August 31, 2015

The Integration of Minority World War II Veterans Into the Middle Class

Taunya Lovell Banks, University of Maryland School of Law, is publishing Race, Place and Historic Moment – Black and Japanese American World War II Veterans: The G.I. Bill of Rights and the Model Minority Myth in Intergroup Conflict and Cooperation (Robert S. Chang and Greg Robinson eds.; forthcoming). Here is the abstract.
The most commonly touted social change in the United States following the end of World War II is the expansion of the American middle class. The more frequently invoked narrative holds that the G.I. Bill, by providing veterans previously unavailable educational opportunities, elevated the socioeconomic status of a substantial segment of the American population as they entered their most productive working years. Black and Japanese American soldiers who fought abroad in racially segregated units to “make the world safe for democracy,” returned to fight, with others, for full citizenship rights at home in the civil rights movements of the mid twentieth century. During this period second generation Japanese Americans (Nisei), but not blacks, achieved near economic parity with whites causing some to characterize them as a “model minority.” Historian Roger Daniels, writing that “the transformation [of Japanese Americans] from ‘pariah to paragon’ [was not] merely a mechanical adjustment of market forces,” urged historians to more closely examine the factors contributing to the relative post-war economic success of Japanese Americans. This chapter takes on an aspect of Daniels’ challenge. It asks whether the advantages allegedly conferred on WWII veterans who received G.I. Bill benefits explains the current socio-economic status of Japanese Americans, or whether other factors better explain their relative postwar success.
Download the essay from SSRN at the link.

Legal Doctrine, Its Aims and Methods

Jan M. Smits, Maastricht University Faculty of Law, Maastricht European Private Law Institute (M-EPLI), has published What is Legal Doctrine? On the Aims and Methods of Legal-Dogmatic Research as Maastricht European Private Law Institute Working Paper No. 2015/06. Here is the abstract.
This paper seeks to obtain a better understanding of the aims and methods of doctrinal legal scholarship. It argues that legal doctrine serves the three main goals of description, prescription and justification and makes clear that many methodological choices have to be made in order to pursue these goals. One important finding is that legal doctrine reflects the normative complexity of the law: it offers detailed and sophisticated information about how to deal with conflicting arguments. Stripping the law from this practical knowledge by reducing it to general principles or policies, or by trading it in for economic or empirical analysis, is not helpful. In addition, the doctrinal approach is in many ways the necessary prerequisite for undertaking any other type of analysis of law (such as economic, comparative, empirical or behavioural work). All this contributes to carving out the proper place of legal doctrine in current legal scholarship.
Download the article from SSRN at the link.

Minnie Dean's Trial

Sophie Davis, Victoria University of Wellington, has published Hung Out to Dry? Questioning the Legality of Southland Baby-Farmer Minnie Dean’s 1895 Murder Trial and Execution as Victoria University of Wellington Legal Research Paper, Student/Alumni Paper No. 30. Here is the abstract.
In 1895 Minnie Dean became the only New Zealand woman to receive the death penalty. In the Invercargill Supreme Court she was found guilty of the murder of Dorothy Edith Carter, a child Minnie had recently adopted, who was found buried in her garden alongside two other infants. Branded a vindictive baby-farmer, Minnie Dean was widely condemned by the New Zealand press and public during the four months between her arrest and execution. This paper will assess whether, amongst the mania, Minnie was afforded a fair criminal trial and sentencing. It will be argued that while Minnie’s fate was largely predetermined from the moment of her arrest, against 1895 legal standards, correct criminal procedure was generally followed. Despite this, when comparing her trial and sentencing with contemporaneous murder trials, it is evident that Minnie Dean received no procedural clemency.

Download the article from SSRN at the link.

Legislation As Concept, Legislation As Culture

Richard K. Neumann, Jr., Hofstra University School of Law, has published Legislation's Culture as Hofstra University Legal Studies Research Paper No. 2015-10. Here is the abstract.
American statutes can seem like labyrinthine mazes when compared to some countries’ legislation. French codes are admired for their intellectual elegance and clarity. Novelists and poets (Stendhal, Valéry) have considered the Code civil to be literature. Swedish legislation might be based on empirical research into problems the legislation is intended to remedy, and the drafting style, though modern today, is descended from an oral tradition of poetic narrative. Comparing these legislative cultures with our own reveals that the main problem with American legislation is not too many words. It is too many ideas — a high ratio of concepts per legislative goal. When American, French, and Swedish legislatures address similar problems, the French and Swedes draft using far fewer concepts than Americans do. In both countries, simple solutions are preferred over convoluted ones. The drafters of the Code civil thought the highest intellectual and legislative accomplishment to be simplicity. The Swedes got to approximately the same place through a cultural value that law be understandable to the public. Where the American legislative process can seem chaotic, there has been some respect for Cartesian rationality in France and for empirical evidence in Sweden. Even if American statutes were to be translated into ordinary English, they would still be labyrinths because our legislatures insist on addressing every conceivable detail that legislators can imagine. The result is excessively conceptualized legislation, imposing large numbers of duties. Statutory concepts cost money. They create issues, which must be decided by publicly funded courts and agencies with additional costs to the parties involved. Every unnecessary statutory concept wastes social and economic resources. And to the extent law seems incomprehensible to the public, it loses moral authority.
Download the article from SSRN at the link.

Reconstructing the History of the Vatican's Copyright Privilege

Jane C. Ginsburg, Columbia Law School, is publishing Proto-Property in Literary and Artistic Works: Sixteenth-Century Papal Printing Privileges in The History of Copyright Law: A Handbook of Contemporary Research (Isabella Alexander and H. Tomas Gomez-Arostegui eds.; Edward Elgar Publishing, 2015). Here is the abstract.
This Study endeavors to reconstruct the Vatican’s precursor system of copyright, and the author’s place in it, inferred from examination of over five hundred privileges and petitions and related documents — almost all unpublished — in the Vatican Secret Archives. The typical account of the precopyright world of printing privileges, particularly in Venice, France and England, portrays a system primarily designed to promote investment in the material and labor of producing and disseminating books; protecting or rewarding authorship was at most an ancillary objective. The sixteenth-century Papal privileges found in the Archives, however, prompt some rethinking of that story because the majority of these privileges were awarded to authors, and even where a printer received a privilege for a work of a living author, the petition increasingly asserted the author’s endorsement of the application. The predominance of authors might suggest the conclusion that the Papal privilege system more closely resembled modern copyright than printer-centered systems. That said, it would be inaccurate and anachronistic to claim that authorship supplied the basis for the grant of a Papal privilege. Nonetheless, a sufficient number of petitions and privileges invoke the author’s creativity that one may cautiously suggest that authorship afforded a ground for bestowing exclusive rights. The Study proceeds as follows: first, a description of the sources consulted and methodology employed; second, an account of the system of Papal printing privileges derived from the petitions for and grants of printing monopolies; third, an examination of the justifications for Papal printing monopolies and the inferences appropriately drawn regarding the role of authors in the Papal privilege system.
Download the essay from SSRN at the link.

The Right to Participate in Cultural Life Under EU Law

Céline Romainville, Catholic University of Louvain & National Fund for Scientific Research (FRC-FNRS), has published The Right to Participate in Cultural Life Under 2015 European Union Law at European Journal of Human Rights/Journal Européen des droits de l'homme 145. Here is the abstract.
Taking the increasing importance of the EU in cultural matters as a starting point, this article attempts to assess to what extent the right to participate in cultural life (as defined based on various human rights instruments) is protected under EU law. Second it discusses the impact of EU law and policies on the enjoyment of this right. It highlights that the respect, protection and promotion of the right to participate in cultural life within EU law are obstructed by the asymmetry that exists at the European level and which favors on the one hand, non-political decision-making over political processes, and, on the other hand, negative on positive integration. This asymmetry indeed weakens national cultural policies without allowing space for specific European policies for positive integration. Third, it explores avenues for a better protection of the right to participate in cultural life under EU law.
Download the article from SSRN at the link.

Game of Thrones and International Law

Perry S. Bechky, International Trade & Investment Law PLLC & Seattle University School of Law, has published The International Law of Game of Thrones at 67 Alabama Law Review Online (2015). Here is the abstract.
Game of Thrones depicts a violent and, some might say, lawless world. Few would think that world evidences much international law. Yet, this article identifies several rules of international law observable on the show and relates them to real-world international law. Observable rules include some fundaments of the law of treaties, customary norms, and (most surprisingly) at least one humanitarian peremptory norm. These rules cover a range of subjects, including sovereignty, state responsibility, jurisdiction, immunities, and human rights. The article also discusses the special legal status of the Night’s Watch, which is governed by the most important legal “text” in Game of Thrones. Finally, the article tries to have some fun.
Download the article from SSRN at the link.

The Trial of Mendel Beilis

Vivian Grosswald Curran, University of Pittsburgh School of Law, has published At the Crossroads of Law and Society: The Trial of Mendel Beilis as University of Pittsburgh Legal Studies Research Paper No. 2015-28. It is forthcoming in the Journal of Law and Literature. Here is the abstract.
The trial of Mendel Beilis lies at the crossroads of numerous points of interests. It reveals on one level the intensity of one man’s rise in an existential sense to the demands of a situation into which he was thrust suddenly and utterly without warning. From this perspective, it is a story of captivating human and psychological interest. The legal proceedings reflected a torn and complex society on the verge of implosion, as well as one in which the tsarist judicial system, although subject to corruption and fraud at the highest levels, nevertheless had a considerable measure of independence. The trial oscillated between a story of the failures and the triumphs of justice. Finally, the trial reflected and animated fierce anti-Semitism as well as unexpectedly dedicated and enlightened support for Beilis in the Christian world of Russia and beyond, with the incipient Russian Revolution as an important context. I try to illustrate these various intersecting points of interest with the assistance of sources such as the trial transcripts; Beilis’ memoirs; the memoirs of one of his defense lawyers, O.O. Gruzenberg; and Léon Poliakov’s analysis of anti-Semitism in Russia during that period.
Download the article from SSRN at the link.

August 28, 2015

Does Hollywood Present a "Pro-Southern" View of the Struggle Between the Union and the Confederacy?

Eileen Jones has published The Cinematic Lost Cause, arguing that Hollywood generally presents a "pro-South" view of the Civil War. More here in her piece, published in the Jacobin.

The Top Ten Most Experienced Oral Advocates Before the U.S. Supreme Court

Jack Metzler has published Top Ten Supreme Court Oral Advocates (Selected Categories). Here is the abstract.
Scholars have noted the rise of experienced oral advocates in the Supreme Court, but until now, the discussion has focused on the simple number of arguments that an advocate has given before the Court. But a simple tally can both overestimate and underestimate an advocates experience. The paper uses data gathered from the Supreme Court's daily calendars and the SCOTUS Search database of oral argument statements to determine top advocates by such measures as argued words per minute and statements per 30-minute argument.
Download the essay from SSRN at the link.

James Joyce's Engagement With Nature In "Finnegans Wake"

Alison Lacivita, University of Southern Mississippi, has published The Ecology of Finnegans Wake (University Press of Florida, 2015) ( Florida James Joyce Series). Here is a description of the contents from the publisher's website.

In this book--one of the first ecocritical explorations of both Irish literature and modernism--Alison Lacivita defies the popular view of James Joyce as a thoroughly urban writer by bringing to light his consistent engagement with nature. Using genetic criticism to investigate Joyce's source texts, notebooks, and proofs, Lacivita shows how Joyce developed ecological themes in Finnegans Wake over successive drafts. Making apparent a love of growing things and a lively connection with the natural world across his texts, Lacivita's approach reveals Joyce's keen attention to the Irish landscape, meteorology, urban planning, Dublin's ecology, the exploitation of nature, and fertility and reproduction. Lacivita unearths a vital quality of Joyce's work that has largely gone undetected, decisively aligning ecocriticism with both modernism and Irish studies. 


The NSW Customs Department and Frederick Garling

Diane Kraal, Monash University, Department of Business Law and Taxation, has published Customs Revenue in the British Colony of New South Wales 1827-1859. And Inquiries Concerning Frederick Garling, Artist and Customs Department Employee at 7 Studies in the History of Tax Law 329 (2015). Here is the abstract.
Customs duties in the British Colony of New South Wales provided important funds for the economic development of the settlement. This significant source of revenue led to the Colony's Customs Department being established, in Sydney 1827, to administer the collection process. The shift from physical assessments of duty by powerful individuals to a process with legislated and more regulated procedures was not without challenges. The first aim of this chapter is to provide insights into five early inquiries concerning the system of the Colony's customs duties, legislation and practice. With a particular focus on the last two inquiries, it is asked whether any modifications were made to legislation and practice. The second aim is to provide a fuller account of the employment of Frederick Garling (1806-1873) with the Customs Department, Sydney. He was found guilty of serious neglect of duty by the NSW Board of Inquiry of 1858/59. Today, Garling is a recognised Australian colonial artist for his genre of marine watercolours.
The full text is not available from SSRN.

Star Trek: TNG As a Teaching Tool For First Year Courses

Andrew E. Taslitz, American University College of Law, Okianer Christian Dark, Howard University School of Law, and Atiba R. Ellis, West Virginia University College of Law, have published The Star Trek Enrichment Series: An Exploration in Teaching and Learning in volume 58 of the Howard Law Journal (2015). Here is the abstract.
This short essay, a part of the Howard Law Journal’s symposium in honor of the contributions of the late Professor Andrew E. Taslitz, discusses the authors’ experiences teaching the Star Trek Enrichment Series (“the Series”) at the Howard University School of Law. The Series was a six-session, one semester, non-credit course designed to creatively use Star Trek as a teaching tool in the legal academy, with particular attention to the needs of first-year students. This essay discusses our aims for the Series. It then situates the Series (and this essay) within the literature on the use of Star Trek as a tool for post-secondary teaching. Finally it reflects on the specific contributions of our dear colleague Andrew Taslitz to the Series. We designed the Series to reinforce students’ understanding of doctrine, to improve students’ understanding of jurisprudence, and to draw larger connections between the law, culture, and society. We posit that this innovation, spurred by Professor Taslitz and combining all our talents, is an important and substantial contribution to the practice and the literature on teaching and learning.
Download the article from SSRN at the link.

Language and Legal Scholarship and the Constitutionalization of International Law

Roman Kwiecien, MAria Curie-Sklodowska University, has published International Constitutionalism, Language in Legal Discourse, and the Functions of International Law Scholarship. Here is the abstract.
The article addresses an issue of the role of language and legal scholarship within the ongoing debate on constitutionalisation of international law. The author argues that the lack of common legal language can call into question usefulness of international constitutionalism vocabulary for better understanding of legal changes in contemporary international society. In fact, scholars use different languages within the mentioned debate. There are within it two opposing ‘cohesive élites’, that is to say, two élites sharing different moral, political and social values, and different aims relating to the conduct of academic discourse. Consequently, the article seeks to point out some weaknesses of the constitutionalist approach, which can justify scepticism about constitutionalisation of international law conceived both as a legal process within international society and as a research agenda
Download the article from SSRN at the link.

August 27, 2015

Torts In "The Great Gatsby"

Robin L. West, Georgetown University Law Center, has published Gatsby and Tort. Here is the abstract.
The Great Gatsby is filled with potential tort claims, from drunken or reckless driving to assault and battery. In a pivotal passage Nick Carraway, the narrator of The Great Gatsby, judges Daisy and Tom as “careless people,” who “destroy creatures and leave others to clean up the mess.” The carelessness, negligence, and recklessness portrayed by Fitzgerald’s characters shows an absence of due care, long regarded as the foundation for tort law. Although there are torts, tortfeasors, and tortious behavior aplenty in The Great Gatsby, the novel is void of even a mention of tort law. Why? The first part of this piece discusses tort law during Gatsby’s decade -- the beginning of the “era of automobility” -- and explains tort law’s absence from the novel: Tort law is absent from The Great Gatsby, in part, because tort law itself was dysfunctional and could not provide meaningful access to the legal system. Tort victims of automobile accidents were largely unable to access legal avenues, and recovery was hindered by a host of rules, prominently the contributory negligence system. The piece then briefly describes a reform movement, led by progressive legal realists, to replace tort recovery for automobile accidents with a no-fault compensation scheme. One consequence of that movement, I suggest, was the loss of tort law’s traditional “moral center,” the idea of the law of torts as a “law of wrongs.” The second part of the piece then discusses the costs of this change, politically and conceptually, and briefly defends traditional “wrongs” and “justice-based” tort law against compensation-minded reforms. I conclude that while the moralistic tort law of Gatsby’s era expressed plenty of blame for tortfeasors, it failed to hold them accountable, thus contributing to the death of our understanding of the law of tort as a law of wrongs -- and only partly and fitfully replaced by compensation schemes.
Download the article from SSRN at the link.

A Response To David Luban's Reassessment of Hannah Arendt On Genocide

Luis Pereira Coutinho, University of Lisbon School of Law, has published Hannah Arendt's Moral Ontology: Comments on David Luban's Arendt on the Crime of Crimes at 28 Ratio Juris 326 (2015). Here is the abstract.
David Luban identifies a tension between Arendt's conception of ethnic identification in a context of persecution and her conception of humanity. That tension pertains to the reality - or realities - that Arendt addresses: the moral reality of her Bildung that appears throughout her work, and is centered on the “dignity of man,” on the one hand, and the divisive, “political” reality that she was forced to face when “attacked as a Jew,” on the other. By implicitly accepting that in a context of persecution one cannot escape the framing relevance of the “political” - an idea that is also present in her imaginary condemnation speech of Eichmann - Arendt betrays a fundamental theme of her work: “forgiveness” and the inherent possibility of a “new beginning.”
The full text is not available for free from SSRN.

Reassessing Arendt On Genocide

David J. Luban, Georgetown University Law Center, has published Arendt on the Crime of Crimes at 28 Ratio Juris 307 (2015). Here is the abstract.
Genocide is the intentional destruction of a group as such. What makes groups important, over and above the individual worth of the group's members? This paper explores Hannah Arendt's efforts to answer that question, and concludes that she failed. In the course of the argument, it examines her understanding of Jewish history, her ideas about “the social,” and her conception of “humanity” as a normative stance toward international responsibility rather than a descriptive concept.
The full text is not available free from SSRN.

Political Authority and the Accommodation of Minorities

Alex Schwartz, Queen's University Belfast School of Law, has published Authority, Nationality, and Minorities at 28 Ratio Juris 354 (2015). Here is the abstract.
Prominent normative theories for accommodating minority national groups appeal to the value of national cultures and/or the psychology of group recognition. This article aims to show that an argument from political authority provides a better justification. Building on Joseph Raz's theory of authority, the article argues that members of minority national groups are disadvantaged in relation to their majority counterparts under standard democratic institutions; such institutions do not provide minority national groups with comparable access to the conditions for legitimate political authority. Constitutional arrangements for accommodating minority national groups — such as territorial self‐government or power‐sharing — are justified insofar as they might offset this disadvantage.
The full text is not available for free from SSRN.

August 26, 2015

Lies and Truth In the Constitution

Mary Anne Franks, University of Miami School of Law, is publishing Where the Law Lies: Constitutional Fictions and Their Discontents in Law and Lies: Deception and Truth-Telling in the American Legal System (Austin Sarat, ed.; Cambridge University Press, 2015). Here is the abstract.
My contribution to the volume Law and Lies begins with the observation that America is built on a lie. That lie inheres in its foundational text, the Constitution of the United States, which begins in the false claim to speak of and for “we the people” even as the majority of its population – in particular black men and all women – were denied access to the most basic forms of political participation. This simultaneous act of symbolic inclusion and material exclusion has never been fully acknowledged or confronted, which is another way of saying that it has never really ended. As many lies are, America’s constitutional lie is generative: it produces other, secondary, mutually reinforcing legal fictions that obscure the deception buried deep in the social and political structure. These fictions serve multiple purposes, including providing reassurance to those holding abstract commitments to equality as well as seducing and subduing excluded groups that might otherwise demand recognition and reparation for injustices done to them. As long as these constitutional fictions persist, the political existence of women and black men remains fundamentally unstable.
Download the essay from SSRN at the link.

August 25, 2015

Writing the Detective Novel

Have you ever wanted to write detective fiction? Here's some assistance from two experts.

First Raymond Chandler offers Ten Commandments for writing a detective novel, available here from Open Culture.

His first rule: 1) It [the novel] must be credibly motivated, both as to the original situation and the dénouement.

Also check out Father Ronald Knox's Ten Commandments for writing detective fiction, here. 

He begins:  The criminal must be someone mentioned in the early part of the story, but must not be anyone whose thoughts the reader has been allowed to follow.  Agatha Christie broke that one quite famously in The Murder of Roger Ackroyd.

Of course, if writing detective novels, or any fiction, were that easy, anybody could do it. Reminds me of the old joke about the aspiring writer who asked a publisher how long novels are supposed to be. Intending to be helpful, she responded, "Oh, about 70,000 words or so." "Great!" he said. "Then I'm done!" 

Call For Papers: Feminist Legal Theory Collaborative Research Network/Law and Society Association Annual Meeting, June 2-5, 2016

Call for Papers from Jessica Clarke, University of Minnesota Law School

Call for Papers – Friday September 18th Deadline
Feminist Legal Theory Collaborative Research Network
at the Law and Society Association Annual Meeting
New Orleans, June 2-5, 2016

Dear friends and colleagues,

We write to invite you to participate in panels sponsored by the Feminist Legal Theory Collaborative Research Network at the Law and Society Annual Meeting in 2016.

Information about the Law and Society meeting (including registration and hotel information) is at:

Within Law & Society, the Feminist Legal Theory CRN seeks to bring together scholars across a range of fields who are interested in feminist legal theory. There is no pre-set theme to which papers must conform. We would be especially happy to see proposals that fit in with the LSA conference theme, which is the role of law and legal institutions in sustaining, creating, interrogating, and ameliorating inequalities. We welcome proposals that would permit us to collaborate with other CRNs, such as the Critical Research on Race and the Law CRN or the Gender, Sexuality and the Law CRN. Also, because the LSA meeting attracts scholars from other disciplines, we welcome multidisciplinary proposals.

Our goal is to stimulate focused discussion of papers on which scholars are currently working. Thus, while proposals may reference work that is well on the way to publication, we are particularly eager to solicit proposals for works-in-progress that are at an earlier stage and will benefit from the discussion that the panels will provide.

A committee of the CRN will assign individual papers to panels based on subject. Our panels will use the LSA format, which requires four papers, but we will continue our custom of assigning a chair for the panel and a commentator for each individual paper. As a condition of participating as a panelist, you must also agree to serve as a chair or commentator for another panel or participant. We will of course take into account your scheduling and topic preferences to the degree possible.

The duties of a chair are to organize the panel logistically, including registering it online with the LSA, and moderating the panel. The chair will develop a 100-250 word description for the session and submit the session proposal to LSA before their upcoming deadline on October 15, so that each panelist can submit his or her proposal, using the panel number assigned. Chairs will also be responsible for assigning commentators but may wait to do so until panels have been scheduled later this winter. The duties of a commentator are to read one paper and provide verbal comments as well as brief written (email is fine) comments.

If you would like to present a paper as part of a CRN panel, please email an abstract or summary, along with your name and a title, to Jessica Clarke at  There is no need to upload the document to the TWEN site this year. Note that LSA is imposing a new requirement that your summary be at least 1,000 words long.  Although a shorter summary will suffice for our purposes, you will be required to upload a 1,000 word summary in advance of LSA’s deadline on October 15. If you are already planning a LSA session with at least four panelists (and papers) that you would like to see included in the Feminist Legal Theory CRN, please let Jessica know.

In addition to these panels, we may try to use some of the other formats that the LSA provides: the “author meets readers” format, salon, or the roundtable discussion. If you have an idea that you think would work well in one of these formats, please let us know. Please note that for roundtables, organizers are now required to provide a 500 word summary of the topic and the contributions they expect the proposed participants to make. Please also note that LSA rules limit you to participating only once as a paper panelist or roundtable participant.

Please submit all proposals by Friday, September 18. This will permit us to organize panels and submit them prior to the LSA’s deadline on October 15. In the past, we have attempted to accommodate as many panelists as possible, but have been unable to accept all proposals. If we are unable to accept your proposal for the CRN, we will notify you by early October so that you can submit an independent proposal to LSA.

We hope you’ll join us in New Orleans to discuss the scholarship in which we are all engaged and connect with others doing work on feminism and gender.

LSA Planning Committee
Jessica Clarke
Jill Hasday
Jessica Knouse
Elizabeth Kukura
Seema Mohapatra
Marc Spindelman


True (Legal) Grit

Emily Zimmerman, Drexel University School of Law, and Leah Brogan, Drexel University, are publishing Grit and Legal Education in the Pace Law Review. Here is the abstract.
Although research indicates that grit predicts successful performance in a variety of contexts, grit is underexplored in the context of legal education. We investigated the relationship between grit and law school grade point average (GPA) among recent law school graduates. Contrary to expectations, a statistically significant correlation did not emerge between grit and law school GPA. However, average grit scores of women and men did significantly differ, with women reporting higher overall grit scores than men. Female and male participants’ law school GPAs did not significantly differ. This article discusses our research project and the questions regarding legal education that our findings raise. We also identify areas for further research regarding grit, legal education, and law practice.
Download the article from SSRN at the link.

German Constitutionalism

Michaela Hailbronner, Institute for Comparative and International Law in Africa, is publishing Traditions and Transformations: The Rise of German Constitutionalism (Oxford University Press, November 2015). Here is the abstract.
German constitutionalism has gained a central place in the global comparative debate, but what underpins it remains imperfectly understood. Its distinctive conception of the rule of law and the widespread support for its powerful Constitutional Court are typically explained in one of two ways: as a story of change in reaction to National Socialism, or as the continuation of an older nineteenth-century line of constitutional thought that emphasizes the function of constitutional law as a constraint on state power. But while both narratives account for some important features, their explanatory value is ultimately overrated. This book adopts a broader comparative perspective to understand the rise of the German Constitutional Court. It interprets the particular features of German constitutional jurisprudence and the Court's strength as a reconciliation of two different legal paradigms: first, a hierarchical legal culture as described by Mirjan Damaska, building on Max Weber, as opposed to a more co-ordinate understanding of legal authority such as prevails in the United States, and secondly, the turn towards a transformative understanding of constitutionalism, as it is today most often associated with countries such as South Africa and India. Using post-war legal history and sociological and empirical research in addition to case law, this book demonstrates how German constitutionalism has harmonized the frequently conflicting demands of these two legal paradigms, resulting in a distinctive type of constitutional reasoning, at once open, pragmatic, formalist, and technical, which this book labels Value Formalism. Value Formalism, however, also comes with serious drawbacks, such as a lack of institutional self-reflection in the Court's jurisprudence and a closure of constitutional discourse to laymen, whom it excludes from the realm of legitimate interpreters.

Protection of Intellectual Property as a Social Justice Issue

Thomas C. Berg, University of St. Thomas, St. Paul/Minneapolis School of Law, has published Agape, Gift, and Intellectual Property as University of St. Thomas (Minnesota) Legal Studies Research Paper No. 15-19. Here is the abstract.
The scope of protection of intellectual property (IP) has become a social justice as well as a legal and business issue, especially in the international arena, where disputes continue over whether expanded IP rights help or harm people in developing nations. Scholars writing in the Christian tradition have begun to respond to these questions, analyzing IP-related issues in the light of Christian theological themes such as creation, stewardship, and solidarity with the poor. This paper, written for a Pepperdine Law School symposium on love and justice, explores potential implications for IP of another central Christian theme, agape: the form of love, independent of particularistic loyalties, that is most distinctive of Christian ethics. Agape in turns connects with the idea of “gift”: that creativity, among other human attributes, is a gift that humans receive (from a divine giver, Christians and other religious believers say). In Christian thought the sense of gift, and gratitude for the gift, connects to love of God and neighbor: the response of gratitude to God is to use the gift to benefit others. I connect these themes to those critics of IP rights, such as Lewis Hyde, who appeal to the virtues of a “gift economy” in which knowledge is shared rather than commoditized. Economies based on gift, and gratitude to the giver, have been thought to have a dark side: they can reinforce personal indebtedness and social hierarchies. But, following on the work of other Christian thinkers, I argue that the gift-giving economy can be universalized, and made more egalitarian, if we maintain, or recover, the sense that the human talents that produce goods are themselves gifts from a universal source (in Christian and other religious thought, from the God who gives all gifts in the first place). Creativity is thus a fundamental gift we receive, and IP law should encourage the response of gratitude: dissemination of that gift to others to benefit them, and empowerment of others to realize their own creative gifts. The paper concludes with suggested general implications for IP law and policy.

August 24, 2015

State Constitutional Protections For Economic Rights Prior to the Civil War

James W. Ely, Jr., Vanderbilt University Law School, is publishing ‘The Sacredness of Private Property:’ State Constitutional Law and the Protection of Economic Rights Before the Civil War in the NYU Journal of Law & Liberty. Here is the abstract.
This essay explores state constitutional law before the Civil War pertaining to economic rights. It argues that antebellum state courts played a crucial and underappreciated role in defending property and contractual rights from legislative assault. Before the adoption of the Fourteenth Amendment most constitutional questions relating to property were handled in state courts and implicated state constitutional law. The essay considers how state courts shaped takings and due process jurisprudence, often anticipating subsequent decisions by the Supreme Court of the United States. They were the first, for example, to consider the scope of “public use” and the amount of “just compensation” when government sought to acquire property. Moreover, they grappled with the extent to which the due process guarantee in state constitutions conferred substantive protection to the rights of property owners. Despite the pivotal role of the Supreme Court in fashioning contract clause jurisprudence, state courts heard far more contract clause cases and significantly impacted the formation of law in this field as well. State constitutionalism was vitally important to the development of property owners.
Download the essay from SSRN at the link.

Conrad's "Heart of Darkness" as a Critique of Leopold II's Colonial Rule

Isam M. Shihada, Al Aqsa University, is publishing Historicizing Joseph Conrad's Heart of Darkness: A Critique of King Leopold II's Colonial Rule in volume 5 of English Language and Literature Studies (2015). Here is the abstract.
This study examines how Conrad's Heart of Darkness has played an important role in exposing the brutal reality of Belgian colonialism in the Congo Free State under the pretense of a civilizing mission. The study focuses on how Conrad’s Heart of Darkness has been instrumental in revealing the atrocities committed by King Leopold II’s agents in their desperate scramble for the rich resources of the Congo, such as ivory and rubber. King Leopold II’s atrocities may account for the death of almost ten million Congolese natives, a crime of a genocidal scale, which has terribly affected the people of the Congo to this day. Conrad renders his own anti-colonial critique through his central character, Charles Marlow, who learns about the brutal methods of Belgian colonialism while on a journey to the Congo searching for the infamous ivory agent, Kurtz. The study examines how Conrad's Heart of Darkness critiqued King Leopold II's colonial rule and contributed to the launching of an international protest which exposed and put an end to the genocide committed against the Congolese in the name of civilization, science, and progress. The campaign eventually forced King Leopold II to quit the Congo Free State in 1908, and unraveled one of the most heinous crimes in history committed under the pretext of “civilization”.
Download the article from SSRN at the link.

Unarmed Black Males, Police Shootings, and Courtroom Narratives

Sherri Lee Keene, University of Maryland School of Law, is publishing Victim or Thug? Examining the Relevance of Stories in Cases Involving Shootings of Unarmed Black Males in volume 58 of the Howard Law Journal (2015). Here is the abstract.
In recent years, the shootings of unarmed African American men and boys by individuals with real or purported police authority have garnered significant public attention. Moreover, studies about these incidents have revealed stark contrasts in perspectives between African Americans and White Americans concerning jury decisions not to charge or not to convict the shooters, and the role that race may have played in these cases. Recent polls reveal that African Americans express significantly greater dissatisfaction with these jury decisions and often share the belief that race has played a role. While it is not possible to know the extent to which race actually impacted recent jury decisions, this article explains how matters of race can find their way into jurors’ assessments of cases involving shootings of unarmed African American males. This essay focuses on what we now know about the role of stories in jury decision-making, and the opportunities that stories afford for jurors’ pre-existing attitudes and beliefs, including their biases and prejudices, to factor into their evaluations of cases. Ultimately, this essay argues that the quality of justice and public perceptions would be improved if courts reconsider how they address bias and prejudice in the courtroom. It encourages courts to acknowledge the role that jurors’ perspectives play in decision-making, and employ practices that raise jurors’ awareness of their own biases and encourage the selection of jurors who bring diverse perspectives.
Download the essay from SSRN at the link.

Empathy, Masculinity, and Atticus Finch

Richard H. McAdams, University of Chicago Law School, has published Empathy and Masculinity in Harper Lee's to Kill a Mockingbird in American Guy: Masculinity in American Law and Literature 239-261 (Saul Levmore and Martha C. Nussbaum, Oxford University Press, 2014). Here is the abstract.
Harper Lee’s To Kill a Mockingbird illustrates a troubled relationship between lawyering and empathy and between empathy and masculinity. To begin, empathetic understanding has two sides: it can produce compassionate or altruistic behavior, but there is also a strategic value: a competitor who understands the thoughts and feelings of others is better able to anticipate an opponent's next move and stay one step ahead. Atticus Finch demonstrates both aspects of empathy: his ability to imagine the world from the perspective of others makes him a more compassionate and helpful father and neighbor, but also a more effective lawyer, better able to cross-examine adverse witnesses and to make arguments that (might) appeal to jurors. Atticus understands better than anyone else in Maycomb the tragic predicament of Mayella Ewell, but he uses his empathy to harm her, that is, to help his client Tom Robinson by exposing her as a liar. The irony is that the empathetic insight that makes Atticus the best person to cross-examine Mayella also makes him (among all those who believe she is lying) feel the most compassion for her. But the role of zealous advocate leaves limited room for showing compassion to one's adversary. Empathy connects with the novel’s focus on masculinity. The novel offers a new version of white manhood in the Jim Crow South. The conventional white southern male of the 1930s romanticized the Lost Cause of the Confederacy and adhered to a strict code of chivalry that required the use of violence to assuage insults to honor, particularly the honor of white southern women. According to this chivalric ideology, the greatest threat to white womanhood was black male predation, and the manly response was the lynching, not only of alleged black rapists but of other black men whose behavior seemed to question white supremacy. The novel offers Atticus as a male hero who rejects the white supremacist assumptions of lynching. Less obvious are the tools the novel uses to draw our attention to the concept of manhood and to invert its standard meaning. Atticus' courage is nonviolent, which the novel contrasts with cowardly violence; Atticus fights for a lost cause that is not the Confederacy, but its victim; and Atticus acts valiantly by protecting an innocent black man from the accusation of a white woman. Southern chivalry is turned on its head. The connection to empathy is that Atticus' sense of empathy is one of the key ways in which he systematically violates period expectations for masculinity.

Download the essay from SSRN at the link.

August 21, 2015

Eric Ambler's Thrillers

John Gray re-considers Eric Ambler's spy novels here, for the BBC Magazine.

Social Scientific Evidence and Its Place In the Contemporary U. S. Trial

Robert P. Burns, Northwestern University, School of Law, has published Social Scientific Evidence as Northwestern Public Law Research Paper No. 15-43. Here is the abstract.
This paper considers two distinct and internally complex language regions, those of the contemporary American trial and of the social sciences. Its concern is how the trial treats the social sciences, not how the social sciences treat the trial. It first surveys the controversies that surround each region and argues that those controversies counsel against any "craving for generality" in defining their relationship with one another. It then describes the canonical account of the trial implicit in the rationalist tradition of evidence scholarship and explains how that account understands the place of social scientific evidence within it. The paper contrasts that received view of the trial with a more concrete and, to my mind, adequate interpretation of the trial. It then provides an account of the various functions of the social sciences within that more adequate understanding of the trial.
Download the article from SSRN at the link.

Two South African Leaders: Nelson Mandela and Arthur Chaskalson

Stphen Ellmann, New York Law School, has published Two South African Men of the Law at 28 Temple International & Comparative Law Journal 431 (2014). Here is the abstract.
This essay remembers two great South African lawyers, Nelson Mandela, who became post-apartheid South Africa’s first President, and Arthur Chaskalson, the man whom Mandela chose to head the country’s new Constitutional Court. Both men’s lives, remarkable in themselves, also help us to understand what it means to be a “man of the law.” Mandela was a revolutionary and a lawbreaker, but he was also a lawyer who was never disbarred despite being imprisoned for almost three decades – and in fact his life turns out to exemplify a faith in law: not a naïve notion that apartheid law was just, but a deep commitment to the importance and value of just law. Arthur Chaskalson, for his part, was a leader of the South African bar who used South African law against itself in the struggle against apartheid. He too believed in law, but again not in a naïve way: he did not imagine that law would end apartheid, but he knew that South African law still contained elements of justice, and he used those elements to contribute to apartheid’s dissolution and to help build the legal order of the new South Africa. Both Mandela and Chaskalson were lawyer-statesmen, to use Anthony Kronman’s phrase, but their lives teach us that lawyer-statesmen are not always people who exchange moral certainty for wisdom and forbearance, as Kronman’s account seems to suggest. Different times call for different kinds of statesmen and stateswomen, and Nelson Mandela and Arthur Chaskalson brought to their lifelong struggle against searing injustice deep fidelity to law, but also political passion and radical conviction.
Download the abstract from SSRN at the link.

August 20, 2015

Marxism and Normative Theory

Brian Leiter, University of Chicago, is publishing Why Marxism Still Does Not Need Normative Theory in Analyse und Kritik (2015). Here is the abstract.
Marx did not have a normative theory, that is, a theory that purported to justify, discursively and systematically, his normative opinions, to show them to be rationally obligatory or objectively valid. In this regard, Marx was obviously not alone: almost everyone, including those who lead what are widely regarded as exemplary “moral” lives, decide and act on the basis of normative intuitions and inclinations that fall far short of a theory. Yet self-proclaimed Marxists like G.A. Cohen and Jurgen Habermas have reintroduced a kind of normative theory into the Marxian tradition that Marx himself would have ridiculed. This essay defends Marx’s position and tries to explain the collapse of Western Marxism into bourgeois practical philosophy, i.e., philosophizing about what ought to be done that is unthreatening to capitalist relations of production (more precisely, practical philosophy that is addressed to individuals, that is primarily concerned with what to believe, and that is obsessed with moral trivialities). Part I argues that the Marxian account of revolution under capitalism presupposes only that the agents are instrumentally rational (and thus Marx is, for all important purposes, a Humean). Part II offers a kind of intellectual genealogy of the rise of bourgeois practical philosophy in America, England, and Europe, focusing, in particular, on Cohen and Habermas, but also Peter Singer. Various forms of intuitionism (Moore, Rawls) are central to the story in the Anglophone world, while the crucial event in the European context was the merely philosophical challenge to instrumental rationality launched by Horkheimer and brought to Kantian fruition by Habermas. Part III concludes with some speculative structural hypotheses about why Marxism should have collapsed into irrelevant normative theory over the last half-century, noting the political and legal purge of Marxists in both American and Germany, as well as the massive expansion of the university system and the premium placed on an appearance of a “method.”
Download the article from SSRN at the link.

August 19, 2015

A New Book on Law and Film

Forthcoming from the University of Texas Press: Jeremy Geltzer's Dirty Words & Filthy Pictures: Film and the First Amendment (2015). Here is a description of the content from the publisher's website.
From the earliest days of cinema, scandalous films such as The Kiss (1896) attracted audiences eager to see provocative images on screen. With controversial content, motion pictures challenged social norms and prevailing laws at the intersection of art and entertainment. Today, the First Amendment protects a wide range of free speech, but this wasn’t always the case. For the first fifty years, movies could be censored and banned by city and state officials charged with protecting the moral fabric of their communities. Once film was embraced under the First Amendment by the Supreme Court’s Miracle decision in 1952, new problems pushed notions of acceptable content even further. Dirty Words & Filthy Pictures explores movies that changed the law and resulted in greater creative freedom for all. Relying on primary sources that include court decisions, contemporary periodicals, state censorship ordinances, and studio production codes, Jeremy Geltzer offers a comprehensive and fascinating history of cinema and free speech, from the earliest films of Thomas Edison to the impact of pornography and the Internet. With incisive case studies of risqué pictures, subversive foreign films, and banned B-movies, he reveals how the legal battles over film content changed long-held interpretations of the Constitution, expanded personal freedoms, and opened a new era of free speech. An important contribution to film studies and media law, Geltzer’s work presents the history of film and the First Amendment with an unprecedented level of detail.

Dirty Words and Filthy Pictures
Cross-posted to the Media Law Prof Blog.

The Turner Rebellion and the Hegelian Dialectic

Christopher Tomlins, University of California, Berkeley, Jurisprudence and Social Policy Program, has published The Work of Death: Massacre and Retribution in Southampton County, Virginia, August 1831, as UC Berkeley Public Law Research Paper No. 2639785. Here is the abstract.
What does it mean, particularly to a slave, to describe dealing death as “work?” This essay employs G.W.F. Hegel’s famous lordship/bondage dialectic (from The Phenomenology of Mind) to explore the massacre of 55 members of white slaveholding families that took place on Monday August 22nd 1831 in St. Luke’s Parish, Southampton County, Virginia, now known as “The Turner Rebellion.” I argue that certain specificities of the Hegelian dialectic, notably the centrality of work to the bondsman’s “direct apprehension” of its self as independent, are key components of the massacre. Likewise, I argue that the dialectic helps us understand the specifically juridical form of retributive killing that followed the massacre, in which 18 slaves, variously accused of “feloniously counselling, advising and conspiring with each other and divers other slaves to rebel and make insurrection and making insurrection and taking the lives of divers free white persons of the Commonwealth” were executed. The essay also explores the sociology and social anthropology of the killing that was the focal point of the rebellion. It considers whether this killing was incidental to some other purpose, such as revenge, or revolution, or central and essential to what Nat Turner desired to achieve.
Download the article from SSRN at the link.

John Erskine's An Institute of the Law of Scotland

Kenneth Reid, University of Edinburgh School of Law, has published John Erskine and the Institute of the Law of Scotland as Old Studies In Scots Law (Edinburgh Legal Trust, 2014). Here is the abstract.
Published posthumously in 1773, John Erskine’s An Institute of the Law of Scotland is the most important work on Scots law of the eighteenth century. Even today, it is one of the small canon of ‘institutional’ writings which continues to be consulted and to be cited in court. This paper begins by examining what is known of Erskine’s career, first as an advocate and then, from 1737 to 1765, as Professor of Scots Law at Edinburgh University. Detailed consideration is given to the writing of the Institute, to its publication, to the later editions, and to the fluctuations in the work’s reputation. Finally, the text of the Institute itself is examined, with particular attention being given to its structure, the range and depth of treatment, the relationship to the earlier Principles of the Law of Scotland (intended as a student text), and to the sources used.
Download the article from SSRN at the link.

Writing? A Difficult Life

As a young man, H. G. Wells (born 1866, died 1946) was discouraged by his lack of financial success in writing. In 1888, he reckoned that he had made one pound (net) from his literary work. More here from Futility Closet.

Norms as Entities

Maribel Narváez Mora, University of Girona, has published Expressing Norms. On Norm-Formulations and Other Entities in Legal Theory at 25 Revus: Journal for Constitutional Theory and Philosophy of Law 43 (2015). Here is the abstract.
The distinction between norms and norm-formulations commits legal theorists to treating legal norms as entities. In this article, I first explore the path from meaning to entities built by some analytical philosophers of language. Later, I present a set of problems produced by treating norms as entities. Whatever type of entities we deal with calls for a clear differentiation between the identification and individuation criteria of such entities. In the putative case of abstract entities, the differentiation collapses. By changing the notions of the intension and extension of words by extensional and intensional aspects of what we talk about, I outline a methodological programme for Law and Legal Theory. That programme is based in the identification of normativity.
Download the article from SSRN at the link. Read the Spanish language version of the article here.

Another Look at Daubert

Barbara P. Billauer, Institute of World Politics & Foundation for Law and Science Centers, Inc., has published Daubert Debunked: A History of Legal Retrogression and the Need to Redefine 'Science' in Law. Here is the abstract.
With ‘novel’ scientific discoveries accelerating at an unrelenting pace, the need for accessible and implementable standards for evaluating the legal admissibility of scientific evidence becomes more and more crucial. As science changes, legal standards for evaluating ‘novel’ science must be plastic enough to respond to fast-moving changes. This, ostensibly, was the Daubert objective. Since it was decided in 1993, however, Daubert’s impact has been hotly contested – with plaintiffs and defendants each claiming the decision unfairly favors the other side. New approaches are constantly suggested to deal with the perceived impact, although there is no uniform consensus of exactly what that impact is. Without accurate and demonstrable evidence of Daubert’s effect, however, the current ad hoc approach of suggesting new gatekeeping methods – is at best blind, and at worst, a partisan attempt to manipulate judicial decision-making. This article reports on a retrospective review of data regarding the impact of Daubert on admissibility of scientific evidence, for the first time – via a simple statistical perspective. This method confirms other assessments (using different methodologies) that (allowing for short-term corrections post-Daubert), there is no difference in outcome whether Frye or Daubert tests are used. Given that entirely different standards were used in both cases – yet yield similar results – one must acknowledge the possibility that both tests are ‘scientifically’ flawed. Further, empirical evidence and academic research agree that judges now substitute their own mechanisms for evaluating scientific evidence, in some cases applying neither Daubert nor the pre-existing Frye test. The reasons are unclear – perhaps due to an instinctual aversion to the muddied or flawed standards enunciated in both. Nevertheless, it does appear that judges are uncomfortable understanding several Daubert tests, including the ‘falsification’ criterion, which is the foundation stone of the Daubert analysis. Via re-analysis of the Rand study of 2001 which examined effects of Daubert, this research further highlights the scientific/mathematical illiteracy of the current legal community (especially, as I demonstrate, compared to judges pre-Frye). This situation presents a major obstacle for devising a workable method for judicial gatekeeping of scientific evidence. Ultimately, however, lawyers and scientists must first agree what ‘science’ is before better methods of evaluating proffered evidence can be devised. It is suggested that lawyers turn to scientists who developed the scientific method as it applies to the science of the courtroom: biology, chemistry and simple physics to enlighten themselves – substituting these approaches for the flawed and faulty premises advocated by Daubert and Frye.
Download the article from SSRN at the link.

August 18, 2015

Popular Culture and the Metamorphosis of Law

New from Taylor and Francis: Cultural Legal Studies: Law's Popular Cultures and the Metamorphosis of Law (Cassandra Sharp and Marett Leiboff, eds.; 2015). Here is a description of the contents from the publisher's website.
What can law’s popular cultures do for law, as a constitutive and interrogative critical practice? This collection explores such a question through the lens of the ‘cultural legal studies’ movement, which proffers a new encounter with the ‘cultural turn’ in law and legal theory. Moving beyond the ‘law ands’ (literature, humanities, culture, film, visual and aesthetics) on which it is based, this book demonstrates how the techniques and practices of cultural legal studies can be used to metamorphose law and the legalities that underpin its popular imaginary. By drawing on three different modes of cultural legal studies – storytelling, technology and jurisprudence – the collection showcases the intersectional practices of cultural legal studies, and law in its popular cultural mode. The contributors to the collection deploy differentiated modes of cultural legal studies practice, adopting diverse philosophical, disciplinary, methodological and theoretical approaches and subjects of examination. The collection draws on this mix of diversity and homogeneity to thread together its overarching theme: that we must take seriously an interrogation of law as culture and in its cultural form. That is, it does not ask how a text ‘represents’ law; but rather how the representational nature of both law and culture intersect so that the ‘juridical’ become visible in various cultural manifestations. In short, it asks: how law’s popular cultures actively effect the metamorphosis of law.
Wonderful publication with great contributors: PART I: Cultural Legal Studies – The Urgency of Method and Story 1. Cultural Legal Studies and Law’s Popular Cultures, Marett Leiboff & Cassandra Sharp 2. Cultural Legal Studies as Law’s Extroversion, Marett Leiboff 3. Finding Stories of Justice in the Art of Conversation: Ethnography in Cultural Legal Studies, Cassandra Sharp PART II: Cultural Legal Studies as Legal Storytelling 4. Interventions into the Feeling of Popular Justice: Australia’s Stolen Generations, the Problem of Sentimentality, and Re-Encountering the Testimonial Form, Honni Van Rijswijk 5. Border Crossings: The Transnational Career of the Television Crime Drama, Sue Turnbull 6. Theatre and the Law in the 21st Century, Peter Robson PART III: Law’s Technologies and Cultural Legal Studies 7. Picturing Justice in a Fraught Legal Arena: Fetus, Phantoms and Mandatory Ultrasounds, Jessica Silbey 8. Peeping: Open Justice and Law’s Voyeurs, Katherine Biber 9. Irony as Method: Reframing Photographs in Cultural Legal Studies, Karen Crawley 10. Bodies, Cinema, Sovereignty: Using Visual Culture Methodologies to Think About Other Ways that Law Might Work, Kirsty Duncanson PART IV: Cultural Legal Studies as Jurisprudence 11. Popular Culture’s Lex Vampirica: The Law of the Undead in True Blood, the Twilight Sagaand The Passage, William Macneil 12. Reading the Law Made Strange: Cultural Legal Studies, Theology and Speculative Fiction, Timothy D Peters 13. Republicanism Meets (Dystopian) Faërie: Harry Potter and the Institutional Disaster, Luis Gómez Romero.

But that price! $140 in hardcover. Oh, dear.

Economic Theory and Legal Change In Russia In the 1920s and the 1990s

Simon Deakin, University of Cambridge, Centre for Business Research, University of Cambridge Faculty of Law, and European Corporate Governance Institute (ECGI), and John Hamilton, University of Cambridge, Centre for Business Research, have published Russia's Legal Transitions: Marxist Theory, Neoclassical Economics and the Rule of Law as University of Cambridge Faculty of Law Research Paper No. 42/2015. Here is the abstract.
We review the role of economic theory in shaping the process of legal change in Russia during the two transitions it experienced during the course of the twentieth century: the transition to a socialist economy organised along the lines of state ownership of the means of production in the 1920s, and the transition to a market economy which occurred after the fall of the Soviet Union in the 1990s. Despite differences in methodology and in policy implications, Marxist theory, dominant in the 1920s, and neoclassical economics, dominant in the 1990s, offered a similarly reductive account of law as subservient to wider economic forces. In both cases, the subordinate place accorded to law undermined the transition process. Although path dependence and history are frequently invoked to explain the limited development of the rule of law in Russia during the 1990s, policy choices driven by a deterministic conception of law and economics also played a role.
Download the article from SSRN at the link.

Sexuality, Criminal Law, the Internet, and the First Amendment

Thea Johnson and Andrew Gilden, both of Stanford Law School, have published Common Sense and the Cannibal Cop at 11 Stanford Journal of Civil Rights and Civil Liberties 313 (2015). Here is the abstract.
The Internet has created unprecedented opportunities for individuals to explore a wide range of unfamiliar and often-marginalized desires, and in doing so has also created unprecedented opportunities for the criminal justice system to monitor and punish these sexual desires. An important example of this dynamic is the recent trial of Gilberto Valle, New York City’s so-called “Cannibal Cop.” Valle, an NYPD officer, was convicted for conspiracy to kidnap several women based on a series of highly fictionalized conversations on a “dark fetish” fantasy website. Although these conversations revealed Valle’s fantasies involving kidnapping, torturing, and cannibalizing women, he had made no effort to kidnap, kill, or eat anyone, and there was no evidence that his online discussions went beyond graphic exchanges and digital role-playing. The “Cannibal Cop” case provides a useful template for examining the ethical boundaries of applying criminal laws to the precarious realm of Internet-mediated sexuality. This Essay highlights some of the important questions raised by the prosecution of the Cannibal Cop, and it emphasizes the need to carefully approach the important, yet inherently blurry line between “fantasy” and “reality.” We caution against overreliance on "common sense" in cases like this, given the incomplete lay understandings of how people use the Internet to explore sexual desires and the risk that legal decisions will be driven by disapproval of these desires.
Download the essay from SSRN at the link.

UK TV Judges! Please Stop Banging Those Gavels!

We see UK tv judges using gavels all the time in tv courtrooms. But, as the Guardian points once again in this article, real life UK judges don't use them in real life courts....We can ask that the writers cease and desist. Cut it out. Stop it. Halt. But I think that they won't, because gavel banging is colorful (sorry, colourful) and makes an exciting noise, and resonates (sorry again) with viewers who may be more familiar with US tv courtrooms, in which tv judges do use gavels. The power of pop culture!

The Revolutionary War Prize Cases and the Development of Diversity Jurisdiction in U.S. Law

Deirdre Mask, London School of Economics & Political Science, and Paul MacMahon, London School of Economics, Law Department, are publishing The Revolutionary War Prize Cases and the Origins of Diversity Jurisdiction in volume 633 of the Buffalo Law Review (2015). Here is the abstract.
Why did the Framers give the federal courts diversity jurisdiction? This Article brings to light a crucial but forgotten source of inspiration for diversity jurisdiction, showing that previous explanations ignore the Framers’ experience judging prize case appeals during the Revolutionary War. Scholars have largely rejected the view that the Framers anticipated state bias in diversity litigation, arguing, for example, that diversity jurisdiction was designed to provide a high-quality venue for commercial disputes. Yet placing the Framers’ decision in the context of their lived experience as judges in contentious "Prize Cases" during the Revolutionary War rehabilitates the geographic bias theory. During the War, the Continental Congress relied heavily on privateers — private citizens, who, with the financial support of individual states or Congress, were authorized to capture British ships. At George Washington’s urging, the Continental Congress set up an adjudicatory committee within Congress itself, the Committee on Appeals, to resolve appeals from prize cases in the state courts. The Framers’ taste of judicial work exposed them to contentious interstate disputes — a preview of what diversity litigation would look like in the new country. We argue that this experience, almost entirely ignored by contemporary scholars, directly inspired the otherwise perplexing decision to include diversity jurisdiction in Article III.
Download the article from SSRN at the link.

August 17, 2015

The Internet as a Catalyst For Change In the Search for Legal Information

Amy E. Sloan, University of Baltimore School of Law, has published The 95 Theses: Legal Research in the Internet Age at 20 Legal Writing Journal 45 (2015). Here is the abstract.
Martin Luther is largely credited with starting the Protestant Reformation in 1517 with The 95 Theses, his work challenging the Catholic Church’s practice of selling indulgences. The Reformation had many causes, but the invention of the printing press was a primary catalyst for change. The printing press made the Bible and other forms of religious literature available to a much wider audience than had previously had access to this information. Legal research does not rise to the level of a religious experience. With apologies to Luther, however, I offer the following thesis about legal research today: The availability of legal information on the Internet has led to the law’s equivalent of the Protestant Reformation. As legal information has become available to more people, legal research and the roles of lawyers have been transforming as well.
Download the article from SSRN at the link.

The Australian High Court's Use of Foreign and International Materials In Constitutional Decisions

Elisa Arcioni, University of Sydney Faculty of Law, and Andrew McLeod, Lady Margaret Hall, University of Oxford & University of Sydney Faculty of Law, have published Cautious but Engaged -- An Empirical Study of the Australian High Court's Use of Foreign and International Materials in Constitutional Cases at 42 International Journal of Legal Information 437 (2015). Here is the abstract.
The issue of whether constitutional courts should refer to foreign law has become the subject of debate and discussion around the world. In the US in particular, a heated judicial and academic debate on the issue has spilled into a political controversy extending to the introduction of federal and State Bills to prohibit judicial citation of foreign law and to Congressional proposals for such citation to be an impeachable offence. The use of foreign law, for some, is in tension with national sovereignty: one Congressman claimed that citation amounted to a surrender of lawmaking 'to the control of foreign courts and foreign governments', and potentially represented the start of an internationalist normative debates about foreign law play at best a muted role in Australian jurisprudential and political life, and we do not directly engage with them here. Rather, we consider to what extent, and how, Australian High Court judges engage with foreign and international legal materials in constitutional cases. In this article we track the frequency of citation in constitutional cases and provide a substantive analysis of the ways in which those materials are used. We find that the citation of foreign and international materials in constitutional cases is widespread, though it is issue-dependent and varies in both quantity and kind between judges. In general, the Court shows a willingness to consider foreign approaches to constitutional questions, even when they are ultimately found not to be directly applicable in the Australian context. Unsurprisingly, the Court's use of foreign precedents leans heavily towards nations with which it shares a common law heritage. We suggest that the highly context specific nature of constitutional law remains a significant factor shaping the Court's approach, and that this creates a barrier to the direct importation of foreign materials.
Download the article from SSRN at the link.