Drafting Foundational Documents: Think Before You Label?

Brian Christopher Jones, Academia Sinica--Institutum Iurisprodentiae (IIAS), is publishing Preliminary Warnings on 'Constitutional' Idolatry in Public Law (October 2015). Here is the abstract.

Contemporary societies covet the notion of a written constitution. Yet should Britain choose to draft one, can I offer this important suggestion: please, call it anything but a “Constitution”. This statement is only slightly made in jest; in fact, it is quite serious. Constitutional fetishism, constitutional worship or “constitutional idolatry”, as Michael Klarman refers to it, is nothing to take lightly. While there has been a copious amount of commentary on the prospects and potential form of a UK written constitution, in addition to its history and evolution, the possibility of constitutional fetishism or constitutional idolatry becoming a significant factor throughout the citizenry, in the political arena, and especially in constitutional review and adjudication, appears to have been left out of the discussion. This is unfortunate, because the enactment of a codified Constitution will have an impact upon all these aspects in one way or another, and the potential development of some form of constitutional worship should be further discussed and debated before any action is taken.

Although it is acknowledged that enacting any type of foundational document, whatever called, encompasses particular implications, this piece contends that attaching the word “constitution” to a foundational document enhances such consequences, leading to a more distinctive “constitutional” fetishism. Difficulties arise because over centuries the word “constitution” has evolved from a largely structure-based meaning into a widely expansive symbolic meaning. Beyond merely delineating the structure of a state, the word now carries a variety of connotations. Some see it as the ultimate illustration of “we the people” popular sovereignty or as a vindication of the rule of law, while others see it as the completion or ultimate formation of a state or a government. Indeed contemporary constitutions, and especially Constitutions, serve highly symbolic functions that can manifest into significant issues for law, politics and the wider democratic state. Nowadays the word “constitution” is often used as a legal, political, and psychological truncheon: it has been employed to have ordinary documents masquerade as constitutions, been brazenly used to hollow out jurisdiction, and also been applied to have legislators think in legal, as opposed to political, terms. Given some of the rhetoric in the UK surrounding the possibility of a written constitution coming into being (i.e., “A New Magna Carta”, “Constitution Carnival”), this article concentrates on a few acute examples of “constitutional” fetishism the US is currently grappling with; problems which could become substantially more relevant if a founding British document is enacted.

Download the article from SSRN at the link.

Legal Archives, Scholarship and Legal Thinking: The Case of Law and the Humanities

Katherine Biber and Trish Luker, both of the University of Technology Sydney, Faculty of Law, have published Evidence and the Archive: Ethics, Aesthetics, and Emotion in volume 40 Australian Feminist Law Journal (2014). Here is the abstract.

This essay engages with contemporary uses and considerations of the archive in interdisciplinary law and humanities scholarship, introducing the contributions the authors have selected to include in a special issue of the Australian Feminist Law Journal. Thinking of legal archives as both material and conceptual, it raises questions about researchers’ ethical, aesthetic and emotional relations with their sources. The authors identify some of the ways the archive is conceived in contemporary humanities scholarship and draw connections with material and conceptual approaches to law’s archive. In some contributions, legal sources are treated as a literal archive, raising questions about access, use and interpretation of archival materials. Other contributions engage with contemporary theoretical approaches to thinking archivally, involving processes of questioning, abstracting, and counter-archival imaginings.

Download the article from SSRN at the link.

New Techniques In Oral Advocacy

Jill Barton, University of Miami School of Law, has published Oral Advocacy in 90 Seconds: Turning Fear into Fun at Perspectives: Teaching Legal Research and Writing 115 (2014). Here is the abstract.

Oral Advocacy in 90 Seconds: Turning Fear into Fun: This article discusses a technique for teaching oral advocacy to beginning law students using topics that typically are not related to the law. Because oral arguments can be among the most intimidating experiences of the first year of law school, giving students as much practice as possible is helpful. This practice can begin on the first day of class: students choose a topic, pick a side, and make their case.

Download the article from SSRN at the link.

The Law Must Not Only Be Done, But Be Seen To Be Done

Jordan M. Singer, New England Law School, is publishing Judges on Demand: The Cognitive Case for Cameras in the Courtroom in volume 115 of the Columbia Law Review Sidebar (2015). Here is the abstract.

In 2011, the federal district courts began a pilot program to record and post full-length videos from selected civil proceedings. The program was deliberately structured to preserve the quality and integrity of ongoing adjudication. Three-and-a-half years in, the program has revealed an equally important, and unanticipated, benefit: improving the quality and integrity of future adjudication. This essay describes this second benefit and explains why the pilot program should be extended beyond its scheduled sunset in July 2015.

Download the article from SSRN at the link.

Flat-Out Fascinating

From Nick Sousanis, something special. Dr. Sousanis (Columbia, Ed.D. 2014)  has transformed his one-of-a-kind dissertation into a monograph examining comics and graphics in culture.

Description from HUP's website.

The primacy of words over images has deep roots in Western culture. But what if the two are inextricably linked, equal partners in meaning-making? Written and drawn entirely as comics, Unflattening is an experiment in visual thinking. Nick Sousanis defies conventional forms of scholarly discourse to offer readers both a stunning work of graphic art and a serious inquiry into the ways humans construct knowledge.
Unflattening is an insurrection against the fixed viewpoint. Weaving together diverse ways of seeing drawn from science, philosophy, art, literature, and mythology, it uses the collage-like capacity of comics to show that perception is always an active process of incorporating and reevaluating different vantage points. While its vibrant, constantly morphing images occasionally serve as illustrations of text, they more often connect in nonlinear fashion to other visual references throughout the book. They become allusions, allegories, and motifs, pitting realism against abstraction and making us aware that more meets the eye than is presented on the page.
In its graphic innovations and restless shape-shifting, Unflattening is meant to counteract the type of narrow, rigid thinking that Sousanis calls “flatness.” Just as the two-dimensional inhabitants of Edwin A. Abbott’s novella Flatland could not fathom the concept of “upwards,” Sousanis says, we are often unable to see past the boundaries of our current frame of mind. Fusing words and images to produce new forms of knowledge, Unflattening teaches us how to access modes of understanding beyond what we normally apprehend.

More here.

Dr. Sousanis is currently a post-doctoral fellow in the Department of English, University of Calgary.

Seen Through an Artist's Eyes: Law and Violence In the Lives of Women

Yxta Maya Murray, Loyola Law School, Los Angeles, has published Art, Violence, and Women in CUNY Law Review's Footnote Forum, December 2014. Here is the abstract.

What do "violence" and "peace" mean in the lives of women? The Supreme Court in 2000's U.S. v. Morrison didn't have a clue. Artist Wangechi Mutu does, though. In honor of the 20th anniversary of the Violence Against Women Act, Yxta Maya Murray offers the artist's studies of both of these conditions as an antidote to Morrison's etiolated vision.

Download the article from SSRN at the link.

Evaluating the Lougheed Era In Alberta, 1973-1993

Ted Morton, University of Calgary School of Public Policy, and Meredith McDonald have published The Siren Song of Economic Diversification: Alberta’s Legacy of Loss as SPP Research Paper No. 8-13. Here is the abstract.

Former Alberta premier Peter Lougheed is celebrated for his defence of the province and Western Canada during the energy wars of the 1970s, and deservedly so. Prime Minister Pierre Trudeau was a formidable opponent. He was able and willing to use the full arsenal of federal powers to redirect soaring western energy revenues away from Alberta to Ottawa. For those of us in Western Canada, it is unpleasant to imagine what the outcome of this struggle would have been if a lesser man than Peter Lougheed had been at Alberta’s helm. But there is another aspect of the Lougheed legacy that is less remembered because it is less celebrated — also deservedly so. These were Lougheed’s ambitious economic diversification projects. Between 1973 and 1993 (when Ralph Klein became premier), the Lougheed-Getty “forced-growth” economic diversification projects are conservatively estimated to have cost Albertans $2.2 billion. While former premier Don Getty got most the blame for these losses (as many occurred during his watch), most of these programs began earlier. Lougheed’s push for government-led diversification of the Alberta economy was a policy hallmark of his 1971 electoral breakthrough, and marked a sharp break from three decades of Social Credit laissez-faire policies.

The Lougheed-Getty diversification fiascos are of more than just historical interest. While the subsequent Progressive Conservative (PC) regime of Premier Ralph Klein (1993-2006) followed an explicit philosophy of “government is not in the business of business,” the more recent Stelmach (2006-11) and Redford (2011-14) governments have not.

Both have embraced government-sponsored “value-added” and diversification initiatives, including the North West Redwater Partnership upgrader and two new endowments to provide “funding for social and cultural innovation, and agricultural innovation.”

As Alberta’s fifth premier in the past nine years, Jim Prentice, takes the helm and tries to restore some stability to Alberta’s public finances, it merits revisiting the Lougheed-Getty experience for lessons learned. Our read of their record cautions against going down the same road again. While we identify several successes (e.g., Syncrude, Alberta Energy Company, and the ethane-based petrochemical industry), these were mostly in the hydrocarbon energy sector, and so contributed little to diversifying Alberta’s economy. Our analysis identifies the largest dollar losses (the “Dirty Dozen”), several of which suggest that failure to control costs is endemic to government-led projects. Last but not least, the sheer number and diversity of government-funded projects reflects an unhealthy culture of corporate cronyism. With billions of dollars sitting in the newly created Alberta Heritage Savings Trust Fund earmarked for “diversification” and “capital projects,” the temptation to spend became irresistible. The Heritage Fund, rather than serving its original purpose of a long-term “rainy-day account,” became a giant slush fund for ministers’ pet projects. The result is that, in real dollars, the Heritage Savings Trust Fund has a lower net worth in 2015 than it did in 1987.

By the time Klein won the leadership of the PCs in 1993, his predecessors had racked up over $23 billion in net debt. Klein is widely celebrated by some (and criticized by others) for the harsh budget cuts he made to eliminate the structural deficit he inherited. Less well known is that the Klein team also terminated almost all the Lougheed-Getty diversification and stimulus programs. In their stead, the Klein governments — under the leadership of treasurers Jim Dinning and Stockwell Day — pursued a diversification policy based on macroeconomics: making Alberta the most tax- competitive jurisdiction in Canada. This “build-it-and-they-will-come” approach was intended to attract both financial and human capital. This approach has enjoyed modest success thus far, as witnessed in the growth of the financial services sector and the relocation of many corporate head offices to Calgary. It is clearly a lower-risk path to sustained prosperity than the ill-fated, government-led “forced-growth” initiatives of the Lougheed-Getty era.

Download the paper from SSRN at the link.

Supreme Court Clerks of the Thirties (Part II)

Barry Cushman, Notre Dame Law School, has published The Clerks of the Four Horsemen (Part II) at 40 J. Sup. Ct. Hist. 55 (2015). Here is the abstract.

This Part II of a two-part article follows the interesting and often surprising lives and careers of the men who clerked for Justices George Sutherland and Pierce Butler. These biographical sketches confound easy stereotypes, and prove the adage that law, like politics, can make for strange bedfellows.

Download the article from SSRN at the link.

Is Lack of Accuracy In TV Police Dramas Really Such a Bad Thing?

Retired police officers on reality and fiction in tv police shows, and one reason why crime and police should hold back on accuracy--potential perpetrators could be out there taking notes. More here in an article by Sophie Doughty for (Newscastle) Chronicle Live.

"Old Hickory" and a New Diagnosis

Donald Matthew Mender, Yale University School of Medicine, has published Boundary Violations of the U.S. Constitution: The Case of Old Hickory in The Neurobiology of Social Disruption: Intersectional Perspectives on Psychiatry, Pathology, and Society (Potomac Institute Press, 2015). Here is the abstract.

Object relations, the developmental neurobiology of attachment, and critical theory are enlisted in order to illuminate ways that the poorly bounded psychodynamics of dysfunctional American political leaders resonate with mass constituencies to promote public policies violating checks and balances specified by the U. S. Constitution. A case study of Andrew Jackson is used as an illustration.

Download the essay from SSRN at the link.

Picturing Crime

The National Endowment for the Humanities is funding the digitization of 30,000 photographs dating from 1914 to 1975 in the archives of the New York Police Department's Department of Records and
Information Services. These photographs will then be available for online viewing. More here from the New York Times and Hyperallergic.

Carl Schmitt, Natural Law, and Political Ontology

Tomas Berkmanas, Vytautas Magnus University, Faculty of Law, has published Natural Law and Political Ontology: A Historico-Philosophical Outline of a Major Human Transformation at 7 Baltic Journal of Law & Politics 119 (2014). Here is the abstract.

The article explores the possibility of comprehending natural law, together with an alternative to the Schmittean political, through an inquiry into the layers of professional philosophy with a special focus on epistemology and analytic philosophy. The starting point of the research is the controversy surrounding the ideas of Carl Schmitt, in which it is unclear what lies at the origin of law and the political — sovereign decision or the situation (Part I)? The latter possibility directs the inquiry to the conceptual field related to natural law and epistemology. Proceeding via both diachronic and synchronic perspectives, the inquiry further analyses what has happened to natural law in modernity, and what its current status is, theorizing both streams of inquiry under the concept of political exile (Part II). The Schmittean political happens to be very much at home in this context, opening up the coherent ideological framework that may be called modern political ontology, which at first appears to camouflage Schmittean antagonistic political praxis (Part III). However, through inquiry into ideas mostly attributable to analytic philosophy (or philosophy of language), this ontology is also shown to function as an ‘anti-onto’-logy — that is, as a direct (i.e. open, not hidden) ideological basis for modern political praxis. The analysis here also discloses the rivalry inside professional philosophy in relation to ‘anti-onto’-logy, the latter finding its disciplinary origin(s) in language itself. It shows that at the level of professional philosophy there is a general trend that could be helpful in the attempt to revive natural law (Part IV).

Download the article from SSRN at the link.

The Warhol Test

Brian L. Frye, University of Kentucky School of Law, has published Andy Warhol's Pantry at 8 Akron Intellectual Property Journal 17 (2014). Here is the abstract.

This Article examines Andy Warhol’s use of food and food products as a metaphor for commerce and consumption. It observes that Warhol’s use of images and marks was often inconsistent with copyright and trademark doctrine, and suggests that the fair use doctrine should incorporate a “Warhol test.”

Download the article from SSRN at the link.

The Reboot Is Out There: Scully and Mulder Will Return

Well, we kept watching our screens, and Mulder and Scully are finally de retour.  David Duchovny and Gillian Anderson will be back for another (shortened) season on the X-Files, as Fox Mulder and Dana Scully, those intrepid G-persons (G-men, surely not!), and chasers after the eternally weird. Fox has ordered six new episodes of the popular show, which aired on that network from 1993 to 2002. Fox also made a 2008 film, The X-Files: I Want to Believe, with Duchovny and Anderson.

Below, a short bibliography on law, popular culture, and The X-Files.


Bellon, Joe, The strange discourse of The X‐Files: What it is, what it does, and what is at stake, 16 Critical Studies in Mass Communication 136 (2009).

Burns, Christy L.,  Erasure: Alienation, Paranoia, and the Loss of Memory in The X-Files, 15 Camera Obscura 194 (2000).

Delasara, Jan, PopLit, PopCult, and The X-Files (McFarland, 2000).

"Deny All Knowledge": Reading the X-Files (David Lavery, Angela Hague, and Marla Cartwright, eds.; Syracuse University Press, 1996).

Hodges, Lacy, Mainstreaming Marginality: Genre, Hybridity, and Postmodernism In the X-Files, in The Essential Science Fiction Television Reader 231 (J. P. Telotte, ed., University Press of Kentucky, 2008).

E. Kubek,  "You Only Expose Your Father": The Imaginary, Voyeurism and the Symbolic Order in The X-Files (London: Faber and Faber, 1996).


Soter, Tom, Investigating Couples: A Critical Analysis of the Thin Man, the Avengers, and the X-Files (McFarland, 2002).

Call for Papers: Yale: Fictional Discourse In Legal Theory and Practice & Law and Fiction

From Erin Sheley:

Call for Papers: Yale: Fictional Discourse in Legal Theory and Practice (Conference Session 1)

After three years of fruitful collaboration, the Yale WHC Working Group “Fictionality: Law. Literature. Science. Interdisciplinary Approaches’ invites presentation proposals (25 minute presentation) for its concluding conference on May 20/21, 2015 at Yale University, New Haven, CT. A selection of  the conference’s papers will also be edited and published.  

The keynote address will be given by  Prof. Peter Brooks (Princeton/Georgetown Law).

The Conference will consist of two whole-day panels: one very specific on the role of Fictional Discourse in Legal Theory and Practice, and a second more open panel on the intersections and relations of Law and Fiction in general (a more traditional law and literature session) that is open to inquiries of all sorts. Each session will also have a session keynote, the speakers (Yale Law School Faculty) are still unconfirmed but will be determined shortly.

This Call for Paper is only for the FIRST SESSION (‘FICTIONAL DISCOURSE IN LEGAL THEORY AND PRACTICE’)- a separate Call for Papers will be posted for Session 2 (“Law and Fiction”).

This whole-day session will address the question of fiction in law from theoretical and dogmatic standpoints. What function and form may have fictions in the legal world? What parts do they play in legal codifications, in trials or as part of legal thinking and legal theory? Questions of the relations of Law to Reality in general are as welcome as more specific enquiries (eg. the nature and purpose of the fictio iuris).

Papers could address:

-          Fictions as part of laws and codes / Fictional quality of Laws, legal examples, etc.

-          Questions of legal semiotics (Truth, Reality of the Law, legal concepts etc.); Law and Language

-          Question of Legal Interpretation and the search for a fixed or variable “truth” (Originalism, etc.)

-          The nature and the reality of the Law

-          Law as Literature

-          Law as Fiction (LaRue, etc.)

-          Fictions as part of trials and investigation (eg. the story of the case as a fictional construct)

-          Fiction(s) as part of legal thinking

-          Fiction(s) as part of legal instruction

-          Relations of Law and Reality

-           The question and nature of the fictio juris/ fictio legis (legal fiction)

-          Historical or theoretical inquiries (e.g. Benthams Theory of Fiction, Locke, Fuller, etc.)

-          Reception and application of philosophical theories /literary theory on truth and fiction in the field of law (John Searle, Richard Rorty, Jacques Derrida, Michael Riffaterre, Niklas Luhmann, Gregory Bateson, Ernst von Glasersfeld, Heinz von Foerster, Roman Ingarden, Gans, Gottfried Gabriel, Marie-Laure Ryan, Wolfgang Iser)

-          Deconstruction and the Law

-          Constructivism and the Law

-          Neuroscience and the Law

Please send a short abstract of maximum 500 words (single spaced) and short academic resume (not more than 5 lines) that need to be both put on one SINGE PAGE, preferably as PDF, to hans.lind@yale.edu The Email Subject needs to be: ‘Session 1 CFP’ followed by your lastname and the title of your proposal (for automatic filtering purposes).

The deadline is March 30, due to the tight timeframe however, early submissions might have a higher chance to get accepted.

Hans Lind, Ph.D.

Email: hans.lind@yale.edu

Call for Papers: Yale: Law and Fiction (Conference Session 2)

After three years of fruitful collaboration, the Yale WHCWG “Fictionality: Law. Literature. Science. Interdisciplinary Approaches’ invites proposals (25 minute presentation) for its concluding conference on May 20/21, 2015 at Yale University, New Haven, CT. A selection of  the conference’s papers will also be edited and published.  

The keynote address will be given by  Prof. Peter Brooks (Princeton/Georgetown Law/Yale).

The Conference will consist of two whole-day sessions: one very specific on the role of Fictional Discourse in Legal Theory and Practice, and a second more open panel on the intersections and relations of Law and Fiction in general (a more traditional law and literature session) that is open to inquiries of all sorts. Each session will also have a session keynote, the speakers and respondents (Yale Law School Faculty/Yale Faculty) are still unconfirmed but will be determined shortly.

This Call for Paper is only for the SECOND SESSION (‘LAW AND FICTION”) - a separate Call for Papers will be posted for Session 1 (“Fictional Discourse in Legal Theory and Practice”).

We welcome a great variety of approaches on the intersection of law and fiction.

We especially would welcome:

-          legal narrative techniques and form in fiction

-          fiction as legal experiment: fictional stories that could serve as legal thought experiments

-          law in literature: what do we learn about the law in novels and drama (its nature, its status, its relation to truth, its value, its discontents)

-          fiction (novels, drama, etc.) as a forum/means to discuss the questions and discontents of the law (e.g. Franz Kafka’s “The Trial”, “Before the Law”, “The judgement”, “The penal Colony”)

-          fictional quality of law, trials, etc. as a topic of storytelling (in novels, drama, etc.)

-          "novelists and poets" as the principal teachers of law (John Wigmore, Benjamin Cardozo; Robert Weisberg)

Please send a short abstract of maximum 500 words (single spaced) and short academic resume (not more than 5 lines) that need to be both put on one SINGE PAGE, preferably as PDF, to hans.lind@yale.edu The Email Subject needs to be: ‘Session 2 CFP’ followed by your lastname and the title of your proposal (for automatic filtering purposes).

The deadline is March 30, due to the tight timeframe however, early submissions might have a higher chance to get accepted.

Hans Lind, Ph.D.

Email: hans.lind@yale.edu

The Law In Fiction: A Conference at the University of Toulon, March 26-27, 2015

 

Coming up this week at the University of Toulon:

Le droit dans les fictions: classiques, romans graphiques romans/ The law in fiction: Classic novels, graphic novels

Speakers: Slim Laghmani, Laure Leveque, Julien Martin, Caroline Regad-Albertin, Alexis Le Quinio, Jahiel Ruffier-Merray, Franck Rennuci, and Jose Calvo Gonzales.

Historians and Legal Writing

Douglas E. Abrams of the University of Missouri School of Law directs us to writers in other disciplines, including historian Barbara Tuchman, for examples of clarity and precision, in his columns in Precedent, the Missouri Bar's quarterly magazine. See here and here.

Nuremberg's Legacy

Matisiko Samuel Collins has published The Anatomy of the Nuremberg Legacy: Strengths, Flaws and Relevancy Today. Here is the abstract.

Seventy years ago the allied powers took on a bold and rather radical move at the time to conduct a complex extraordinary legal experiment that would impact future generations. For the first time ever in the history of humanity an international tribunal was established to try individuals for war crimes, crimes against humanity and crimes against peace. During that time the notion that an international tribunal could bring perpetrators to account for their crimes within an international context was unheard of and to a certain extent seemed rather utopian and contrary to ordinary practice.

However the presence of international criminal tribunals today is not strange despite Nuremberg’s shortcomings there is no doubt that its successes are measurable. Nuremberg set pace for the legal framework of international criminal law, one would argue it was the birth certificate of international criminal law today. Nuremberg’s least disputed contribution today is in the substantive law in the Nuremberg principles that are universally accepted. The Nuremberg principles managed to establish individual criminal responsibility and led to the demise of the strict application to the doctrine of state sovereignty. The principle of no immunity for heads of state is of great relevancy for the peace and security of the international community, in recent times we have witnessed many heads of states appear before international criminal tribunal to answer to charges of gross human rights violations committed against their civilian population.

Irrespective of the successes, flaws and legacy of the Nuremberg Trial, the Trial was a milestone that needs to be emphasised , Nuremberg was, is and will be of great relevancy to international criminal law in the future and there is doubt to a large extent its relevancy will always play key role in shaping the future of international criminal law. Nuremberg will still have a “lex ferenda” impact on the application and enforcement of international criminal especially when it comes to the subject of “the crime of aggression”.

Download the paper from SSRN at the link.