January 31, 2016

A Crime Novelist's Interesting Blog

ICYMI: Martin Edwards' blog "Do You Write Under Your Own Name?" is a brisk and wonderful collection of little essays on crime novels (many of them now forgotten), new publications, new movies, and other things he finds interesting from the world of crime and popular culture. Worth reading. Mr. Edwards is an author of crime fiction himself as well as an anthologist. More here at his website.

January 30, 2016

Resume Fraud and "Suits," the Series

Lorraine Duffy Merkl writes about puffing your experience, resume fraud, and the tv series Suits here, for the New York Observer.

January 29, 2016

Mathematics, Crime, and Los Angeles

Inside Higher Ed notes the publication of  L. A. Math: Romance, Math, and Crime in the City of Angels (Princeton University Press, 2016)  a book by James A. Stein, is a collection of short stories which combines, well, romance, math, and crime. Here's a description of the contents.

Move over, Sherlock and Watson—the detective duo to be reckoned with. In the entertaining short-story collection L.A. Math, freelance investigator Freddy Carmichael and his sidekick, Pete Lennox, show how math smarts can crack even the most perplexing cases. Freddy meets colorful personalities throughout Los Angeles and encounters mysterious circumstances from embezzlement and robbery to murder. In each story, Freddy’s deductive instincts—and Pete's trusty math skills—solve the crime.
Featuring such glamorous locales as Beverly Hills, Brentwood, Malibu, and Santa Barbara, the fourteen short stories in L.A. Math take Freddy and Pete through various puzzles and challenges. In "A Change of Scene," Freddy has to figure out who is selling corporate secrets to a competitor—so he uses mathematical logic to uncover the culprit. In "The Winning Streak," conditional probability turns the tables on an unscrupulous bookie. And in "Message from a Corpse," the murderer of a wealthy widow is revealed through the rules of compound interest. It’s everything you expect from the City of Angels—A-listers and wannabes, lovers and lawyers, heroes and villains. Readers will not only be entertained, but also gain practical mathematics knowledge, ranging from percentages and probability to set theory, statistics, and the mathematics of elections. For those who want to delve into mathematical subjects further, the book includes a supplementary section with more material.

Filled with intriguing stories, L.A. Math is a treat for lovers of romance, crime, or mathematics.

So, the premise is that math can be fun? Ok, I'll bite.

Kent Summer School in Critical Theory To Be Held in Paris, June 13-24, 2016

From Maria Drakopoulou and Connal Parsley, CoDirectors, University of Kent Centre for Critical Thought, Kent Law School

Kent Summer School in Critical Theory will run for the second time this year, in Paris, 13-24 June 2016. Our website has just gone live, and we invite you pay us a visit: kssct.org.

This summer school for early career researchers and doctoral students aims to create a unique pedagogical experience, enabling leading critical thinkers to conduct an intensive 2-week seminar with members of a new generation of critical scholars.

Applications are now open to attend the summer school, and you will find application instructions on the website.

The teachers of the intensive seminars in 2016 will be Professor Samantha FrostProfessor James Martel, and Professor Bernard Stiegler. The website also contains information about the seminars, in addition to the school's other events.

January 27, 2016

Lloyd on Wordsworth and Good Legal Thinking

Harold Anthony Lloyd, Wake Forest University School of Law, has published Good Legal Thought: Forms, Frames, Choices, and Aims. Here is the abstract.
Langdellian “science” and its “formalism” ignore ways form permits and even creates freedom of choice. For example, as Wordsworth notes, though the weaver is restricted by what his form of loom can weave, the weaver may nonetheless choose what and how he weaves. Furthermore, the loom creates weaving possibilities that do not exist without it. Such freedom alongside form is often lost on lawyers, judges, and teachers trained primarily in Langdellian redacted appellate cases where “facts” and other framed matters often wrongly appear as simply given. Similarly, in the context of their redacted appellate cases, many current students may only see constraint in IRAC (Issue-Rule-Application-Conclusion) and other thought forms rather than the fastidious freedoms such forms both provide and create. Overlooking such freedoms is not only misleading in itself. It also misses the need to study how such freedoms are and should be exercised. When facts are simply presented as “given” and strategic and other choices go unrecorded and unnoticed in redacted appellate opinions, no thorough analysis of these overlooked subjects can occur. This is extremely troubling since such overlooked subjects are at the very heart of the lawyer's craft. Attempting to remedy such Langdellian shortcomings, this article explores, among other things, five basic levels of thought and the framing choices in such levels of thought: references, issues, rules, application of rules, and conclusions. Though often merely taken as “given” in redacted appellate opinions, a good grasp of reference assures that parties are in fact talking about the same matter or matters (the “reference”). It also increases the likelihood of ascertaining and properly framing all the relevant “facts” in a manner reasonably and ethically consistent with a client’s real interests. Similarly, focusing on flexibility of issue framing both brings necessary focus on what is important in the reference and, to the extent reasonable and ethical, again increases the likelihood of frames most consistent with a client’s real interests. A good grasp of applicable rules and how to frame and apply them on its face increases the likelihood of representing a client well. A good grasp of conclusions and how to frame and hedge them also does the same. Grasping the multilevel complexities in play at these multiple levels pushes us beyond briefing redacted appellate cases to the much more difficult and stimulating work of exploring and teaching good legal thought at all its levels. Legal writing professors are pioneers in this regard and others in the academy can learn much from them.
Download the article from SSRN at the link.

Jeffrey Toobin On Seeing His Book Adapted For TV

Jeffrey Toobin discusses the adaption of his book The Run of His Life for the series American Crime Story with Slate Magazine here.

Reid on the Jurisprudence of the Forced Share in the Ancient World

Charles J. Reid, Jr., University of St. Thomas (Minnesota), School of Law, is publishing The Jurisprudence of the Forced Share in the Ancient World: From Cicero to Justinian? in Donations: Strategies and Relations in the Latin West/Nordic Countries From the Late Roman Period Until Today (Routledge: Ole-Albert Ronning, Helle Moller Sighe and Helle Vogt, eds., 2016.
This paper is concerned with the origins of the European doctrine of the forced share, according to which parents must set aside at least a portion of their estate for their children. I begin this paper in Late Republican Rome with the adoption by the praetors of the cause of action for setting aside inofficious wills (the querela inofficiosi testamenti) and the enforcement of the Lex Falcidia, the statute establishing the forced share at one-quarter of the estate. I then consider the emergence of the vocabulary used to justify this mandatory estate practice, focusing in particular on the richly-textured noun pietas. I examine the social background of this practice, looking in particular at ancient concepts of marriage and family. I review Pliny the Younger's criticism of testators who neglected the interests of family members. And I close with the great legal reforms of the law of wills by the Emperors Theodosius II and Justinian.
Download the essay from SSRN at the link.

Barnhizer On Political Correctness and Freedom of Speech

David Barnhizer, Cleveland-Marshall College of Law, has published 'Something Wicked This Way Comes': Political Correctness and the Reincarnation of Chairman Mao as Cleveland-Marshall Legal Studies Paper No. 291. Here is the abstract.
There could not possibly be any parallel between the actions of Mao Tse Tung’s young Red Guard zealots and the intensifying demands of identity groups that all people must conform to their version of approved linguistic expression or in effect be condemned as “reactionaries” and “counter-revolutionaries” who are clearly “on the wrong side of history”. Nor, in demanding that they be allowed to effectively take over the university and its curriculum while staffing faculty and administrative positions with people who think like them while others are subjected to “re-education” sessions that “sensitize” them into the proper way to look at the world’s reality, should we judge students and protesters such as those who submitted fifty Demands to the University of North Carolina to be in any way akin to the disastrous, repressive, immature and violent members of the Red Guard who abused China between 1966 and 1976. Nonetheless, though it would be unfair to compare the two movements, the Cultural Revolution does send out a warning we should perhaps spend a little time thinking about lest we repeat some of its errors. A brief descriptive capsule appears below. “The first targets of the Red Guards included Buddhist temples, churches and mosques, which were razed to the ground or converted to other uses. Sacred texts, as well as Confucian writings, were burned, along with religious statues and other artwork. Any object associated with China’s pre-revolutionary past was liable to be destroyed. In their fervor, the Red Guards began to persecute people deemed “counter-revolutionary” or “bourgeois,” as well. The Guards conducted so-called “struggle sessions,” in which they heaped abuse and public humiliation upon people accused of capitalist thoughts (usually these were teachers, monks and other educated persons). These sessions often included physical violence, and many of the accused died or ended up being held in reeducation camps for years.” I never thought I would be starting off an analysis by citing a description of the Red Guard’s re-education and thought control actions in Mao Tse Tung’s 1966-1976 Cultural Revolution and the words of Lesley Gore’s “You Don’t Own Me” song. But in the context of what is going on in American and European societies involving the comprehensive strategy to control freedom of speech through formal and informal mechanisms of power, Gore’s slightly edited (for length) language seems highly appropriate. Her in-your-face paean to independence of thought and action captures what we face.
Download the article from SSRN at the link.

January 26, 2016

Baude on A Source Guide to Early American Constitutional History

William Baude, University of Chicago Law School, has published Early American Constitutional History: A Source Guide. Here is the abstract.
This is a concise guide to source materials relevant to late 18th-century and early 19th-century constitutional history in the United States, often with accompanying reflections about using these sources in historical and legal scholarship. The guide aims to be useful to those who are just entering the field as well as to more established historians and lawyers who want to keep up with newly available sources. Further suggestions are welcome.
Download the article from SSRN at the link.

Hurd on Views of International Law

Ian Hurd, Northwestern University Department of Political Science, is publishing Enchanted and Disenchanted International Law in Global Policy (December 2015). Here is the abstract.
Scholars and activists commonly see international law as occupying a privileged normative and political position in world politics, where international legal institutions are assumed to advance various important goals, including international stability, human justice, and even global order as a whole. I explore this attitude toward international law, which I call an ‘enchanted’ view, and contrast it to the ‘disenchanted’ alternative. Where the enchanted view presumes the normative valence and political wisdom of following international law, the disenchanted approach treats these as open questions for inquiry and discussion. The disenchanted approach is more empirically minded, and more politically open, than the enchanted, and leads to a distinct research program on legalization in international affairs — one that is attentive to the politics of law, the connections between law and power, the ambiguity that exists between legality and policy wisdom.
Download the article from SSRN at the link.

January 25, 2016

Reid on the Jurisprudence of the Forced Share: The High and Late Middle Ages

Charles J. Reid, Jr., University of St. Thomas (Minnesota) School of Law, is publishing The Jurisprudence of the Forced Share: The High and Late Middle Ages in Donations: Strategies and Relations in the Latin West/Nordic Countries From the Late Roman Period Until Today (Routledge: Ole-Albert Ronning, Helle Moller Sighe & Helle Vogt, eds., 2016). Here is the abstract.
This paper represents a continuation of themes I explored in The Jurisprudence of the Forced Share in the Ancient World. The article is divided into four main sections. In the first two sections, I examine three basic sets of ideas that would prove of vital significance to medieval lawyers as they justified the forced share. These were: (1) the ideal of reciprocity that came to be expressed in the noun pietas; (2) the relationship of natural law and natural rights to the moral obligation to provide for one's young; and (3) the expectation that all families would be characterized by an ideal the scholastic writers called natural love. The second two sections of the paper then explore principally the writings of the medieval canon lawyers and focus on several related themes: (1) the reemergence of the idea of testamentary freedom and the corresponding effort to restrain it through the mechanism of the forced share; (2) the jurisdictional claims of the Church to interpret wills and to judge testamentary disputes; and (3) the justification of the forced share as the final legal expression of pietas, reciprocity, natural love and natural rights.
Download the essay from SSRN at the link.

A New Legal Drama From NBC

NBC will be offering up another law-related drama, perhaps for the fall. This time, it's a soap (sorry, I should probably call it something else, like a legal relationship drama--LRD). Miranda's Rights (get it?) will center on a nearly thirty-year-old attorney who needs "redemption" after some sort of "sex scandal" and thinks she'll get it by partnering with some other (maybe younger) lawyers in a new firm. I can't quite tell from the limited information available from The Hollywood Reporter whether Miranda Coates, the "Miranda" of the title, is Hollywood's version of "ancient" at 28 compared to the "millennials" who are starting the firm. If so, that would be really sad.

NBC is also picking up Chicago Law, a fourth spinoff from Dick Wolf, as a scripted legal show, so legal series mavens may have a lot to choose from this coming year. 

The Writing On the Walls

Allison Meier (Hyperallergic) discusses Matt Champion's new book Medieval Graffiti: The Lost Voices of England’s Churches (Ebury Press), and his discoveries of pre-Reformation marks and messages from the non-aristocracy on medieval church walls. These messages, says Dr. Champion, head of the Norfolk Medieval Graffiti Survey, tell us a lot, both about medieval belief and about social interaction. He also notes that these carvings, previously assumed to be the work of non-mainstream worshippers like Wiccans, for example, are actually more likely to be examples of medieval understandings of the world around them. "'[T]he fact that such finds often lead to them being ascribed to modern Wiccans, devil worshippers or hoaxers is a sign of just how mentally remote we are today from the commonplace beliefs of the medieval church.'"

Cross-posted to Law and Magic Blog.

January 24, 2016

A Symposium on the Intersection of Art and Law in the Work of Félix González-Torres

Upcoming at the de la Cruz Collection, Miami, Florida, February 11, 2016: Poetic Justice: On the Intersection of Art and Law in the Work of Félix González-Torres Here's a description of the symposium from the website.
Since the beginning, Félix González-Torres' art and activist work have received substantial academic and institutional attention. However, in the last few years, there has been a growing scholarly interest in González-Torres' art works and the ways in which they are informed by law and juridical structures. Through the intersection of conceptual art strategies and legal instruments, González-Torres' art works complicate and expand our understanding of what constitutes the art object, the ownership, exhibition and dissemination of art, and the public's relationship to art and art institutions. This symposium brings together scholars with backgrounds in law, art history and cultural history, as well as collectors and contemporary artists, in order to analyze the work of Félix González-Torres and its impact on the emerging field of art and law. This will be a unique opportunity for researchers, art historians, curators, artists, students and lawyers interested in art and law and the work of Félix González-Torres to meet and discuss their mutual interests. The symposium is organized by Cornell Law School and the Art & Law Program and the de la Cruz Collection.

To register, please click HERE.
Via @Clancco_ArtLaw.

January 22, 2016

Lloyd on Law as Trope

Harold Anthony Lloyd, Wake Forest University School of Law, has published Law as Trope: Framing and Evaluating Conceptual Metaphors. Here is the abstract.
Though perhaps better known for their stylistic use of metaphor, lawyers’ substantive use of metaphor drives the law. Like other disciplines, law requires its categories and thus its metaphors. For utility’s sake, lawyers put similar things in categories and thereby treat them as categorically the same. However, good lawyers understand that such categorical equating is not literally true since nothing truly is what it is not. Instead, good lawyers understand the metaphorical nature of categorization. Good lawyers also understand the need to identify both the conscious and unconscious metaphors in play in a given situation. They understand the need to avoid uncritically accepting others’ metaphors, categories, and narratives, the need where possible to construct metaphors, categories, and narratives that benefit one’s case, and the need to be aware of what operative metaphors, categories, and narratives highlight and conceal so that one can proceed accordingly and avoid surprise. Good lawyers further understand that predictability, precedent, simplicity, and coherence in the broadest sense not only help them evaluate their own categories and other metaphors and the “flexible” logic of metaphor discussed in this article. These tests also help good lawyers evaluate the categories and metaphors of others. Finally, good lawyers understand that metaphor is more than powerful kennings. Metaphor is more than blood as “raven-wine,” more than raven as “battle-gull.” Metaphor lives in and generates blood, flesh, and bone of that living thing we call the law.
Download the article from SSRN at the link.

January 21, 2016

Ferejohn and Hills on Publius's Political Science

John A. Ferejohn and Roderick M. Hills, Jr., both of NYU Law School, have published Publius's Political Science. Here is the abstract.
“Publius,” the collective author of The Federalist, was not just a polemicist and normative theorist but also a political scientist. We argue that the political psychology, and institutional predictions that comprise The Federalist are best understood as political science, because the predictions could be – and were – revised in light of “that best oracle of wisdom, experience” (Federalist 15). After outlining some “maintained hypotheses” about human nature that undergird The Federalist, we describe three respects in which James Madison revised, in light of post-1790 experience, Publius’ institutional predictions. The Federalist pressed the view that the national legislature would be the most powerful branch, requiring the Constitution to bolster the implied powers of the executive, limit states’ power, and dampen direct popular participation by the People themselves. After the successes of Hamilton’s initiatives demonstrated the potency of the Presidency during the 1790s, Madison radically revised all three of these institutional predictions, calling for limits on implied presidential powers, a broad construction of states’ reserved authority, and, most dramatically, popular participation through disciplined political parties. Rather than view these revisions as abandoning the political theory of The Federalist, we argue that Madison and Hamilton both retained Publius’s foundational normative assumptions, while revising their predictions about institutional behavior in light of the empirical evidence – precisely the proper response of an empirically oriented political scientist. In this sense, Hamilton’s and Madison’s post-ratification breach was less a retreat by either from Publius’ political theory and more a confirmation of the status of The Federalist as, in part, political science revised in light of political experience.
Download the article from SSRN at the link.

January 20, 2016

Critical Legal Conference, 2016: Call For Stream Proposals Now Open

Via James Martel:

Kent Law School
1st – 3rd September

Turning Points

The Call for Stream Proposals is OPEN NOW – please send proposals of no more than 500 words along with short bios of the stream organisers to klsclc2016@kent.ac.uk. The Call for Stream Proposals closes 7 March 2016.
“…there are no witnesses to changes of epoch. The epochal turning is an imperceptible frontier,
bound to no crucial date or event.” 
The present is notoriously difficult to diagnose. Are we living at a decisive turning point for global and European history, politics and law? Are we witnesses to a new epoch? Or perhaps we just have a bad case of “presentism”? The Critical Legal Conference 2016 will open a forum for critical reflection on precarious political situations, particularly that of Europe in a global context - an apposite theme for a critical conference at the University of Kent, ‘the UK’s European University’ and a point of origin for the CLC.
Taking a global and historicised view of contemporary Europe and its intellectual and political traditions (as well as an interrogative stance on their centrality), we anticipate that this year’s CLC will enable a creative response to some of the many problems of our collective present. The difficulty in thinking the present lies partly in its immediacy, and partly in the way in which spaces for that thinking are themselves precarious, colonised, dis-placed, degraded, recast or simply made untenable. From individuals’ housing, employment and migration experiences to the broader question about the intensification or disintegration of the European political project, are life’s very objects and experiences now peculiarly shaped by precarity?
Law forms part of the architecture of precarity, shaping both its production and governance, whether through specific rules and regulations relating to welfare provision, housing law or the structuring and regulation of financial markets; or through changing images and enactments of justice, (fragmented) genealogies, and shifting understandings of modernity. One approach within the critical legal tradition has been to expose these architectures: to show how it produces inequity, to demonstrate its contingencies, to trace its genealogies, to question law’s production of a normative order of life. In this sense it might be said that the role of critique is to render law itself precarious. What is the contemporary nature, role and position of academic work generally, in relation to political life and cultural and intellectual history? Are we post-human? Post-Europe? Post-law? Post-critique? And what about the core critical legal concerns: law, justice and ethics?
True to the tradition of the CLC, we hope participants will approach these general provocations through a rich plurality of critical and radical thematics and interdisciplinary approaches.
Confirmed Plenary Speakers:

The Call for Stream Proposals is OPEN NOW – please send proposals of no more than 500 words along with short bios of the stream organisers to klsclc2016@kent.ac.uk. The Call for Stream Proposals closes 7 March 2016. The Call for Papers and Panels will be opened in March when streams are announced – and as ever there will be a general stream. *Conference registation will open via the webpage shortly*: http://www.kent.ac.uk/law/research/clc-2016/index.html
We also invite participants to curate screenings, performances, happenings and other creative formats at the conference. Please contact us at klsclc2016@kent.ac.uk with your plans – we will do our best to facilitate them.

Connal Parsley, Nick Piška and the KLS CLC Committee

Papke on American Lawyer and Courtroom Comedies

David Ray Papke, Marquette University Law School, is publishing American Lawyer and Courtroom Comedies in Oxford Research Encyclopedias (forthcoming). Here is the abstract.
This essay surveys the surprisingly large amount of law-related American popular culture that is comedic. Comedies in general are narratives in which the characters’ dilemmas will work themselves out, and readers and viewers of comedies know in advance that no great disaster will interfere with their enjoyment of a comedic work. Comedies featuring portrayals of amusing lawyers and/or accounts of hilarious trials are common in inexpensive literary works, Hollywood films, and television series, although these media have different imperatives and proffer various types of comedy. Overall, lawyer and courtroom comedies are intended to entertain and distract, but some lawyers and courtroom comedies also appreciate the public’s resentment of the legal profession and the courts and intentionally satirize these important and much-valorized legal institutions.
Download the essay from SSRN at the link.

Al-Alosi on Young People as Creators of Sexually Explicit Online Fan Fiction and the Australian Legal Regime

Hadell Al-Alosi, University of New South Wales, Faculty of Law, has published Young People as Creators of Sexually Explicit Online Material: Fan Fiction and the Law in Australia as UNSW Law Research Paper No. 2015-74. Here is the abstract.
Debate concerning the role of traditional media in the sexualization of young people tends to view young people as a special group of consumers who require protection from some media content and its potential risks. However, with the advent of new media technologies, young people are no longer passive consumers of sexualized representations, but also generators of sexually explicit material that is created and shared among their peers. This challenge has raised concern among those adults who remain ambivalent, or perhaps in denial, about the possibility that young people are sexually curious. Accordingly, this essay seeks to challenge the view that young people are simply passive recipients of sexual messages in the media by highlighting the role that young people play as producers of media content, in particular through the production of fan fiction. This essay investigates the potential criminalization of young people whose online communications about sex can be classified as criminal acts under Australia’s child abuse material legislation. Interviews were conducted with five members of the judiciary to ascertain how this kind of communication might be viewed in a court of law. This was conducted as part of larger research project that seeks to analyze how Australia’s child abuse material legislation may impact on the sexual self-expression of young people themselves.
Download the essay from SSRN at the link.

Nancy Drew, 2.0

The Hollywood Reporter notes that CBS will offer an updated series from Joan Rater and Tony Phelan, called Drew, based on the Nancy Drew character. Nancy, who according to a CBS exec "[will] not [be] Caucasian," will be in her 30s and will work for the NYPD.

Here's a quick update on Nancy's pop culture past, also from the Hollywood Reporter.

A short bibliography on Nancy Drew:
C. Billman, The Secret of the Stratemeyer Syndicate: Nancy Drew, the Hardy Boys, and the Million Dollar Fiction Factory (Ungar Publishing, 1986).

Susan R. Brooker-Gross, Landscape and Social Values in Popular Children's Literature: Nancy Drew Mysteries, 80 Journal of Geography 59 (1981).

Rediscovering Nancy Drew (Carolyn Stewart Dyer and Nancy Tillman Romalov eds.; Iowa City: University of Iowa Press, 1995).

Melanie Rehak, Girl Sleuth: Nancy Drew and the Women Who Created Her (NY: Harcourt, 2005).

Keydar on Ethics and Storytelling in the Search for Justice

Renana Keydar, Hebrew University, Faculty of Law, and Stanford University, School of Humanities and Sciences, has published Rethinking Plurality: On Ethics and Storytelling in the Search for Justice. Here is the abstract.

The essay takes as its starting point the observation that contemporary
legal mechanisms and cultural institutions confront mass atrocity by turning to multiple acts of storytelling by the survivors. As I show, judicial tribunals, truth commissions, museums, historical archives, and film and literature have replaced the once-singular, authoritative voice of the Storyteller with a choir comprising a multitude of narrators and narratives of survival. Focusing on two historic legal processes in which survivors' storytelling played a key role, the Eichmann trial (1961) and the South African Truth and Reconciliation Commission (1995), I explore the underlying condition of plurality and its ethical implications from a joint perspective of law and the humanities.
Download the article from SSRN at the link.

A New Collection of Law-Themed Short Stories

Elizabeth Villiers Gemmette has published Law in Literature: Legal Themes in American Stories: 1842-1917 (Buckingham Group, 2015). Here is a description of the book's contents.

The twenty stories included in this anthology were all written by American authors, and all of them were first published in the seventy-five years between 1842 and 1917. What the stories have in common is that each of them explores legal themes and issues.

In this volume, stories written by women include "A Jury of Her Peers" by Susan Glaspell, Life in the Iron-Mills by Rebecca Harding Davis, and "The Godmother" by Kate Chopin. Stories written by black writers include "The Lynching of Jude Bensen" by Paul Lawrence Dunbar, The Heroic Slave by Frederick Douglass, and "The Wife of His Youth" by Charles W. Chestnutt. Other writers include Melville Davisson Post, Edgar Allan Poe, Herman Melville, Richard Harding Davis, Jack London, Bret Harte, O'Henry, Hamlin Garland, and Willa Cather.

Many of the characters in the stories included in this anthology are despondent, depressed, and desperate. Yet, many of them are defiant, determined, and dedicated to helping themselves and others to overcome the deplorable conditions of their lives. Two words capture the struggles of those characters. Those two words are from "Bartleby" by Herman Melville: "Ah, humanity!"

January 19, 2016

True Crime Series and the "CSI Effect"

Kenny Herzog for Slate (via Vulture) on the "CSI" effects of Making a Murderer and other true crime series. He notes that many experts are doubtful that such series will have much impact on juror thinking.

When it comes to SerialThe Jinx, or Making a Murderer, it’s more likely they merely confirmed viewers’ skeptical tendencies rather than awakened them. After all, jurors—like all people—are encoded with a lifetime of stimuli that have shaped their worldview, minimizing the likelihood that recently ingested media would directly radicalize their biases. So by the time a trial’s commenced, even the most cynical juries will likely allow a measure of deference to the ensuing process.

Interesting reading.

Ganz on Insanity and Responsibility in Dr. Jekyll and Mr. Hyde

Melissa J. Ganz, Marquette University Department of English, has published Carrying On Like a Madman: Insanity and Responsibility in Strange Case of Dr. Jekyll and Mr. Hyde at 70 Nineteenth Century Literature 363 (December 2015). Here is the abstract.
This essay reads Robert Louis Stevenson’s Strange Case of Dr. Jekyll and Mr. Hyde (1886) alongside medico-legal debates about the nature and scope of insanity, arguing that the novel seeks to shore up the idea of individual responsibility in Victorian society. The cognitive test of insanity that emerged from the M’Naghten case of 1843 deemed a person legally irresponsible for his acts if, due to a defect of reason resulting from mental disease, he was unable to perceive the nature and quality of his acts or to know that they were wrong. Alienists such as James Cowles Prichard and Henry Maudsley, however, argued that this test failed to acknowledge the existence of affective and volitional disorders such as moral and impulsive insanity. In their treatises, they urged judges to adopt a more permissive standard — an ‘‘irresistible impulse’’ test — that deemed accused criminals ‘‘mad’’ if they could not control their actions, even if they knew what they were doing was wrong. While the novel appears to be sympathetic to the position articulated by Prichard and Maudsley, I argue, it ultimately shows the dangers of broadening the definition of insanity. To recognize the idea of irresistible impulse as the basis of an insanity defense, Stevenson suggests, is to confound the distinctions between freedom and compulsion, deviance and disease. Contesting the use of emotional insanity to acquit educated professionals like Jekyll, Stevenson holds the doctor guilty of murder.
Download the article from SSRN at the link.

Heinze on Political and Social Mythmaking In Early Modern Drama

Eric Heinze, Queen Mary University of London, School of Law, is publishing Selecting the Memory, Controlling the Myth: The Propaganda of Legal Foundations in Early Modern Drama in Injustice, Memory, and Faith in Human Rights (K. Chainoglou and B. Collins, eds.; Ashgate, 2016). Here is the abstract.
Notwithstanding age-old aspirations to ground law in rational thought, the constitutive role of myth perennially resurfaces. Political mythology is always a reconstruction of historical memory, and that process becomes crucial at times of systemic political and legal re-constitution. We witness such a political moment in Western Europe in the late 16th and 17th centuries with the emergence of political modernity and the nation state. It is no accident that, in those years, theatre becomes a dominant art form, in which historical memory becomes ritually re-enacted to crystallise the political and social myths which will furnish European legal regimes with value systems. The Shakespearean Henry IV: Part One and The Tempest, along with Jean Racine’s Andromaque, are examined as evidence for that transformation from memory into myth, and history into normativity.

Download the essay from SSRN at the link.

VanderVelde on the Dred Scott Case in Context

Lea S. VanderVelde, University of Iowa College of Law, has published The Dred Scott Case in Context at 40 Journal of Supreme Court History 263 (2015). Here is the abstract.
This essay concisely summarizes several new discoveries about the Dred Scott case. It argues that only by examining three broader contexts does the case make sense and can its significance be seen. Contextual examination is necessary because the stipulated facts taken at face value make little sense. For example, how could aged slave bring a lawsuit in the first place and sustain it for eleven years against a master who lived in far-away New York? This seeming irrationality has led to speculation about motives which is, in fact, wrong. The case can only be explained by resort to three contexts in which the case is embedded. They are: 1) the national geography of westward migration, 2) local Missouri law, and 3) the parties’ intimate relationships to persons, who were not named in the case. Theoretically, this essay argues that these contexts are useful, if not essential, to understanding most high-profile, high-significance lawsuits, like Dred Scott v. Sanford. The first context highlights the larger role that slaves played in the nation’s expansion. There was a steady stream of slave petitioners who satisfied the criteria for freedom by having lived on free soil (freedom-by-residence) before arriving at the St. Louis courts in a slave state. The second context, local law, demonstrates certain aspects of the Missouri statute authorizing freedom suits. In many circumstances, Missouri law provided petitioning slaves with lawyers and a series of successful suits under that law created local expectations that slaves could sue for freedom and win. These two contexts demonstrate that the Scotts should have won the case easily, under Missouri law in the Missouri courts, until the Missouri Supreme Court changed course. The third context highlights other people who had a stake in the outcome. On the plaintiffs’ side, changing the incentives, were Mrs. Dred Scott (Harriet) and the Scotts’ daughters. Harriet Scott’s status as a mother rendered her more legally relevant to the family’s stability because the daughters’ legal status hinged on the determination of their mother’s status. So recognizing Mrs. Scott and the children’s stake in the case helps explain the litigants’ tenacity. Behind the defendant, John F. A. Sanford was his extended family, the slave-holding Chouteaus, who favored litigating to the end. Recognizing these hidden persons changes the incentives. These persons could exercise influence on whether the case settled.
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Thomas On The "Radical Conscience" of Nineteenth Century Feminism

Tracy A. Thomas, University of Akron School of Law, has published The 'Radical Conscience' of Nineteenth-Century Feminism as chapter one of Elizabeth Cady Stanton and the Feminist Foundations of Family Law (New York University Press (2016). Here is the abstract.
This book analyzes the feminist and legal thought of Elizabeth Cady Stanton on gender equality in family as to marriage, divorce, marital property, domestic violence, reproductive control, and parenting. It reveals Stanton's comprehensive demand for systemic legal reform that challenges conventional depictions of the limitations of early feminism, of the development of family law, and women's alleged acquiescence in domestic subordination. Elizabeth Cady Stanton was the principal feminist thinker, leader, and “radical conscience” of the nineteenth-century woman’s rights movement. Stanton initiated the women’s rights movement on July 19, 1848, in Seneca Falls, New York, where she issued her feminist manifesto, the “Declaration of Sentiments,” demanding women’s right to vote. This is generally all that history has remembered of Stanton. Her Declaration, however, demanded seventeen other rights for political, religious, social, and civil rights equality. These included the right to public office, marital property, divorce, education, employment, reproductive control, and religious autonomy. As Stanton explained, the institutions of government, church, family, and industrial work constituted “a fourfold bondage” of women, with “many cords tightly twisted together, strong for one purpose” of woman’s subordination. They were all intertwined, so that “to attempt to undo one is to loosen all.” As Stanton later explained, to break down this complexity required women to have “bravely untwisted all the strands of the fourfold cord that bound us and demanded equality in the whole round of the circle.” Holistic reform was required to break down the complex system of women’s oppression. The family was one centerpiece of Stanton’s feminist agenda. The family, governed by patriarchal laws and sentimental gender norms, created and perpetuated women’s inferiority. “If the present family life is necessarily based on man’s headship,” Stanton argued, “then we must build a new domestic altar, in which the mother shall have equal dignity, honor and power.” The private sphere of the family was not segregated from the public sphere, as both nineteenth-century suffrage reformers and twentieth-century feminists often argued, but instead was intertwined with the other institutional strands strangling equality. As a result, radical concrete change to the family institution was required in the forms of egalitarian partnerships, economic rights, free divorce, and maternal autonomy. Stanton’s commitment to women’s equality in marriage and the family was longstanding -- from Seneca Falls to her last writings. As Stanton said, she “remained as radical on the marriage question at the age of eighty-six as [she] had been a half a century earlier.” Stanton’s family reforms seem less shocking today because most of them have become law. Her proposals to reconstruct marriage and the family, detailed in this book, are now mainstream. Women have separate and joint marital property rights. Spouses inherit equal shares of estates when one partner dies without a will. Common law marriage is prohibited in most states, and civil marriage requires procedural safeguards. Divorce is available for irreconcilable differences or for misconduct equally applicable to both spouses. The law supports domestic violence protections, reproductive choice, and maternal custody. Recovering Stanton’s feminist thinking on the family reveals the longevity and persistence of women’s demands for family equality. Contrary to popular wisdom, these feminist ideas were not invented in the 1970s, but instead reach back more than a century earlier as part of the original conceptualization of women’s rights. This longer perspective bolsters the truth and credibility of such feminist demands, dispelling their characterization as a modern anomaly and demanding legitimization and consideration in the law. As these issues of family, marriage, work/life balance, pregnancy, and parenting continue to challenge the law and confound feminism, Stanton’s work adds historical evidence of important principles that should be part of the legal equation. Her work shows that feminism and the family have not been historically in opposition, as we usually think. To the contrary, feminists have existed not apart from the family, but within it. Thus, understanding Stanton’s views is critical to understanding both feminism and the family today.

Weinrib on Freedom of Conscience In Wartime

Laura M. Weinrib, University of Chicago Law School, is publishing Freedom of Conscience in War Time: World War I and the Civil Liberties Path Not Taken in volume 65 of the Emory Law Journal. Here is the abstract.
This Article examines the relationship between expressive freedom and freedom of conscience in the formative years of the modern First Amendment. It focuses on efforts by the American Union Against Militarism and National Civil Liberties Bureau — the organizational precursors to the ACLU — to secure exemptions from military service for conscientious objectors whose opposition to American involvement in the First World War stemmed from socialist or radical labor convictions rather than religious scruples. Although such men asserted secular, ethical objections to war, advocates strained to expand the First Amendment’s free exercise clause to encompass them. Concurrently, they sought to import a generalized theory of freedom of conscience into constitutional constructions of freedom of speech and press, within and outside the courts. The conception of liberty of conscience that they advanced, which they linked to an “Anglo- Saxon tradition” of individual rights, clashed with Progressive understandings of democratic citizenship and failed to gain broad-based traction. Civil liberties advocates consequently reframed their defense of political objectors in terms that emphasized democratic dissent rather than individual autonomy. Sympathetic academics and a few judges embraced this Progressive theory of free speech, which celebrated discursive openness as a prerequisite for democratic legitimacy and justified, rather than cabined, the exercise of state power. Even in the interwar period, however, the proponents of this vision remained deeply ambivalent about the courts and generally hostile to individual rights. Although some accepted a limited role for judicial enforcement of the First Amendment’s speech clause, most declined to endorse a court-centered and constitutional right to exemption from generally applicable laws.
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Ramsey on the Original Meaning of "Natural Born" Citizen

Michael D. Ramsey, University of San Diego School of Law, has published The Original Meaning of 'Natural Born'. Here is the abstract.
Article II, Section 1 of the U.S. Constitution provides that no one but a “natural born Citizen” is eligible to be President of the United States. Modern conventional wisdom generally holds that the phrase “natural born Citizen” includes anyone made a U.S. citizen at birth by U.S. statutes or the Constitution. But that conventional wisdom is, on its face, open to doubt. If anyone born a U.S. citizen is eligible, the word “natural” in the eligibility clause is superfluous. Further, in general in eighteenth-century legal language, natural meant the opposite of “provided by statute” (hence “natural law” and “natural rights”). And plausible arguments can be made for a narrow meaning of “natural born” on the basis of either traditional English common law or eighteenth-century continental public law. To this point, modern scholarship has provided no comprehensive response to these objections. Nonetheless, as matter of the Constitution's original meaning, the conventional wisdom is correct. This article defends a broad view of the original meaning of the eligibility clause on the basis of eighteenth-century English parliamentary practice. The key to understanding the eligibility clause is Congress’ power over naturalization, which in turn is best understood by examining parliament’s naturalization power. By the mid-eighteenth-century, Parliament had power to define by statute who would be recognized as a “natural born subject” – a power that, along with others, was called naturalization. In a succession of Acts, Parliament extended this designation (which originally only applied to those born in England) to various categories of people born outside the country. In adopting the phrase “natural born” from English law, the American framers likely understood that they were using a phrase without a fixed definition and subject to legislative alteration through the naturalization power. That conclusion in turn provides sound support for the modern view that Congress can create categories of “natural born” citizens by statute.
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Krygier on Magna Carta and the Rule of Law Tradition

Martin Krygier, University of New South Wales Faculty of Law, is publishing Magna Carta and the Rule of Law Tradition in Department of the Australian Senate Papers on Parliament Series. Here is the abstract.
The argument of this paper has five parts. First I sketch two opposed views, those of Magna Carta Votaries, True Believers, on the one hand, and Sceptics, on the other. I believe both are mistaken, indeed both make the same mistake on the way to opposite conclusions. Second, I introduce a theme that I think is less banal than it sounds (I hope that’s true, because it does sound pretty banal): Everyone is from Somewhere. Then I move from the first part of my title, Magna Carta, to the second part, the rule of law tradition. I treat it in three stages, by saying something first about tradition, then about legal tradition, and finally about rule of law tradition. My conclusion supports two cheers for Magna Carta and three for rule of law tradition.
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