobbes and Locke. It concludes with a discussion of the implications of its findings on Chinese political and legal theory more broadly.
Download the article from SSRN at the link.

Lewis A. Grossman on Medical Licensing and Medical Freedom in the Gilded Age

Lewis A. Grossman, American University College of Law; Cornell Law School, has published Orthodoxy and 'The Other Man's Doxy': Medical Licensing and Medical Freedom in the Gilded Age. Here is the abstract.
This is a draft of Chapter Two of my book-in-progress under contract with Oxford University Press titled You Can Choose Your Medicine: Freedom of Therapeutic Choice in American History and Law. This chapter shows how freedom of therapeutic choice remained an influential theme in American policy and thought in the Gilded Age. Despite the almost universal restoration of medical licensing after the Civil War, the new licensing regimes were drafted and enforced in ways that protected the rights of practitioners and patients of nonorthodox schools of medicine. This chapter starts by briefly describing the main alternative medical sects during the Gilded Age, including Homeopathy, Eclectic medicine, Christian Science, and Mind Cure. It then examines the resurgence of medical licensing and shows how the continuing popular preference for freedom of therapeutic choice was reflected in the medical licensing statutes as written and implemented. The chapter considers the meaning and impact of Dent v. West Virginia, the 1889 Supreme Court case upholding medical licensing, and it explains how courts, largely as a result of this decision, played little role in guaranteeing freedom of therapeutic choice during this period. Chapter Two then explores the content of the arguments directed against discriminatory medical licensing in the Gilded Age. It discusses how these arguments were “constitutional,” even though they occurred almost entirely outside of court. The chapter considers the persistence of four strains of medical freedom rhetoric from the antebellum years (bodily freedom, economic freedom, freedom of belief, and freedom of inquiry), and it also identifies some important differences between the anti-licensing literature of the two eras. Chapter Two concludes by examining the overall political philosophy of medical freedom activists during this period, in particular the extent of their libertarianism.
Download the chapter from SSRN at the link.

Adam Feldman on Merits Briefs and Supreme Court Opinions

Adam Feldman, University of Southern California, Department of Political Science, has published A Brief Assessment of Supreme Court Opinion Language. Here is the abstract.
Supreme Court merits briefs are often the justices and clerks' primary resources for constructing opinions. Using linguistic analysis software, this paper compares nearly 9,500 merits briefs between 1946 and 2013 with their respective opinions to examine what leads the justices to incorporate varying amounts of language from the briefs in their opinions. The paper finds that the basic sources are the receptivity of the justice, the influence of the brief-writer, and the type of case.
Download the article from SSRN at the link.

John Q. Barrett on the Opening of the Nuremberg Trials

John Q. Barrett, St. John's University School of Law; Robert H. Jackson Center, has published Opening the Nuremberg Trial: The Moment of November 20, 1945 as St. John's University Legal Studies Research Paper No. 15-0032. Here is the abstract.
On November 20, 1945, the International Military Tribunal (IMT), created by the victorious World War II Allied powers, began criminal trial proceedings in Nuremberg in the Allied-occupied former Germany. This first and only international Nuremberg trial involved twenty-one individual defendants and six organizations that had been leading parts of Nazi Germany’s government and war-waging. On November 20, 2015, the 70th anniversary of the start of the Nuremberg trial, the city of Nuremberg hosted in the trial site, Palace of Justice Courtroom 600, a discussion among three men who worked there during 1945-46. Dr. Yves Beigbeder served as an assistant to French judge Henri Donnedieu de Vabres. Father Moritz Fuchs was the bodyguard of United States Chief of Counsel Robert H. Jackson. Dr. George Sakheim was an interpreter and translator in the Interrogation Division, U.S. Office of Chief of Counsel. These introductory remarks preceded the panel discussion. I describe some of the dimensions, including military power, political decision making, legal concepts, personalities and logistics, that led the Allies to the Nuremberg courtroom in November 1945.
Download the article from SSRN at the link.

J. A. Jeremy Telman on Originalism

D. A. Jeremy Telman, Valparaiso University Law School, is publishing Originalism: A Thing Worth Doing . . . in volume 42 of Ohio Northern University Law Review (2016). Here is the abstract.
Originalism in constitutional interpretation continues to grow in its reach, its sophistication, its practical applicability and its popular support. Although originalism first developed in the 1960s as a doctrine of judicial modesty, originalist judges are now far more confident in their ability to discern the Constitution’s original meaning and thus willing to strike down legislative enactments inconsistent with that meaning. Two aphorisms by the leading practitioners of originalism sum up originalism’s journey. Justice Scalia, writing in the 1980s, conceded that originalism was merely “the lesser evil” and consoled himself with the Chestertonian dictum that “a thing worth doing is worth doing badly.” Justice Thomas places fewer limitations on his own belief in originalist method and adopts as his motto “any job worth doing is worth doing right.” The challenge for contemporary originalism is that it is not the sort of thing that G.K. Chesterton thought was worth doing badly, but it also may be the sort of thing that is very difficult to do right.
Download the article from SSRN at the link.

Andreas Kulick on Narratives of International Investment Law

Andreas Kulick, University of Tuebingen, is publishing Narrating Narratives of International Investment Law: History and Epistemic Forces in International Investment Law and History (Rainer Hofmann, Christian Tams, and Stephan W. Schill, eds., Edward Elgar, 2016). Here is the abstract.
Telling the history of something requires choosing a perspective. This perspective, or narrative, is the lens through which we look at a specific topic or field. The picture that thereupon emerges is necessarily shaped by the perspective chosen. Strictly speaking, we cannot tell the ‘history of X’, only attempt to approach a historical account of one or several aspects of X by way of the perspective or perspectives we employ to look at X. Discussing, thus, the history of international investment law equally and inevitably requires choice of perspectives/narratives; and by choosing such narrative(s) the ‘narrator’ influences the audience’s grasp of the field whose ‘history’ he or she presents. In this contribution I will seek to illustrate how the investment community presents certain narratives of the history of international investment law, asserting – sometimes deliberately, sometimes inadvertently – their objectivity and thereby shaping certain perceptions of the history according to its view on the present and future of the field. Hence, my task is primarily to present, by way of examples, how certain epistemic communities (see II.) employ such narratives and thereby enhance investment law scholars’ and practitioners’ awareness vis-à-vis the constructive character of these narratives (III.). However, as I will further develop in the conclusion (IV.), this is not at all to say that the study of history and telling certain narratives is a futile exercise for international investment law to undertake. What is central, is making transparent the constructive nature of the narrative in order for the audience that is told this specific historical account to be aware that this is just one of many possible perspectives the authority of which hinges exclusively on its plausibility.
Download the essay from SSRN at the link.

December 4, 2015

Christopher Nyinevi on the Influence of Superstition on Ghana's Customary Law

Christopher Nyinevi, Kwame Kkrumah University of Science & Technology Faculty of Law, is publishing Winnowing the Chaff Out of the Grains: The Intermixture of Customary Law and Spiritualism in Ghana in the Commonwealth Law Bulletin no. 3 (September 2015). Here is the abstract.
Belief in the supernatural runs so deep in the cultural lives of Ghanaians that customary law – ‘the rules of law, which by custom are applicable to particular communities in Ghana’ – has not been spared its influence. This article asserts that state sanctioned enforcement of superstition inspired customs violates the fundamental constitutional value of freedom of conscience relative to persons who do not subscribe to such beliefs in the supernatural. But in order to accommodate the twin state interests of preserving customary laws and respecting the freedom of conscience, this article proposes the development of a body of customary laws devoid of superstition. It sets out to discuss why this idea is imperative and how it can be achieved.
The full text is not available from SSRN.

December 3, 2015

Call for Papers, Graduate Law Student Conference, Osgoode Hall, 2016

York University, Toronto, has issued a Call for Papers for the 2016 Osgoode Hall Graduate Law Student Conference. The theme of the conference is "Exploring Law and Change Through Interdisciplinary Research, New Legal Realism and Other Perspectives--Choose Your Own Advanture."
Where law engages with social issues and interactions, many legal scholars have begun to apply knowledge from outside the disciplinary boundaries of law. From this interdisciplinary perspective, the conference will consider the myriad ways in which law facilitates, obstructs, and reacts to change. They also welcome general submissions from those whose work falls outside this theme. Submit proposals for papers, presentations, panels, workshops and other interventions (including art-based and performance contributions) from Master’s and Doctoral students, lawyers, educators, artists, and activists. Submissions may also be works in progress or finalized pieces, intended for or drawn from, thesis or dissertation proposals or chapters, major research papers, course papers, post-doctoral projects, and so on. To apply, submit an abstract of approximately 250 words in length and include (i) your name, (ii) title of the paper, (iii) your organization or institution (if any), and (iv) a list of up to five keywords to

The deadline for submission is 4 December 2015 and successful applicants will be notified by early January. Information about the conference site, accommodations, and conference fees will be provided with your notice of acceptance. If you are successful, your presentation outline (a minimum of 500 words) or final paper must be submitted by 10 February 2016.

The conference will be held at Osgoode Hall Law School in Toronto, Ontario, from February 18th to 19th, 2016.

Alan Coffee On Mary Wollstonecraft's Concept of Virtue

Alan M. S. J. Coffee, King's College London, The Dickson Poon School of Law, is publishing Mary Wollstonecraft, Public Reason and the Virtuous Republic in The Social and Political Thought of Mary Wollstonecraft (Sandrine Bergès and Alan Coffee (eds.), Oxford: Oxford University Press, 2016). Here is the abstract.
Although ‘virtue’ is a complex idea in Wollstonecraft’s work, one of its senses refers to the capacity and willingness to govern one’s own conduct rationally, and to employ this ability in deliberating about matters of public concern. Wollstonecraft understands virtue to be integral to the meaning of freedom rather than as merely instrumentally useful for its preservation. It follows, therefore, that a free republic must be a virtuous one. The first virtue of social institutions, we might say, is ‘virtue’ itself. In a virtuous republic all citizens, from no matter which social group, are able to represent themselves in law and in public debate. This is a demanding condition, requiring not just suitably robust republican institutions but an open and accommodating public culture in which sufficient numbers of citizens are positively engaged in ensuring that the available stock of background ideas and values is representative, diverse and inclusive.
Download the essay from SSRN at the link.

John Walton on Private Eyes In Fact and Fiction

John Walton, Professor of Sociology, University of California, Davis, has published The Legendary Detective: The Private Eye in Fact and Fiction (University of Chicago, 2015). Here is a description from the publisher's website.
“I’m in a business where people come to me with troubles. Big troubles, little troubles, but always troubles they don’t want to take to the cops.” That’s Raymond Chandler’s Philip Marlowe, succinctly setting out our image of the private eye. A no-nonsense loner, working on the margins of society, working in the darkness to shine a little light. The reality is a little different—but no less fascinating. In The Legendary Detective, John Walton offers a sweeping history of the American private detective in reality and myth, from the earliest agencies to the hard-boiled heights of the 1930s and ’40s. Drawing on previously untapped archival accounts of actual detective work, Walton traces both the growth of major private detective agencies like Pinkerton, which became powerful bulwarks against social and labor unrest, and the motley, unglamorous work of small-time operatives. He then goes on to show us how writers like Dashiell Hammett and editors of sensational pulp magazines like Black Mask embellished on actual experiences and fashioned an image of the PI as a compelling, even admirable, necessary evil, doing society’s dirty work while adhering to a self-imposed moral code. Scandals, public investigations, and regulations brought the boom years of private agencies to an end in the late 1930s, Walton explains, in the process fully cementing the shift from reality to fantasy. Today, as the private detective has long since given way to security services and armed guards, the myth of the lone PI remains as potent as ever. No fan of crime fiction or American history will want to miss The Legendary Detective.
1 Enter the Detective 2 Working Men and Women 3 Agency Business 4 Detectives at Work 5 Crimes of Detectives 6 Investigation and Reform 7 The Storied Detective 8 Making a Legend

Robert Ferguson's New Book: Practice Extended

Robert Ferguson, Professor of Law, Columbia University, is publishing Practice Extended: Beyond Law and Literature (Columbia University Press, 2016). Here is a description of the book's contents from the publisher's website.
Practice Extended helps general readers navigate the intricacies of legal language and thought, strengthening their grasp on law's relationship to society and culture. The book details how judicial opinions are written, how legal thought and philosophy inform ideas, and how best to appreciate a courtroom novel. With chapters on immigration, eloquence, the Constitution, Ulysses, and mercy, Practice Extended is a far-ranging work on the importance of language in law and the interrelation of law and literature.

HT to Simon Stern @ArsScripta

Nicholas Aroney on the Meaning, Persistence, and Importance of the Taking of Public Oaths

Nicholas Aroney, University of Queensland TC Beirne School of Law, has published Faith in Public Office: The Meaning, Persistence and Importance of Oaths. Here is the abstract.
Oaths of office are strangely ubiquitous in liberal-democratic regimes. They bind office-holders to their duties of office, but they do so by invoking divine or religious sanction for the performance of those duties. This divine witness to the oath of office appears to stand in as a guarantor of the political order, but also looms large as an authority that is separate from, and in some sense stands above, the political order. This opens up the possibility that this other sovereign may make moral demands that supersede those of the political order and the duties incumbent upon the office holder. This is the paradox of the oath of office. It both guarantees the performance of official duties and subjects the content of those duties to external judgement. It is a paradox embedded in the very nature of the oath of office, which captures within its short compass the very large question of the relationship between religious conviction, moral principle and political power. Through a study of the use of oaths in our political systems (including their secular adaptation, the affirmation of office), much light can be shed on the nature of faith in public office. Note: An edited version of this paper has been published on the ABC Religion and Ethics website.
Download the article from SSRN at the link.

Lua K. Yuille on Categories of Citizenship

Lua K. Yuille, University of Kansas School of Law and University of Wisconsin Law School is publishing Individuals, Corporations, and the Pedagogy of Citizenship in volume 63 of the Kansas Law Review. Here is the abstract.
This essay examines access to and experiences in the market for citizenship (writ large to include legal, cultural, social, and political) across three broad categories: Black Americans, immigrants, and corporations. Drawing on the critiques reanimated by the killings of youth, like Michael Brown in Ferguson, Missouri, the essay suggests that, while Black Americans enjoy full legal citizenship, they, nevertheless, face often insurmountable obstacles in accessing and negotiating the market for arguably more valuable forms of citizenship. Contrasting the position of a range of noncitizens -- from pop stars to migrant workers -- the essay reaffirms the common wisdom that for immigrants, the market for citizenship is an unpredictable and unreliable lottery. Then, using recounting the story of Burger King's partial expatriation, it illustrates that corporations participate in a market for citizenship that is flexible and negotiable, not unlike traditional markets. Although, the stories this essay tells and the discourses associated with them are well known, their juxtaposition reveals a new question. What is the lesson taught by these disparate experiences? Describing law as a societal pedagogy, the essay suggests a heuristic through which that question may begin to be explored.
Download the essay from SSRN at the link.

Peter K. Yu on Asian Philosophy and Intellectual Property

Peter K. Yu, Texas A&M University School of Law, is publishing Intellectual Property, Asian Philosophy and the Yin-Yang School in volume 7 of the WIPO Journal (2015). Here is the abstract.
Written for a special issue on intellectual property philosophy, this article begins by providing a brief discussion of the many different schools of Asian philosophy, including those in China and India. Although Confucianism has garnered considerable attention in intellectual property literature, the nexus between Asian philosophy and the notion of intellectual property rights remains largely understudied. Thus, instead of revisiting the debate on intellectual property and Confucianism, this article aims to introduce to the Western audience Yin-Yang, one of the six dominant ancient schools of Chinese philosophy. It argues that this school’s focus on contexts, relationships and adaptiveness and its high tolerance for contradictions have made it particularly well-equipped to address the ongoing intellectual property challenges concerning both emerging economies and the digital environment.
Download the article from SSRN at the link.

Brian G. Slocum on Legal Texts and Their Interpretations

Brian G. Slocum, University of the Pacific McGeorge School of Law, is publishing Conversational Implicatures and Legal Texts in Ratio Juris (2016). Here is the abstract.
Legal texts are often given interpretations that deviate from their literal meanings. While legal concerns often motivate these interpretations, others can be traced to linguistic phenomena. This paper argues that systematicities of language usage, captured by certain theories of conversational implicature, can sometimes explain why the meanings given to legal texts by judges differ from the literal meanings of the texts. Paul Grice’s account of conversational implicature is controversial, and scholars have offered a variety of ways to conceptualize implicatures and Grice’s maxims of conversation. Approaches that emphasize the systematic nature of implicatures can provide explanatory accounts of the gap between literal meaning and the meaning communicated in the text. For example, a theory of scalar implicature, a type of generalized conversational implicature, can account for the application of the interpretive principle known as ejusdem generis, which narrows the scope of ‘catch-all’ clauses located at the end of lists of items. Despite the availability of such theories, some scholars have argued that conversational implicatures are not applicable to legislation. The arguments, based primarily on the uniqueness of the legislative context and its non-cooperative nature, though, do not establish the inapplicability of conversational implicatures to legislation.
Download the article from SSRN at the link.

December 2, 2015

Joyce and Simm on Zero Dark Thirty, International Law, and Film

Daniel Joyce, Lecturer, UNSW Australia, Faculty of Law, and Affiliated Research Fellow, Erik Castren Institute of International Law and Human Rights, University of Helsinki, and Gabrielle Simm, Chancellor's Postdoctoral Research Fellow, University of Technology, Sydney, Faculty of Law, and Visiting Fellow, Australian Human Rights Centre, UNSW Australia Faculty of Law, have published Zero Dark Thirty: International Law, Film, and Representation at 3 London Review of International Law 295 (2015). Here is the abstract.
This article explores the relationship between film and international law by reference to the feature film Zero Dark Thirty (2012). The authors examine this film in the context of international law, while also considering related questions of genre, torture, gender and targeted killing.
The full text is available by subscription.

Bandes on Ferguson and Changes in Legal Education

Susan A. Bandes, DePaul University College of Law, has published Moral Shock and Legal Education at 65 Journal of Legal Education 298 (2015). Here is the abstract.
This essay is part of a Journal of Legal Education symposium issue on how recent high profile revelations about racially discriminatory policing in Ferguson and elsewhere have affected the way law professors teach, think, write and talk about criminal justice, civil rights, and law in general.
Download the essay from SSRN at the link.

Dhondt on the Aftermath of the War of the Spanish Succession and Commercial Policy

Frederik Dhondt, Research Group (CORE), Research Foundation Flanders, Department of Interdisciplinary Study of Law, Private Law and Business law, Legal History Institute, has published 'Arrestez Et Pillez Contre Toute Sorte De Droit': Commercial Treaties, Neutrality and the Aftershocks of the Spanish Succession as CORE Working Paper Series 2015-II (Vrije Universiteit Bussel). Here is the abstract.
The Peace of Utrecht (11 April 1713) ended a century of bloodshed on the continent. Inter alia by setting new rules for trade with the Spanish Indies and redesigning the balance of Italy. Yet, five years later, a new conflict broke out. France and Britain united with the Emperor against Spain. No particular convention was reached regarding commercial matters for the duration of the conflict. The present paper analyses the complex interplay between trade policy, privateering, warfare, neutrality, corruption, consular and local jurisdiction and diplomatic intercession, based on individual cases contained in the French Maritime records (Archives Nationales, Marine, series B1), as well as Franco-British diplomatic correspondence (Archives Diplomatiques, National Archives). Its main purpose is to help understanding the disconnect between, on the one hand, cordial Franco-British relations regarding “high policy” and, on the other hand, unfettered commercial rivalry.
Download the working paper from SSRN.

Todres on Cinematic Portrayals of Human Trafficking

Jonathan Todres, Georgia State University College of Law, has published Human Trafficking and Film: How Popular Portrayals Influence Law and Public Perception at 101 Cornell Law Review Online 38 (2015). Here is the abstract.
Popular portrayals of human trafficking matter. They shape the prevailing understanding of the issue, which in turn influences the law and policy developed to address human trafficking. This essay examines the interplay between law and culture, specifically cinematic expressions. It reviews three well-known films on human trafficking and explores some of the key misconceptions in each movie. The essay then shows how these misconceptions are prevalent in many law and policy responses to human trafficking. Finally, the author suggests how scholars and advocates might respond more effectively to cinematic (and other media) portrayals of human trafficking.
Download the article from SSRN at the link.

Jiang and Hsu on Lorenz von Stein and Chinese Constitutional Legal History

Daw-Yij Jiang and Kuo-Ching Hsu, both of NAtional Sun Yat-sen University, have published Lorenz Von Stein and Chinese Constitutional Movement: A Reexamination of Legal History. Here is the abstract.
This article aims to explore the relationship between Lorenz von Stein and Chinese constitutional movement. It will undertake an historical comparison of events in order to interpret the development of the Chinese constitution during the late Qing and the early period of the Chinese Republic. It is well known that the Chinese constitution (1905-1916) was greatly influenced by the Meiji constitution, but it is often overlooked that the Meiji constitution was actually directly influenced by the German constitution, especially by Stein’s thoughts on political theory. It has always been acknowledged that Stein had an influence on Chinese constitution; however, the relationship was often associated with the connection between Germany, Japan, and China. In this article, we try to explore his influence on those who drafted the Meiji constitution to further understand Stein’s indirect influence on the Chinese constitution through those Japanese pioneers. In particular, we discover the dynamic law of historical change which presents in Stein’s writings, if we review the interactive law between state and society in the Chinese constitutional history.
Download the article from SSRN at the link.

Kreitner, Rosenberg, and Tomlins on Arts and the Aesthetic in Legal History

Roy Kreitner, Tel Aviv University, Buchmann Faculty of Law, Anat Rosenberg, Interdisciplinary Center (IDC) Herzliyah-Radzyner School of Law, and Christopher Tomlins, University of California, Berkeley, Jurisprudence and Social Policy Program, have published Arts and the Aesthetic in Legal History at 2 Critical Analysis of Law 314 (2015). Here is the abstract.
This special issue of Critical Analysis of Law brings together a rich array of articles at the intersections of arts and legal history. In this introduction we reflect on some of the benefits and implications of this interdisciplinary juncture, which contemporary legal historians have been slow to engage. We highlight the significance of engaging with the arts for theoretical conundrums central to legal history: art as source, the philosophy of time, methodological scripts, and the relation of the descriptive to the normative. The arts, we argue, prove vital in tackling and breaching the limits of imagination imposed by our time and place — disciplinary place included.
Download the essay from SSRN at the link.

Matthew Windsor On Unreliable Narration and Legal Interpretation in International Law

Matthew Windsor, University of Oxford, has published Narrative Kill or Capture: Unreliable Narration in International Law at 28 Leiden Journal of International Law 743 (2015). Here is the abstract.
This article evaluates the benefits of a ‘turn to narration’ in international legal scholarship. It argues that significant attention should be paid to the narrators who employ international law as a vocabulary to further their professional projects. Theories of unreliable narration help map consensus within international law’s interpretive community in a manner that is acutely sensitive to point of view and perspective. The article examines the existence and extent of unreliable narration through a case study: the practice of targeted killing by the Obama administration in the United States. The struggle for control of the narrative, by narrators with different professional roles and cognitive frames, is ultimately a struggle for interpretive power, with the resulting ability to ‘kill or capture’ divergent narrative visions. Unreliable narration offers a critical heuristic for assessing how narratives are generated, sustained, and called into question in international law, while fostering reflexive inquiry about international law as a professional discipline.
The full text is not available on SSRN.

December 1, 2015

Todres and Higinbotham on Human Rights In Children's Literature

Jonathan Todres, Professor of Law, Georgia State University College of Law, and Sarah Higinbotham, Marion L. Brittain Postdoctoral Fellow, Georgia Institute of Technology, have published Human Rights in Children's Literature: Imagination and the Narrative of Law (Oxford University Press, 2016). Here is a description of the contents from the publisher's website.
How can children grow to realize their inherent rights and respect the rights of others? In this book, authors Jonathan Todres and Sarah Higinbotham explore this question through both human rights law and children's literature. Both international and domestic law affirm that children have rights, but how are these norms disseminated so that they make a difference in children's lives? Human rights education research demonstrates that when children learn about human rights, they exhibit greater self-esteem and respect the rights of others. The Convention on the Rights of the Child -- the most widely-ratified human rights treaty -- not only ensures that children have rights, it also requires that states make those rights "widely known, by appropriate and active means, to adults and children alike." This first-of-its-kind requirement for a human rights treaty indicates that if rights are to be meaningful to the lives of children, then government and civil society must engage with those rights in ways that are relevant to children. Human Rights in Children's Literature investigates children's rights under international law -- identity and family rights, the right to be heard, the right to be free from discrimination, and other civil, political, economic, social and cultural rights -- and considers the way in which those rights are embedded in children's literature from Peter Rabbit to Horton Hears a Who! to Harry Potter. This book traverses children's rights law, literary theory, and human rights education to argue that in order for children to fully realize their human rights, they first have to imagine and understand them.

Order online at and enter ALAUTHC4 at checkout to save 30%.

Harold Anthony Lloyd On Reforming Legal Education

Harold Anthony Lloyd, Wake Forest University School of Law, is publishing Raising the Bar, Razing Langdell in the Wake Forest Law Review. Here is the abstract.
As an introduction to the Wake Forest Law Review’s symposium edition on “Revisiting Langdell: Legal Education Reform and the Lawyer’s Craft,” this article highlights longstanding, substantial damage Christopher Columbus Langdell has inflicted on law schools and legal education. Much of this damage stems from three of Langdell’s wrong and counterintuitive notions: (1) law is a science of principles and doctrines known with certainty and primarily traced through case law, (2) studying redacted appellate cases is “much the shortest and best, if not the only way” learning such law, and (3) despite Langdell’s own roughly fifteen years of practice experience, practice experience taints one’s ability to teach law. This article highlights problems with, and harms resulting from, each of these wrong notions. Among other things, this article explores: (A) contradictions, oversights, and wrong assumptions in Langdell’s views, (B) how the very meanings of “theory” and “practice” reject Langdell, (C) how the necessary role of experience in meaning itself rejects Langdell, (D) parallels between Langdell and unworkable Cartesian dualism, and (E) how the necessary role of framing in the law rejects Langdell. This article also briefly surveys some remedies suggested by reason, experience, common sense, and modern cognitive psychology. These include rejecting the redacted appellate case method as a primary mode of instruction, recognizing the necessary fusion of theory and practice, recognizing the need for practice experience in law professors, recognizing the embodied nature of meaning and the resulting role of practice and simulation in good legal education, embracing the humanities (including classical rhetoric) in legal education, abandoning meaningless distinctions such as distinctions between “doctrinal” and “non-doctrinal” courses, and abandoning “caste” systems demeaning those with law practice experience and elevating those who lack such necessary experience.
Download the essay from SSRN at the link.

Kenneth M. Ehrenberg on Law's Artifactual Nature

Kenneth M. Ehrenberg, University of Alabama, Department of Philosophy, and School of Law, has published Law's Artifactual Nature: How Legal Institutions Generate Normativity, in Reasons and Intentions in Law and Practical Agency 247-266 (George Pavlakos and Veronica Rodriguez-Blanco, eds.; Cambridge University Press, 2015). Here is the abstract.
I argue that law is best understood as an institutionalized abstract artifact. Using the ideas of John Searle on institutions and Amie Thomasson on artifacts, I show how the law is capable of generating new reasons for action, arguing against recent work by David Enoch who holds that legal reason-giving is ultimately a form of triggering conditional reasons.
Download the essay from SSRN at the link.

Prakash Shah on Durkheim, Law, and Religion

Prakash Shah, Queen Mary University of London, School of Law, has published Does Durkheim Enhance Our Understanding of Law and Religion? as Queen Mary School of Law Legal Studies Research Paper No. 212/2015. Here is the abstract.
In this paper, I view Durkheim in two ways: in his intellectual context and as a scientist whose claims can be tested independently of that context. Durkheim’s claims on religion demonstrate his Western culturality, which constrains and qualifies those claims and limits their relevance today. His universal claims about religion actually depend on and presuppose core Christian theological themes to make them intelligible and raise questions that are possible only within a cultural context like the Western culture which is constituted by a religion: Christianity. This is made much more obvious when placing Durkheim’s claims against the theory of religion developed by Balagangadhara, whose work shows why the claim of religion as a universal derives from Christian theology, why religions are what the Semitic religions are, and why Asia as a culture has no religion. Balagangadhara’s theory solves problems that Durkheim’s work either does not address itself to or cannot explain and generates important new questions for law and religion studies.
Download the article from SSRN at the link.

Bryant Garth and Yves M. Dezalay on Legal Theory, Strategies of Learned Production, and Learned Law

Bryant Garth, University of California, Irvine, Southwestern Law School, and American Bar Foundation, and Yves M. Dezaley, French National Center for Scientific Research (CNRS), are publishing 'Legal Theory,' Strategies of Learned Production, and the Relatively Weak Autonomy of the Subfield of Learned Law in In Search of Contemporary Legal Thought (Justin Desautels-Stein and Christopher Tomlins, eds., Cambridge University Press), Forthcoming). Here is the abstract.
This chapter focuses on the relationship between learned or scholarly law and economic and political power. It begins by introducing Pierre Bourdieu’s writings on the role of law and legal theories, which provide a general sociological framework, and then it draws on that approach to examine the role of learned law in the United States. The first part examines a key period in the genesis of the U.S. legal field and its hierarchies -- the outsourcing of the reproduction of lawyers and the compilation of legal knowledge to the law schools late in the nineteenth century. Law professors and their theories were quite marginal in the US legal field at that time. The second part examines the Legal Realist “coup” of the law professors against the dominance of the elite judges and corporate lawyers in the 1930s. The third part discusses similar challenges to the place of elite lawyers and judges in the 1960s from the left and more recently from the right. In each case, we show that legal academics and their theories are part of a larger story of adaptation and relegitimation of the enduring hierarchies of the U.S. legal field. A major theme, which these histories make clear, is the relatively weak autonomy of the field of learned law in the United States. Within this larger story, however, we point out the factors that created what looks in retrospect like a “golden age” of academic theory in the 1980s.
Download the essay from SSRN at the link.

November 30, 2015

Tomer Broude on Geographical Indications and Cultural Diversity

Tomer Broude, Hebrew University of Jerusalem, International Law Forum, is publishing From Chianti to Kimchi: Geographical Indications, Intangible Cultural Heritage, and Their Unsettled Relationship with Cultural Diversity in Geographical Indications at the Crossroads of Trade, Development, and Culture: Perspectives from Asia Pacific (Irene Clboli and Ng-Loy Wee Loon, eds., Cambridge: Cambridge University Press, 2016). Here is the abstract.
This article provides a critical perspective on the impact of two particular international legal constructs - Geographical Indications (GIs) and Intangible Cultural Heritage (ICH) - on cultural diversity, with a focus on culinary culture. An examination of the legal attributes of these mechanisms as well as their actual effects raises significant doubts as to their contribution to cultural diversity. The article builds on previous work, and parts of it have been excluded, but it includes a detailed analysis of the ICH inscription of Korean kimchi-making.
Download the essay from SSRN at the link.

Simon Chesterman On the Myth of Magna Carta

Simon Chesterman, National University of Singapore, Faculty of Law, has published The Myth of Magna Carta — Or, How a Failed Peace Treaty with French Aristocrats Was Reinvented as the Foundation of English (and American) Liberty. Here is the abstract.
Magna Carta bears an iconic status in legal history. Signed eight centuries ago by King John at Runnymede, near Windsor, it laid the foundations for constraints on arbitrary power — the basis for the rule of law, democracy, and human rights. The only problem with the historical account is that almost none of it is true. The agreement at Runnymede was not a constitutional document intended to limit power but a peace treaty to preserve the King’s rule. Despite many paintings and a commemorative £2 coin showing him holding Magna Carta and a quill, King John never signed it. Oh, and it was not called Magna Carta.
Download the article from SSRN at the link.

Oloka Onyango On the Development of Ugandan Law

Oloka Onyango, Makerere University, has published Ghosts and the Law: An Inaugural Lecture. Here is the abstract.
Ugandan law has long been haunted by ghosts. They come in many varied shapes and sizes — as the Common Law itself, as the Doctrine of Precedent and even in the manner, dress, deportment and language of our courts. All these are the ‘Ghosts of History Past, Present and Future.’ In the arena of Constitutional Law and governance the ghost appears in the form of the Political Question Doctrine (PQD), a concept most associated with the 1966 High Court decision, Uganda v. Commissioner of Prisons, ex parte Matovu. But as with all spiritual beings — such as the Roman God, Janus — there are two sides to the case. In other words, there are not just one but (at least) two ghosts of ex parte Matovu. There is the backward-looking one which supported the extra-constitutional overthrow of government in 1966 and paved the way for military dictatorship, judicial restraint and conservatism. And in the same case, there is its reverse which “jettisoned formalism” to the winds, overruled legal “technicalities,” and underlined the need for the protection of fundamental human rights. The jettisoning formalism decision eventually opened the way to a robust and growing industry of Public Interest Litigation (PIL) in Uganda. As we celebrate 20 years of the 1995 Constitution and approach the 50th anniversary of the decision in the case, it is the most appropriate time to look back and consider which of the ghosts of ex parte Matovu has been most successful in influencing the Ugandan body politic. What does the future portend for the life of these fraternal twins?
Download the lecture from SSRN at the link.

Kenneth J. Keith on Choosing How to Codify, Develop, and Reform the Law

Kenneth J. Keith, Victoria University of Wellington, Faculty of Law, has published Making Law – Who, How and What?, a speech given at the International Conference "Fifty Years of the Law Commissions: The Dynamics of Law Reform Now, Then and Next," (London, July 2015). Here is the abstract.
This paper was adapted from a speech given at the international conference “Fifty Years of the Law Commissions: The Dynamics of Law Reform Now, Then and Next”. The speech aimed to offer a wider view of the matters discussed at the conference. In the paper, the author comments on some of the choices which are made and which will continue to be made in codifying, developing and reforming the law and the broader constitutional system. Those choices involve three questions – who – the participants, how – the processes they follow, and what – the principles they apply and the product of the work, including its form. The author reflects on the bases on which those choices are to be made by drawing on examples from discrete areas of law: reform of electoral systems, equality and the prohibition of discrimination, the law of piracy and maritime crime, and the laws of interpretation.
Download the essay from SSRN at the link.

Ryan Mitchell on Legal Activism and Demands for Rights in Manchukuo, 1931-1945

Ryan Mitchell, Yale University, has published Legal Activism and Rights Consciousness in a 'Puppet State': Law in Manchukuo's Civil Resistance, 1931-1945. Here is the abstract.
Though a crucial element in Japan’s gradual early 20th century military and economic encroachment on China, the “puppet state” of Manchukuo was also paradoxically characterized by a high degree of legitimizing legal rhetoric. While its political realities generally failed to reflect these idealized foundations, in some capacities the regime actually did provide significant space for legal and other forms of civil society resistance, including by Chinese legal professionals. In order to better understand the early reception of Western, rights-based concepts of law’s social function in East Asia, then, Manchukuo is a valuable subject of study. As this Article shows, there is evidence of at least germinal development of a kind of rights-oriented legal activism that, in the Chinese context, is often viewed as first emerging only in the late-20th century Reform Era.
Download the article from SSRN at the link.

Anat Rosenberg on Liberal Thought and "Wuthering Heights"

Anat Rosenberg, Interdisciplinary Center (IDC), Herzliyah-Radzyner School of Law, has published Liberal Anguish: Wuthering Heights and the Structures of Liberal Thought at 69 Nineteenth Century Literature 1 (2014). Here is the abstract.
After decades of sustained academic critiques along established lines, liberalism has recently attracted renewed evaluations. These readings treat complexity as inherent in liberalism, and proceed to explore its structures beyond suspicious hermeneutics. This essay argues that Emily Bronte's Wuthering Heights (1847) constitutes an early and sophisticated argument about the structures of complexity in liberalism. Not only does Bronte's novel merit entry into the discussion as a conceptual contribution, but it also offers an aesthetic enactment of the anguish that liberal structures of complexity were to evoke for generations to follow, an anguish experienced already at its troubled reception.
Download the article from SSRN at the link.

Anat Rosenberg on Consumer Finance and "The Picture of Dorian Gray"

Anat Rosenberg, Interdisciplinary Center (IDC), Herzliyah-Radzyner School of Law, has published The Realism of the Balance Sheet: Value Assessments between the Debtors Act and the Picture of Dorian Gray at 2 Critical Analysis of Law 363 (2015). Here is the abstract.
This essay examines English parliamentary debates about consumers’ financial means in the context of the 1869 Debtors Act, which oversaw working-class imprisonment for debt. Debates reveal a shift in the financial epistemology favored by participants, from a view of means based on what I term social credit, to a view of means based on a balance sheet paradigm. The rise and naturalization of the balance-sheet paradigm was both interrogated and challenged by one of the era’s most controversial texts, Oscar Wilde’s The Picture of Dorian Gray. I rely on the novel to examine the deep implications of the shift for the history of consumption, and to recall the drama it involved.
Download the article from SSRN at the link.

Lenora Ledwon On the Graphic Novel and Legal Storytelling

Lenora F. Ledwon, St. Thomas University School of Law, is publishing Understanding Visual Metaphors: What Graphic Novels Can Teach Lawyers About Visual Storytelling in volume 63 of Drake Law Review (2015). Here is the abstract.
During the 2008 presidential election, a powerful image circulated in the media: an illustration of presidential candidate Barack Obama as Superman. In the illustration, titled Time for a Change, Obama is dressed in a suit and tie and stands in the iconic pose of Clark Kent changing into Superman. He is ripping open his shirt to reveal a superhero costume underneath, but instead of an S for Superman, his costume features a large O for Obama. The image references both Obama's campaign slogan, "Change," and the changing-clothes/changing-identities moment in Superman comic books when the mild-mannered Clark Kent transforms into a superhero. This single image tells a resonant story about a seemingly ordinary man who has extraordinary abilities and it taps into our psychological desire for a hero or savior to help in troubled times. It also daringly addresses the subtext of race in the election by portraying the most American of superheroes, Superman, as a black man. This artwork, created by well-known comic book and graphic novel illustrator Alex Ross, is a visual metaphor. It is no coincidence that this powerful image is rooted in the world of graphic novels because graphic novels are replete with visual metaphors, and the genre itself is characterized by visual storytelling. Lawyers can learn a great deal from the visual storytelling in such images. Specifically, this Article suggests that lawyers can improve their visual literacy and become better visual storytellers by studying graphic novels.
Download the article from SSRN at the link.