New Issue of NoFo Available

Newly available: issue 12 of NoFo. See the table of contents below.

 

 

Editors-in-Chief:
Julen Etxabe &
Mónica López Lerma

Editorial

ARTICLES

Semantic Authority, Legal Change and the Dynamics of International Law

Ingo Venzke

Microfinances and Legal Pluralism: A Case Study of the

Community Development Banks in Brazil

Vivian M. Ferreira

Post-1994 Jurisprudence and South African Coming of Age Stories

Karin Van Marle

On Close Reading the Treaty of Waitangi: An Encounter with Joseph Vining

Richard Dawson

Bollywood’s Law: Collective Memory and Cinematic Justice in the New India

Oishik Sircar

BOOK REVIEWS

Marianne Constable: Our Word is Our Bond. How Legal Speech Acts.

Stanford University Press, Stanford 2014.

Julen Etxabe

Roberta Rosenthal Kwall: The Myth of the Cultural Jew. Culture and Law in Jewish Tradition.

Oxford University Press, Oxford 2015.

Susan P. Liemer

Jeremy Webber: The Constitution of Canada. A Contextual Analysis.

Hart Publishing, Oxford 2015.

John Erik Fossum

Play Shakespeare-Connect

Using JSTOR. "Pick a play. Click a line. Instantly see articles on JSTOR that reference the line." This project is a cooperative one between JSTOR and the Folger Shakepeare Library.

I tried it; I didn't think it was entirely intuitive. You still have to figure out how to "pick" the play from a drop-down menu by selecting the act and scene, then highlighting, then selecting not the line itself but the number of the line. Then you will get a result. The system will show you the first page of each article unless you are logged in through your academic institution or another institution that gives you JSTOR access. Otherwise, you'll need to log in to see the entire article. However, you can get a free Register and Read account to get access to many of the articles. The number of plays indexed right now is limited to

• A Midsummer Night's Dream
• As you Like it
• Hamlet
• Henry V
• Julius Caesar
• King Lear
• Macbeth
• Othello
• Romeo and Juliet
• The Taming of the Shrew
• The Tempest
• Twelfth Night

The list may be extended in future. Still, a nice way to compile a list of materials that cite lines from the Bard and how we have interpreted him over the years.  The project creators also invite comments.

A CFP for a Conference on Politics in Comics

The Comics Forum has issued a Call for Papers for its Conference to be held November 12-13, 2015 at the Leeds Central Library, Leeds (UK). The subject this year is Politics: A Conference on Comics. As part of this year’s Comics Forum conference, Applied Comics Network will lead a session on the politics of comics that communicate specific information, and the use of comics in education. For this session in particular, ACN welcomes proposals from both comics creators and comics scholars. ACN is a network for anyone who works with comics/graphic narrative and information.

More here from the Comics Forum.  

Via Nick Sousanis (on Twitter).

The Law and Economics of Gender

ICYMI: Joyce Warren, Queens College, City University of New York, has published Women, Money, and the Law, with the University of Iowa Press (2005). Here is a description of the contents from the publisher's website.

Women, Money, and the Law is one of the most sophisticated, complex, and interesting studies to date of the economics of gender. Through close readings of court documents and literature, Joyce Warren offers us multiple ways—some expected, some utterly surprising—of understanding the financial circumstances of a range of women in the 19th century.”—Cathy N. Davidson, Ruth F. DeVarney Professor of English and vice provost for interdisciplinary studies, Duke University, author of Revolution and the Word: The Rise of the Novel in America, and co-editor of No More Separate Spheres! A Next Wave American Studies Reader
Did 19th-century American women have money of their own? To answer this question, Women, Money, and the Law looks at the public and private stories of individual women within the context of American culture, assessing how legal and cultural traditions affected women's lives, particularly with respect to class and racial differences, and analyzing the ways in which women were involved in economic matters.
Joyce Warren has uncovered a vast, untapped archive of legal documents from the New York Supreme Court that had been expunged from the official record. By exploring hundreds of court cases involving women litigants between 1845 and 1875—women whose stories had, in effect, been erased from history—and by studying the lives and works of a wide selection of 19th-century women writers, Warren has found convincing evidence of women's involvement with money.
The court cases show that in spite of the most egregious gender restrictions of law and custom, many 19th-century women lived independently, coping with the legal and economic restraints of their culture while making money for themselves and often for their families as well. They managed their lives and their money with courage and tenacity and fractured constructed gender identities by their lived experience. Many women writers, even when they did not publicly advocate economic independence for women, supported themselves and their families throughout their writing careers and in their fiction portrayed the importance of money in women's lives. Women from all backgrounds—some defeated through ignorance and placidity, others as ruthless and callous as the most hardened businessmen—were in fact very much a part of the money economy.
Together, the evidence of the court cases and the writers runs counter to the official narrative, which scripted women as economically dependent and financially uninvolved. Warren provides an illuminating counternarrative that significantly questions contemporary assumptions about the lives of 19th-century women. Women, Money, and the Law is an important corrective to the traditional view and will fascinate scholars and students in women's studies, literary studies, and legal history as well as the general reader.

Surveillance and Fiction

Sam Frank discusses how surveillance leads to "noveliz[ation of] our lives." He suggests turning to literature to understand this phenomenon--specifically to novels such as Joshua Cohen's Book of Numbers, Dave Eggers' The Circle, or the classic The Trial, by Franz Kafka. More here at The Intercept.

The Popularity of the World's First Consulting Detective... In Charts!

Sherlock Holmes through the data, by Adam Frost and James Kynvin.

Does statistical evidence takes the fun out of it for you?

BTW, this isn't the first time Messrs Frost and Kynvin have sussed out data to try to figure out the whys of events. Here's their take on the likelihood of winning the Mann Booker Prize.

And here is how Mr. Frost, Mr. Kynvin, and Jamie Lenman diagram Edgar Allan Poe's macabre death scenes.  Fun for the whole family!

"I Dissent": Justice Scalia's Opinions Set To Music

The rock band Coheed and Cambria sets some of Antonin Scalia's more memorable words and lines from two recent important decisions to music here (via Funny or Die)--"jiggery-pokery," "applesauce," "I dissent," and my favorite, "The world does not expect logic [and precision] in poetry" (take that, bards, rhymers, and versifiers!)

For the opinions: See King v. Burwell and Obergefell v. Hodges

For the critique: Oh, you know whom to ask...TNH.

The Origins of Forensic Science

The BBC gives us a short course in the history of forensic science here. It all started with the Greeks and Romans; the word "forensic" is Latin for "open court," according to the webpage.  See also the Oxford Dictionaries webpage, which gives the origin as the Latin forensis, and the translation as "open court, public."

The Right To Freedom of Assembly

Orsolya Salait has published The Right to Freedom of Assembly: A Comparative Study (Hart Publishing, 2015). Here is a description of the contents from the publisher's website.

Assembly is natural to people, and it reflects and shapes cultural values. People do it for many reasons: noble or base, dangerous or innocent, social or political, strategic or communicative. But, despite the general significance of assembly, the right to freedom of assembly was often subjugated to the right to freedom of expression, both in courts and in legal scholarship. Regarding freedom of assembly, this comparative study examines five influential jurisdictions in Western human rights jurisprudence and reveals the similarities and inconsistencies between them. It also exposes their shortcomings, such as the United States' narrowly-focused content neutrality and public forum, the UK's blanket bans based on intangible and distant harm, Germany's preventative restrictions and viewpoint discrimination, and France's uncertain status and opaque judicial reasoning. Such divergence among European States hinders the development of a consistent assembly doctrine by the European Court of Human Rights. The book argues that it is time for jurisprudence to recognize values specific to freedom of assembly and move away from a narrow focus on expression.

The War On the Big Screen

Suzanne Broderick has published Real War vs. Reel War: Veterans, Hollywood, and WWII (Rowman & Littlefield, 2015). The hardcover is $30, the ebook is $29.99. Here's a description of the contents from the publisher's website.

World War II has been the subject of hundreds, if not thousands, of films produced in the United States alone. From training camp scenes in See Here, Private Hargrove to images of brutal combat in Saving Private Ryan, filmmakers have been tasked with replicating pivotal moments in the war. But sometimes story lines and dramatic manipulations of audiences have led to less-than-faithful re-creations of what men and women have endured during times of conflict. 

In Real War vs. Reel War: Veterans, Hollywood, and World WarII, Suzanne Broderick looks at how on-screen portrayals hold up against wartime experiences of actual combatants—soldiers, sailors, pilots, code talkers, and prisoners of war. In addition, two women—real-life “Rosie the Riveters”—compare depictions of the homefront with their experiences during the war. These members of the Greatest Generation share personal memories and offer commentary on the films that have sought to capture what it was really like. Among the films discussed in this book are such classics as Battleground, Twelve O’Clock High, The Best Years of Our Lives, Since You Went Away, The Sands of Iwo Jima, and The Great Escape, as well as more contemporary films such as Swing Shift and Windtalkers.

By providing a “human” look at the military, the war effort, and how such people and events were depicted on screen, Real War vs. Reel War makes a unique contribution to the conversation about Hollywood’s role in shaping history. This book will appeal to historians, cultural critics, and anyone interested in war cinema.

Other titles of interest from the publisher in the same category include Ralph Donald and Karen MacDonald, Women in War Films: From Helpless Heroine to G.I. Jane (2014) and Bryn Upton, Hollywood and the End of the Cold War: Signs of Cinematic Change (2014).

The Hong Kong Legal Regime and Montesquieu's Theory of the Separation of Powers

Danny Gittings, University of Hong Kong, College of Humanities and Law, School of Professional and Continuing Education; University of Hong Kong Faculty of Law, has published Conflict Over 'Montesquieu's Doctrine' on Separation of Powers. Here is the abstract.

Many aspects of the classic separation of powers doctrine of a tripartite division between executive, legislature and judiciary, which is commonly attributed to Baron Montesquieu, have been the subject of sustained academic criticism in recent decades.

This article, which is part of the author’s PhD research into separation of powers in Hong Kong, reviews those criticisms as well as the quantitative analysis in this area.

It concludes that, even as criticism of the doctrine has become much sharper among some American scholars, there seem to be signs of a more sympathetic reappraisal in some quarters in the United Kingdom.

Download the article from SSRN at the link.

Senior Research Fellowships Available at All Souls College

All Souls College, Oxford University, has posted the following positions:

All Souls College
Senior Research Fellowships in History, Law, and Philosophy

All Souls College invites applications for up to two Senior Research Fellowships tenable from 1 October 2016 (or date to be agreed): in History (from c. AD 500), Law and Philosophy.

DESCRIPTION/QUALIFICATIONS: A Senior Research Fellowship is of comparable academic standing to a statutory Professorship in the University of Oxford. Applicants are expected to have a correspondingly distinguished record of achievement in research and those elected may apply within the University for the title of Professor.

SALARY: British Pound 91,621 to 100,071 (depending on how much University lecturing the Fellow undertakes and inclusive of the British Pound 6,177 Housing Allowance payable to eligible Fellows) and generous other benefits.

APPLICATIONS/FURTHER INFORMATION: For further particulars and to complete the online application, see the College's website: http://www.all-souls.ox.ac.uk/senior-research-fellowships

CLOSING DATES: 12 noon, Friday, 18 September 2015 - applications; Friday, 25 September - references.
Meetings with Fellows: Friday and Saturday, 12/13 February 2016 and Friday and Saturday, 19/20 February 2016.

All Souls College is an equal opportunities employer and particularly encourages applications from women and those with a legally protected characteristic.

Harry Houdini and Arthur Conan Doyle: A New Series Heads To Television

From the Hollywood Reporter: 

Michael Weston, who appeared in the series House, and Stephen Mangan will star in the new series Houdini and Doyle for Fox, which is set for 2016. The series will dramatize the relationship between the iconic magician/escapotologist Harry Houdini (born Erich Weisz), to be played by Weston, who devoted the last years of his life to debunking Spiritualism and the author of the Sherlock Holmes stories, Sir Arthur Conan Doyle, to be played by Mangan, who believed fervently in Spiritualist doctrine. The two eventually fell out over Doyle's unwillingness to believe Houdini's statements that he was not psychic and Houdini's repeated rejections of Doyle's proffered evidence of the paranormal.

Read more about Houdini and Doyle's relationship here, or in Massimo Polidoro, Final Seance: The Strange Friendship Between Houdini and Conan Doyle (Prometheus Books, 2001). 

Legal Argument and International Law

Elgar Publishing has issued Epistemic Forces in International Law: Foundational Doctrines and Techniques of International Legal Argumentation by Jean d'Aspremont. Here is a description of the book's contents from the publisher's website.

Epistemic Forces in International Law presents a comprehensive examination of the methodological choices made by international lawyers and provides a discerning insight into the ways in which lawyers shape their arguments to secure validation within the international legal community. International law is defined in this book as an argumentative practice, articulated around a set of foundational doctrines and deployed through rhetorical techniques. Taking an original approach, Jean d'Aspremont focuses on five key foundational doctrines of international legal theory and five key techniques deployed in international legal argumentation. He argues that mastering these foundational principles and argumentative procedures shapes the discourse of international lawyers as much as these discourses shape these foundational doctrines and techniques of legal argumentation. This book is a pertinent contribution to the methodology and theory of international law, illustrating the rationale of the choices made by lawyers in the doctrines of statehood, sources, law-making, international organizations and effectivity. This accessible reflection on the conceptual, theoretical and methodological perspectives of international law will be a salient point of reference for legal academics, researchers and practitioners alike.

The Legal Fight Over "Fanny Hill"

Simon Stern, University of Toronto Faculty of Law, is publishing Fanny Hill and the 'Laws of Decency': Investigating Obscenity in the Mid-Eighteenth Century in volume 40 of Eighteenth-Century Life (2016). Here is the abstract.

This essay discusses John Cleland's novel The Memoirs of a Woman of Pleasure (1748/9, better known as Fanny Hill), in the context of eighteenth-century obscenity law and the law of search and seizure. To explain why obscenity could have been treated as a criminal offense at all, the essay discusses prosecutions against writers and actors from the later seventeenth century through Cleland's time, showing how the criminality of the offense was taken for granted (circa 1670-1700), then rejected (in 1708), and then rationalized (in 1727). Cleland's novel, notable for resorting to metaphorical and euphemistic language so as to avoid "rank words," was nevertheless easily covered by the rationale offered in Curll (1727), but his case was never brought to trial. While some have thought that this circumstance is mysterious and requires explanation, in fact obscene works were rarely prosecuted at this time, and the decision even to begin proceedings against Cleland is more notable than the decision not to go to trial. Cleland implied, in some of his letters, that he believed his circumlocutory language should have excused him from prosecution, but his stronger argument would have involved the process that led to his arrest: the investigation proceeded by means of a general warrant, a device that would be criticized in the litigation after the 1763 Wilkes prosecution, which in turn influenced the prohibition against unreasonable searches and seizures in the Fourth Amendment to the US Constitution. Along the way, the essay discusses several famous but inaccurate claims about the prosecution of Cleland and his publishers (e.g., that Cleland was paid to stop writing obscene novels, and that his publishers made a fortune from the book), and also includes a list of eighteenth-century editions of Fanny Hill.

Download the article from SSRN at the link.

How To Win Friends and Influence People--When You're a Judicial Opinion

Michael J. Nelson, Pennsylvania State University, Department of Political Science, and Rachael K. Hinkle, University at Buffalo, have published Crafting the Law: How Opinion Content Influences Legal Development. Here is the abstract.

Why are some judicial opinions widely cited while others languish in disuse? We theorize that both efficiency and persuasiveness structure the effect an opinion has on legal development. Precedents that are both unanimous and well-grounded in the law have greater persuasive value while citation to precedents that are easier to read allows a judge to craft an opinion more efficiently. We estimate the effect of an opinion's readability, the number of footnotes it contains, its use of precedent, and whether it contains a dissenting opinion on the number of times each year the opinion is cited and its vitality in the United States Supreme Court, the precedent's own court, the precedent's sister courts, the precedent's directly subordinate courts, and all remaining state and federal courts. We thus track vertical influence both up and down the judicial hierarchy and evaluate horizontal influence both within the precedent's jurisdiction and across jurisdictional lines.

Download the article from SSRN at the link.

The Relevance of Literature to Social Science (and Law)

Dustin A. Zacks, King, Nieves & Zacks, PLLC, has published A Response to Epstein: Honoré De Balzac's Rise and Fall of Cesar Birotteau and Literature's Relevance to Social Science at 36 Whittier Law Review 283 (2015). Here is the abstract.

Richard Epstein has questioned whether the literature is useful to the social sciences. In his 2002 remarks considering George Orwell, Epstein rails against the utility of consulting literary accounts as authority to establish, both factually and scientifically, any specific state of affairs. Rather, he argues that authors tend to overgeneralize from their personal experiences that literary predictiveness is fatally non-falsifiable, and that literature, accordingly, cannot be trusted as a source of authority for lawyers or social scientists. Although several of Epstein’s arguments are well-founded and may be appropriate in regards to certain authors, the works of Honoré de Balzac may disprove the universality of Epstein’s claims. Balzac’s compendium of dozens of novels and short stories known as the Comedie Humaine, documenting every conceivable aspect of life under the French Restoration, provides relevant points of interest to legal scholars, particularly in light of Balzac’s training as a lawyer. Balzac’s tale of a bankrupt merchant, The Rise and Fall of Cesar Birotteau, is a uniquely valuable work to emphasize the value of literature to legal scholars. Birotteau’s encounters with the French bankruptcy process paint a historically accurate picture of the state of French law during the Restoration. Perhaps even more noteworthy than its value as a primer of legal history, though, is Balzac’s precise description of the social and physical effects of debt and bankruptcy. These empirically verified observations in narrative fiction directly contradict Epstein’s insistence that literature should not necessarily be considered accurate, normative, or otherwise relevant to legal theory. This article’s case study of Balzac’s Cesar Birotteau demonstrates the accuracy of his French bankruptcy depictions and of his references to social and physical effects of bankruptcy that have been borne out by empirical literature. Furthermore, Balzac’s dissections of each side of bankruptcy debates foreshadowed questions that scholars continue to raise today. In this manner, Balzac’s forceful novel stands in direct contradiction to Epstein’s arguments that literature cannot, or perhaps should not, be trusted to contribute to legal scholarship and debates.

Download the article from SSRN at the link.

The Humanities Still Matter, Especially in Legal Education

Bernadette A. Meyler, Stanford Law School, is publishing Law, Literature, and History: The Love Triangle in the UC Irvine Law Review. Here is the abstract.

A decade ago, at the end of her characteristically astute provocation of law and literature scholars in “Law, Literature, and the Vanishing Real,” Julie Peters suggested moving beyond the law/literature dichotomy into both “law, culture, and the humanities” and global “disciplinary tourism.” By silently glossing over “literature” in favor of the broader terms “culture” or the “humanities,” new formulations of the area of study might, she indicated, help to dispel the “interdisciplinary illusion” fueling the opposition between and relation of law and literature, dispensing with the notion shared by scholars of both law and literature that the “real” is located just over the methodological divide between the fields. Peters’ essay valuably rejected the binary that appears in far too many versions of law and literature scholarship. Its aspiration to put aside disciplinary boundaries among sectors of the humanities in studying “law, culture, and the humanities” or “law and the humanities” tout court has not, however, proved entirely feasible, nor is it necessarily desirable.

As those familiar with “law and society” know, the turn toward a broader category — like culture, or the humanities, or society — may not remain unvexed, as questions arise respecting the unity of the umbrella term and its framing in opposition to law. Moreover, from within the parameters of law, and particularly those of legal pedagogy, “law and the humanities” designates not precisely a decomposition of the boundaries between law and its outside, but a gesture toward one form of law’s outside, the humanistic, as opposed generally to the social sciences. Despite the proliferation of the “law and” fields, many — including law and the humanities — still appear from the vantage point of legal pedagogy as a superficial carapace that can be shed when financial exigencies press law schools to cut costs and reduce tuition.

This Article aims to demonstrate the centrality of the humanities to the core of law school pedagogy today. At the same time, by focusing on two areas within the humanities — literature and history — it tries to show how disciplines still matter, both as engines and impediments. Examining the shifting passions that bind law, literature, and history to each other, it foregrounds the dynamic quality of disciplinary relations as the attraction of fields for each other waxes and wanes. This dynamism itself advances the possibilities for new births of knowledge. Although unstable and of unknown fate, the love triangle of law, literature, and history continues to spawn fertile offspring.

Download the article from SSRN at the link.

Louisiana State University Professor Dies In Tragic Accident

Louisiana State University Professor of English Elisabeth "Lisi" Oliver died in a tragic accident earlier this month while walking along a rural road in East Feliciana Parish, Louisiana, on June 7, 2015. Dr. Oliver was a much beloved member of the LSU Department of English and had recently received the title of Distinguished Research Master. Dr. Oliver was known for her research and publications in the area of literature, law, and linguistics and for her devotion to teaching. Her publications included The Beginnings of English Law (University of Toronto Press, 2002), The Body Legal in Barbarian Law (University of Toronto Press, 2011), "Protecting the Body in early Anglo-Saxon England," in Peace and Protection in the Medieval West 60-77 (Pontifical Institute for Medieval Studies, 2009), "Royal and Ecclesiastical Law in Seven-Century Kent," in Essays in memory of Patrick Wormald 97-114 (Ashgate Press, 2009), and "Documentary Culture and the Making of English Law," in Cambridge History of Early Medieval English Literature, 500-1150 599-529 (2012). See a list of her publications here.


The University will hold a memorial service to commemorate her life on June 27 at 3 p.m. at the LSU Faculty Club.

Below are excerpts from a message published on the LSU College of Humanities and Social Sciences website.

The LSU community is mourning the loss of Elisabeth “Lisi” Oliver, Alumni Professor, who was tragically killed June 7 in an accident in East Feliciana Parish.

“Lisi was larger than life, and her loss is inconceivable. She was an intellectual force among scholars, nationally and internationally,” said Dean of Humanities & Social Sciences Stacia Haynie.  “She was beloved by students, faculty and staff.”

Oliver joined the LSU faculty in 1996, a year after she received her doctorate from Harvard University.  In 2011 she was named as the Greater Houston Alumni Professor and most recently was named as a Distinguished Research Master in spring of 2015, which is among the highest distinctions awarded for faculty research.  

 ...

Oliver was on the board of the Early English Laws Project, an international collaboration to re-edit the laws of early English, supported by the Arts and Humanities Research Council of Great Britain.

...

A memorial service to honor the life of Elisabeth “Lisi" Oliver will be held on Saturday, June 27 at 3:00 pm at the LSU Faculty Club. The service will be followed by an open house.

Because not everyone will be able to attend the service during the summer, the English department plans to have a ceremony memorializing Lisi in the fall after school has started.

In the next few days the Oliver family will announce a charity to which you can make contributions in Lisi’s name.

I knew Lisi; she was funny, smart, and insightful. Her death is a great shock and her loss is incalculable.

But What Did I Say?

Chi Luu discusses how innocuous-sounding words or phrases can actually be highly offensive language, here, for JSTOR Daily.

Crowdsourcing Course Materials On Breaking News

Professor Chad Williams, like Professor Marcia Chatelain before him, decided to use social media (specifically Twitter), to crowdsource a syllabus on a breaking news event. Professor Chatelain, of Georgetown's Department of History, had used the Twitter hashtag of #FergusonSyllabus last year to crowdsource a syllabus on the deadly shooting of Michael Brown in Ferguson, Missouri. Professor Williams, of Brandeis University, crowdsourced a syllabus on the recent murders of nine worshippers at the historic Emanuel African Methodist Episcopal Church, in Charleston, South Carolina, using the #CharlestonShooting hashtag.  Great use of social media, particularly Twitter, to to encourage thought, get assistance from colleagues, and compile useful materials quickly. More here on  Professor Williams' project from the Chronicle of Higher Education, here on Professor Chatelain's project from the Atlantic.

Freedom of Speech, Freedom of Religion, and State Regulation of Fortune Telling In the U.S. Since 1945

Christine A. Corcos, Louisiana State University Law Center, has published Seeing it Coming Since 1945: State Bans and Regulations of 'Crafty Sciences' Speech and Activity at 37 T. Jefferson L. Rev. 39 (2014). Here is the abstract.

After the Supreme Court’s decision in United States v. Ballard, Spiritualism’s adherents, like other members of minority belief systems, could qualify for the same First Amendment protections as members of mainstream religions. While Spiritualists could thus celebrate a certain level of victory, they still faced intolerance and outright persecution from some government officials and state legislatures who continued to believe that common Spiritualist practices, which included communication with the dead, divination, and in some cases, faith healing, were simply shams for frauds perpetrated on members of the public who were grieving over the loss of loved ones. In their grief, members of the public sought out Spiritualist practitioners who convinced them that their deceased relatives and friends could speak to them through Spiritualist intervention, and often with the assistance of donations to a Spiritualist church. In many cases, Spiritualist ministers did (and still do) offer assistance in the form of messages from loved ones to assist in guidance for the future.

Some prosecutors and police did not see such messages as legitimate spiritual guidance or genuine prophecy. They still labeled such communications as fortune telling. Under “rogue and vagabond” statutes, a type of disorderly person legislation enacted as early as the 1790s in the United States, fortune telling and like activities were considered fraudulent activity, not religious ministrations. The statutes defined those who carried them out as crafty sciences practitioners or “rogues and vagabonds,” not members of the clergy. However, both the ruling in Ballard and ministerial exemptions that state legislatures carved out of statutes before and after Ballard protected clergy from accusations of fraud. Beginning early in the twentieth century, but in growing numbers after the Second World War, members of minority religions could take advantage of ministerial exemptions to protect themselves from a charge of fraud, even if their activities resembled “crafty sciences practices,” if they could convince the police or the courts that they were clergy and the practices they followed were recognized by their churches. However, crafty sciences practitioners who were not members of minority religions had more difficulty in escaping fraud accusations. Even if they spoke to willing clients, even if they did not request payment for their services (and some did not, although they accepted donations), and whether they performed their services in entertainment venues or in storefronts, they ran the risk that the police might arrest them and prosecutors might bring criminal charges against them. State statutes and local ordinances that banned fortune telling, palmistry, divination, phrenology, or other crafty sciences practices offered no defense because the First Amendment did not protect such speech. Law enforcement and prosecutors tended to bring fewer complaints of outright fraud against Spiritualists after 1945, and shifted their attention to claims of fraud against others who engaged in the same kinds of practices, including fortune tellers, and by extension, palmists, clairvoyants, and astrologers. At the same time, other minority religious practitioners, emboldened by the success of the Spiritualists as well as other non-traditional groups, began to argue that they too should be able to claim the protections of the First Amendment Free Exercise Clause for practices that included divination, prophesy, and other “crafty sciences” if those practices were part of religious rituals. This Article examines those claims and government responses, in the form of bans and regulations such as zoning and licensing, and tests whether these responses are constitutional under the First Amendment.

Download the article from SSRN at the link.

Religious Expression and Courtroom Oaths

Frederick B. Jonassen, Barry University School of Law, is publishing 'So Help Me?': Religious Expression and Artifacts in the Oath of Office and the Courtroom Oath in volume 12 of the Cardozo Public Law, Policy and Ethics Journal (Spring 2014). Here is the abstract.

For the purpose of taking an oath, the use of the Christian Bible, which includes both the Old Testament (the Jewish scriptures) and the New Testament (the scriptures relating to Jesus Christ), or the use of the New Testament alone, has been traditional and commonplace in Western culture because Christianity was historically the West's predominant religion. However, as non-Christians were permitted to participate more fully in legal proceedings and to work as government officials, the use of other religious texts or symbols, or the non-use of any religious artifact at all, has become more common. Although it is argued that non-Christians could swear on the Bible as the source of the values that animate the American government, the imposition of the Bible as the only means of taking an oath is unacceptable. Such a rule would be a religious test, specifically prohibited by the Constitution, as well as a violation of the Free Exercise and Establishment Clause.

But aside from this, for many, an oath is a personal commitment to tell the truth or keep a promise, so it is appropriate that the oath-taker not be coerced into professing a religious belief she does not have. For most people, the oath long ago became a perfunctory form of asserting the truth of a statement or promise with little regard for the religious text that supported the truth of the declaration. Nevertheless, the Biblical text that accompanies the oath creates a difficulty for the oath-taker who places no credence in Christianity. The act of swearing upon the religious text conveys the appearance of a personal faith or belief in the religion represented by the text. For the individual who does not believe in Biblical revelation, the deception is hardly consistent with a ceremony meant to represent a commitment to truth telling. Indeed, any commitment to be truthful based on a religious belief that one does not hold would appear to be of little value. In the times that required oaths to be sworn upon the Bible, conscientious non-Christians, as well as Christians with religious objections to oath taking, refused to take an oath on the Christian scriptures, and as a result were effectively excluded from legal procedures or public offices.

This article reviews the history of the struggle to remove the obligation to swear an oath with the Bible or with any religious text or artifact. In view of that history, the article concludes that the freedom to choose from a variety of religious or secular texts is consistent with arguments that favored the adoption of the No Religious Test Clause of the Constitution at the ratifying conventions of the states. However, the acceptance of this freedom of choice and diversity raises issues of jury bias in regard to courtroom oaths and of political manipulation by religious symbols in regard to oaths of office. The article concludes that while religious choice may be appropriate for the oath of office, such choice for the oaths of witnesses and jurors is likely to create difficulties that necessitate the complete removal of religious artifacts and expression from the courtroom oath.

Download the article from SSRN at the link.

From Court To the Opera

Among the projects incoming Houston Bar Association President Laura Gibson has slated for her term is an opera fundraiser for the Houston Volunteer Lawyers. The opera, based on the case of a free woman of color named Emeline, will be performed by Houston Grand Opera next year. It is currently being composed. Emeline, with the assistance of a founder of the Houston Bar Association named Peter Gray, defended her freedom against a man named Jesse Bolls, who attempted to claim ownership of her.  Mr. Gray later founded the law firm of what is now Baker, Botts, which is underwriting the composition of the opera based on the court case of Emeline v. Bolls.

Judge Mark Davidson retells the court case here for The Houston Lawyer; more here from the Houston Chronicle.

More about Ms. Gibson's plans for her HBA tenure here from the Texas Lawyer.

Comics and Law

Marc Greenberg's  Comic Art, Creativity and the Law (Elgar, 2014), will be published in paperback in August 2015 and will be priced at $29.95 (discounted to $23.96 at the publisher's website). The author is Professor of Law, Golden Gate University School of Law.  Here's a description of the contents from the publisher's website.

The characters and stories found in comic art play a dominant role in contemporary popular culture throughout the world. In this first-of-its-kind work, Comic Art, Creativity and the Law examines how law and legal doctrine shapes the creative process as applied to comic art. The book examines the impact of contract law, copyright law (including termination rights, parody and ownership of characters), tax law and obscenity law has on the creative process. It considers how these laws enhance and constrain the process of creating comic art by examining the effect their often inconsistent and incoherent application has had on the lives of creators, retailers and readers of comic art. It uniquely explains the disparate results in two key comic book parody cases, the Winter Brothers case and the Air Pirates case, offering an explanation for the seemingly inconsistent results in those cases. Finally, it offers a detailed discussion and analysis of the history and operation of the 'work for hire' doctrine in copyright law and its effect on comic art creators.Designed for academics, practitioners, students and fans of comic art, the book offers proposals for changes in those laws that constrain the creative process, as well as a glimpse into the future of comic art and the law.

Sovereign Debt States and Constitutional Inquiry In Europe

Claire Kilpatrick, European University Institute Department of Law, has published Constitutions, Social Rights and Sovereign Debt States in Europe: A Challenging New Area of Constitutional Inquiry as EUI Department of Law Research Paper No. 2015/34. Here is the abstract.

Constitutions, social rights and sovereign debt states in Europe is a rich new seam of constitutional inquiry that challenges existing constitutional scholarship in various ways. I make five claims about how it expands and challenges existing constitutional and EU scholarship. 1. It is new terrain for constitutional social scholarship. 2. Middle-class and public sector entitlements are a deeply problematic area for constitutional social scholarship. 3. Juristocracy charges cannot be the same in times of EU sovereign debt. 4. It contributes in distinctive ways to questions of the existence of a structured EU, and a shared European, constitutional space. 5. Linking constitutional crisis with euro-crisis and social rights is an important project: Hungary under Orbán as an example.

Download the article from SSRN at the link.

The Supreme Court and Comic Books

In which the Justices quote Spiderman:

What we can decide, we can undecide. But stare decisis teaches that we should exercise that authority sparingly.  Cf. S. Lee and S. Ditko, Amazing Fantasy No. 15: “Spider-Man,” p. 13 (1962) (“[I]n this world, with great power there must also come—great responsibility”). Finding many reasons for staying the stare decisis course and no “special justification” for departing from it, we decline Kimble’s invitation to overrule Brulotte.

Kagan, J., for the Court (in Kimble, et al., v. Marvel Entertainment, LLC, decided June 21, 2015).

Bazinga! (to quote Sheldon Cooper)

Tip of the beret to Jack of Kent.

Update: see also discussion of Justice Kagan's Spiderman jokes here, by Matthew Yglesias (Vox).

The International Legal Academic and Her Responsibility

Gleider I. Hernandez, Durham University, is publishing The Responsibility of the International Legal Academic: Situating the Grammarian within the 'Invisible College' in International Law as a Profession (A. Nollkaemper, W. Werner,J. d'Aspremont and T. Gazzini, eds.; Cambridge University Press, 2016). Here is the abstract.

It has been said that it is narcissistic for an international legal scholar to reflect on the role of the academic within the international legal profession. Yet international law is simultaneously constituted by and constitutes the community of international lawyers who engage with it. The relationship is ‘co-constitutive’, meaning on the one hand that it is the community of international lawyers who come to create, interpret and render operative the international law with which they engage in their professional practice; and simultaneously, that certain argumentative rules pervade the international legal discipline, generating background ideas that come to constitute, or at least structure, the professional vocabularies of all international lawyers.

This Chapter presents some reflections on the specific function of the international legal academic, and how our teachings come to structure the international law profession more generally, consider the extent to which the metaphor of a grammar common to international lawyers, which enables the creation and justifies the validity of international legal rules, constitutes the role of the international legal academic, using the metaphor of the grammarian. It will explore the international legal profession as a wider ‘community’ of practice, bound by interpretive canons or even a shared episteme rather than by a mere shared object of engagement. It will engage with so-called ‘activist’ scholarship that is mindful of its law-creative (normative) potential and seeks to take full advantage of it, acknowledge the social reality of international legal scholars being in constant engagement with practitioners, governmental officials, international judges. This Chapter will conclude with a few thoughts on how Koskenniemi’s famous call for a ‘culture of formalism’ can serve to acknowledge that the use of the international legal vocabulary is fundamentally a choice. Understanding the parameters of that choice can, above all, better understand and situate the role of the international legal scholar within the wider phenomenon of international law, and give rise to a wider ethic of responsibility on the part of international lawyers.

Download the essay from SSRN at the link.

Invitations To Apply: Visiting Research Chair at McGill University

 Announcement of a Visiting Research Chair available at McGill University

Applications are invited for a one-semester or full-year Visiting Research Chair in Constitutional and Political Theory in academic year 2016-17. This fellowship for US citizens includes a $US 25,000 stipend with no teaching responsibilities.

Hosted in McGill's Research Group on Constitutional Studies ( http://www.mcgill.ca/rgcs ) and Department of Political Science (http://www.mcgill.ca/politicalscience ), this award is open to established or emerging scholars in political theory as well as legal theory or political philosophy, and is open with respect to methodology in those fields.  The Chair will pursue research in constitutionalism and constitutional theory broadly construed.  The ability to engage with scholars and students across methodologies—normative, empirical, intellectual-historical, jurisprudential, and formal, for example— is more important that particular areas of emphasis.

Sample areas of interest include: normative analyses of fundamental rights and of such basic constitutional structures as the separation of powers or federalism; democratic theory, especially as it pertains to political institutions; the history of political thought about constitutional government or constitutional forms; and questions of justice about the constitutional basic structure of a society, ranging from property and market relations to the legal organization of family life.

The Chair-holder will be in residence at RGCS, will deliver one public lecture, and will take an active part in the intellectual life of McGill, RGCS, and the Groupe de Recherche Interuniversitaire en Philosophie Politique (GRIPP).  Previous chair-holders include Andrew Rehfeld (Political Science, Washington University- St Louis), James Gardner (Law, SUNY Albany) and Erin Delaney (Law and, courtesy, Political Science, Northwestern).

Full eligibility information is available at http://www.fulbright.ca/eligibility-american-scholars/ and application infromation at http://www.fulbright.ca/programs/american-scholars/primary-awards/legal/ .  The award number is 6470.  Those interested are encouraged to contact Jacob Levy at rgcs.mcgill@gmail.com (especially for questions about thematic fit) and Michael Hawes at mhawes@fulbright.ca (especially for procedural questions) early in the application process.  Applications must be complete by August 3, 2015.

Desolate, Creepy, Suspenseful: The Second Season of "True Detective"

Alessandra Stanley reviews season 2 of HBO's True Detective for the New York Times here. She says in part:

Season 1 had two stars in the lead roles, Matthew McConaughey and Woody Harrelson. Now there are four: Vince Vaughn is Frank Semyon, a gangster-entrepreneur; Rachel McAdams is Detective Ani Bezzerides; Colin Farrell is Detective Ray Velcoro; and Taylor Kitsch is Paul Woodrugh, a motorcycle officer with the California Highway Patrol.

That’s a lot of star power and screen charisma, but all four leads wander in a haze of gloom so unrelenting and indistinguishable that it is almost comical; their lives are master classes in misery that make the novels of James Ellroy seem like Dr. Seuss stories.

The desolate landscape of industrial sprawl in the fictional city of Vinci, just outside Los Angeles, is much bleaker than the fields and swamps of rural Louisiana. Even the show’s opening theme is creepier: the sulfurous sound of Leonard Cohen reciting the words to his song, “Nevermind.”

...

There isn’t as much versatility and contrast, but the new season has evocative scenes of its own. These are seedy, small-time cops and robbers, but their story is sometimes ennobled with almost startling touches of visual grandeur. In a louche bar where Frank conducts business with Ray, the camera frames Frank’s face against a rich green backdrop and holds there — the mix of light and dark is so painterly it looks like a Renaissance portrait.

...

“True Detective” is monochromatic and self-serious, but it builds suspense with finesse and has a keen appreciation for the poetry of political corruption and urban decay.

That makes it intriguing, just not enthralling. Then again, a second novel is sometimes a prelude to a third that truly is twice as good.