April 30, 2016

The Defenders Being Released on DVD

It's finally happening. The legendary 1960s series The Defenders is finally being released on DVD. Shout! Factory is putting season one of this groundbreaking series, which starred E. G. Marshall and Robert Reed, in our DVD players July 12. Nine discs: 26 and 1/2 hours of great entertainment. Look at the line-up of guest stars below. In mid-summer, I'll be in law and pop culture heaven.

From the website:

On the path to justice, there shall stand The Defenders.
One of television's most respected dramas finally arrives on DVD with The Defenders: Season One. E.G. Marshall and Robert Reed star as Lawrence and Kenneth Preston, a father-and-son team of defense attorneys specializing in complex and challenging cases, many of which explored real-world concerns which still resonate with audiences today.
Created by Reginald Rose (Twelve Angry Men), The Defenders was an Emmy® award-winning series many times over, with a well-earned reputation as one of the most socially conscious series ever to air on television. In addition to its critical accolades, Season One's thirty-two episodes feature guest appearances from a litany of tremendous stars, including Jack Klugman, William Shatner, Ossie Davis, Richard Thomas, Frank Gorshin, Eva Gabor, Robert Duvall, Robert Loggia, Martin Sheen, Julie Newmar, and more.
An unquestionable champion of quality television, The Defenders: Season One is at long last in session. 

April 28, 2016

Levy on Justice Scalia and the Fallacies of Constitutional Textualism

Ken Levy, LSU Law Center, is publishing Why the Late Justice Scalia Was Wrong: The Fallacies of Constitutional Textualism in the Lewis & Clark Law Review (2017). Here is the abstract.
My article concerns constitutional interpretation and substantive due process, issues that played a central role in Obergefell v. Hodges (2015), one of the two same-sex marriage cases. (The other same-sex marriage case was United States v. Windsor (2013). The late Justice Scalia consistently maintained that the Court “invented” substantive due process and continues to apply this legal “fiction” not because the Constitution supports it but simply because the justices like it. Two theories underlay his cynical conclusion. First is the theory of “Constitutional Textualism” — or just plain “Textualism” — which says that the meaning of the Constitution lies entirely within the “four corners” of the document. Second is the theory of “Originalism,” which says that this meaning was fixed at the time of ratification. (Likewise, the meanings of the amendments were fixed at the time of their ratification.) While Justice Scalia helped to inspire a Textualist/Originalist (and anti-substantive-due-process) movement, his Originalism has received far more attention than his Textualism. Since Judge Robert Bork first introduced Originalism to the general public during his Supreme Court nomination hearings in 1987, this theory has ignited passions on all sides and effectively re-framed the entire debate about how to interpret the Constitution. Constitutional scholars, left and right, now define themselves as either for or against Originalism. Meanwhile, Textualism has merely retreated into the background. Part of the reason for this disparate treatment is that many who reject Originalism still consider themselves to be Textualists. They agree with Justice Scalia (and Judge Bork) that the text is all-important. They disagree, however, that its meaning was fixed for eternity at ratification. Instead, they maintain that either the meaning of the text or applications of this meaning to new cases can change as society changes. In this Article, I bring Textualism out of Originalism’s shadow and into broad daylight. I argue that once we dig just a little deeper into the proposition that all of the meaning in the Constitution inheres in its words, we find that this theory simply cannot work. In order to interpret the nation’s foundational document, we must resort to assumptions that it does not explicitly state. (Indeed, even Textualism itself is a theory that the Constitution does not explicitly endorse.) And the notion that “extra-textual” assumptions necessarily inform our interpretations of the Constitution poses a direct and insurmountable threat to Textualism. The Constitution actually requires each judge, when faced with a case concerning the right to privacy, not merely to consider the text but also to anticipate and evaluate the moral, social, and political consequences of both possible decisions before choosing between them. While this position may initially sound counterintuitive, it turns out to be a much more realistic theory of constitutional interpretation than Textualism (and Originalism). I ultimately conclude that, contrary to Justice Scalia, the Constitution most certainly does protect a right to privacy. For what it’s worth, the Obergefell majority agree with me (and oppose Justice Scalia). I aim to show exactly why they are correct.
Download the article from SSRN at the link.

Geva on the Legal History of Checks

Benjamin Geva, Osgoode Law School (York), has published Liability on a Cheque: A Legal History in IANUS 2015, MODULO JEAN MONNET, and as Osgoode Legal Studies Research Paper No. 41 (2016). Here is the abstract.
Cheques are old payment instruments widely used in various parts of the world. In the United Kingdom, they are governed by the Bills of Exchange Act (hereafter, the BEA or ‘Act’), as supplemented by the Cheques Act. As a rule, statutes in common law countries, and hence, their laws of cheques, are modelled on the BEA, though local variations may exist. A statute modelled on the BEA is in force for example in Israel and South Africa. Both are not pure common law jurisdictions. In Canada, cheques are governed by the federal Bills of Exchange Act, modelled on its English predecessor, which is in force also in the civil law province of Quebec. In Australia, cheques were excluded from the coverage of the Bills of Exchange Act, and are currently governed by a specific Cheques Act.
Download the essay from SSRN at the link.

April 27, 2016

Johnson on New York's Ratification of the Constitution

Calvin H. Johnson, University of Texas (Austin) School of Law, has published 'Impost Begat Convention': New York's Ratification of the Constitution. Here is the abstract.
The meaning of the Constitution is said to be set by the ratification debates. The key issue in New York was nationalizing the tax on imports, called the “impost.” The sides as to ratification in New York were set by the debates over the 1783 proposal to give Congress power to impose the impost. The defeated proponents of the 1783 impost in New York became the Federalists in favor of the Constitution in 1788, and the party that had defeated the 1783 impost remained intact to become the Anti-Federalists in opposition to the Constitution in 1788. Nationalizing the state imposts was the key economic necessity for the Constitution as a whole. The first mission of the Constitution, under proponents’ understanding, was to give Congress a tax of its own to make payments on the debts of the Revolutionary War. In the next and inevitable war, Congress would need to borrow from the Dutch again. The impost was considered across the nation as the easiest tax and most appropriate one under the mercantilist economics of the times. If New York legislature had granted the general government the power over the impost, the confederation mode of government under the Articles probably would have survived. The confederate congress would not have been replaced by the self-sufficient, vigorous, supreme national government that the Constitution formed, or at least not until some future crisis. As Hamilton appropriately put it, “Impost Begat Convention.”
Download the article from SSRN at the link.

April 26, 2016

Patrick on Insights from the Behaviorial Sciences on Law and Emotions

Carlton Patrick, University of Miami Department of Psychology, has published A New Synthesis for Law and Emotions: Insights from the Behavioral Sciences at 47 Arizona State Law Journal 1239 (2015). Here is the abstract.
The business of the law is to influence human behavior. To do this effectively, lawmakers must make assumptions about human psychology and how people think. While the behavioral sciences dedicate their entire enterprises to investigating these questions, the law, even at its best, incorporates knowledge from those disciplines in a fragmentary and unsystematic fashion. At its worst, the legal system overlooks or ignores advances in other fields and instead relies on inherited intuitions of behavior that can be both naive and difficult to enumerate with precision. Nowhere is this phenomenon more evident than in the law’s longstanding struggle with emotions, where attempts to codify, incorporate, explain, and otherwise reckon with our feelings have produced many of the law’s most nebulous and imprecise concepts. Using insights from the modern behavioral sciences, especially those informed by an evolutionary approach to human behavior, this article attempts to inform a legal analysis of emotions and address many of the unsettled questions of the Law and Emotions movement.
Download the article from SSRN at the link.

Don't Be (In)visible! The Call for Papers for the 2016 Law and Culture Conference Is Still Open

Don't be In(Visible)!

The call for papers for the 2016 Law and Culture Conference to be held at St. Mary's University September 5-6 of this year is still open but it ends April 30th.  Here's the call.

Law and Culture Conference 2016

Call for papers

What does it mean to be seen? What does it mean to see? What can and cannot, should and should not, be visible? What are the limits of legal sight, and what lies beyond? What can academic and critical study make visible to law? Can (in)visibility produce (in)justice? The Law and Culture Conference 2016 aims stimulate a wide ranging and in-depth discussion on the tensions, significance, implications and critical dimensions of the open theme of ‘(In)visibility’.

Indicative concerns include:
·         political and legal visibility/invisibility, including critical gender and race studies, the legal and cultural responses to current migration crises, the protection and rights of minorities
·         the visible/unseen dimensions of law and its institution, including legal aesthetics, law and visuality
·         law’s regulation of visibility, including law and art, the regulation of culture, illegitimate images
·         law’s (in)visibility within culture, including popular culture, film, comics, literature and television
·         legal history, including seen/unseen histories,
·         ‘hidden victims’ in criminal and other contexts
·         visible and hidden voices in the legal academy

Please submit abstracts (250 words), plus 3 keywords and a short biography (50 words), via email by 30 April 2016. Papers will be 20 minutes in length, with additional time for questions.

Confirmed Plenary Speakers: Sionaidh Douglas-Scott (Anniversary Chair in Law, Queen Mary University of London), Amanda Perry-Kessaris (Professor of Law, Kent Law School), Stuart Toddington (Professor of Jurisprudence, University of Huddersfield)

About the Centre for Law and Culture
Launched by Lady Hale in 2014, the Centre for Law and Culture (CLC) is an interdisciplinary hub for research at the intersections of law, justice, and the humanities. It is a home for the cultural study of law, and as a rallying point for such culturally enriched legal research, the Centre engages legal study that spans topics and themes from across critical and cultural legal studies. It thereby aims to incubate and promote critical research that crosses and challenges traditional legal boundaries in a cultural context. For more information, visit www.stmarys.ac.uk/law-and-culture.

Location: St Mary’s University, Twickenham, London TW1 4SX (www.stmarys.ac.uk/contact/location-maps.htm).

For information and submissions, please contact: Thomas Giddens thomas.giddens@stmarys.ac.uk

There is an anticipated £60 registration fee (plus booking), which will cover attendance, refreshments and lunch for both days and the conference dinner. Reduced cost packages will be available for single-day attendance.

Dr Thomas Giddens
Lecturer in Law

Waldegrave Road, Twickenham, London TW1 4SX
Room G145 | +44 (0)20 8240 4371

April 25, 2016

Burgess on the Founding Fathers, Pop Culture, and Constitutional Law


Susan Burgess, Ohio University, has published The Founding Fathers, Pop Culture, and Constitutional Law: Who's Your Daddy? (Ashgate 2008) (Law, justice, and power).

Here is a description of the contents from the publisher's website.

Applying innovative interpretive strategies drawn from cultural studies, this book considers the perennial question of law and politics: what role do the founding fathers play in legitimizing contemporary judicial review? Susan Burgess uses narrative analysis, popular culture, parody, and queer theory to better understand and to reconstitute the traditional relationship between fatherhood and judicial review. Unlike traditional, top-down public law analyses that focus on elite decision making by courts, legislatures, or executives, this volume explores the representation of law and legitimacy in various sites of popular culture. To this end, soap operas, romance novels, tabloid newspapers, reality television, and coming out narratives provide alternative ways to understand the relationship between paternal power and law from the bottom up. In this manner, constitutional discourse can begin to be transformed from a dreary parsing of scholarly and juristic argot into a vibrant discussion with points of access and understanding for all.

A New Article on Law and Star Trek From Fabrice Defferrard

New on Star Trek and law:

Fabrice Defferrard, Star Trek: paradigme juridique et laboratoire du droit, 45 Revue generale de droit de l'universite d'Ottawa 613-635 (2015).

Guilfoyle on Mieville, the Social Construction of Place and Law, and Transnationality in Contemporary International Law

Douglas Guilfoyle, Monash University Faculty of Law, has published Reading the City and the City as an International Lawyer: Reflections on Territoriality, Jurisdiction and Transnationality at 4 London Review of International Law 195 (2016). Here is the abstract.
This essay uses China Miéville’s crime/speculative fiction novel to reflect on the social construction of place and law, and the role of transnationality in contemporary international law. In particular, it considers the role of international law in a world of interpenetrating jurisdictional orders not closely tied to exclusive territorial control.
Download the essay from SSRN at the link.

Gordon on Property Theorists, Inheritance Texts, Narratives, and Estate Planning

Deborah S. Gordon, Drexel University School of Law, is publishing Mor[t]ality and Identity: Wills, Narratives, and Cherished Possessions in the Yale Journal of Law and the Humanities. Here is the abstract.
Franz Kafka is credited with observing that “the meaning of life is that it stops.” This recognition — that life’s one certainty is certain death — has been the source of great artistic, scientific, political, and personal inspiration. How we have lived over the course of our days — our individual and collective histories — and how we will be remembered by those who survive us — our legacies — are bridged not only by our achievements and relationships but also by cherished items of property that we have accumulated and decided to pass on. This type of possession often has a narrative that endows it with meaning. By incorporating a personal property narrative into testamentary documents, a decedent can transcend her mortality by infusing it with her morality. This Article starts by discussing connections between property law and language, explaining how property theorists have used metaphorical and narrative language about “things” to explore the political and economic communities the property creates among the people who have interests in those things. The Article then explores various inheritance texts, both fictional and legal, to demonstrate the multiple ways narratives and inheritance intersect and together “transmit traditions, cultural values, and ideologies.” The balance of the Article explores the potential for stories about cherished possessions to democratize inheritance law and enhance its purposes. It does so, first, by proposing model language to assist individuals and individuals and their lawyers in drafting conveyances that acknowledge the narrative power of cherished possessions. Having surmounted this procedural hurdle, the remaining sections argue that the current practice of trivializing personal property dispositions, either by relegating them to separate non-binding memoranda or not dealing with personal property at all other than in a general or residuary clause, are missed opportunities. Building from empirical studies that show how individuals identify with personal possessions, often because of the memories associated with those items, this Article argues that including these family histories in testamentary documents can help make estate planning more accessible and meaningful to a broad range of property owners. Encouraging personal property dispositions that include narratives also benefits survivors; psychological research shows a relationship between family stories and resilience, and sociological studies support the idea that sharing stories aids in bereavement. Finally, using this narrative approach as a strategy for encouraging broader participation in estate planning will benefit the inheritance system more holistically.
Download the article from SSRN at the link.

April 24, 2016

Rule-Bending With "Better Call Saul"

Francine Prose reflects on the first two seasons of AMC's Better Call Saul, here, for the New York Review of Books. In her essay, she examines both protagonist Jimmy McGill, whom she defines as a "rule breaker" or a "rule bender," and the ways in which that rule bending plays into his life as lawyer and human being.

April 20, 2016

A New Collection of Law and Literature Texts from Jose Calvo Gonzalez

Our friend José Calvo González has published De la Ley. ¿O será ficción? (Madrid, Barcelona, Buenos Aires, and São Paulo, Marial Pons: 2016) (Col. Derecho y Literatura).
Este compendio de textos, que desde la Literatura interpela al Derecho, busca provocar en sus lectores una respuesta acerca de qué incumba a la Ley de la ficción y qué a la ficción de la Ley, para así diferenciar cuando la Ley se vuelve ficción de cuando la ficción se vuelve Ley. Hallará en ellos conflictos de legalidad y legalismo, y muchos otros, además de tragicidad, ironía y algo de humor negro. Quede también avisado de que, naturalmente, nunca han existido ficciones inocuas e inermes, ya se trate de la invención de textos ficcionales de la Ley o de la invención de la ficción textual de la Ley.

Balkin's Review of Fleming's Fidelity to Our Imperfect Constitution

Jack M. Balkin, Yale Law School, is publishing History, Rights, and the Moral Reading in the Boston University Law Review (2016). Here is the abstract.
James Fleming's book, Fidelity to Our Imperfect Constitution, argues for a "moral reading" of the Constitution, a phrase made famous by Ronald Dworkin. But Fleming's version of the moral reading differs from Dworkin's in two important ways. First, Fleming argues that Dworkin's attempt to explain and justify judicial protection of constitutional rights in terms of democratic self-government is unduly strained. Moreover, in the quest to re-characterize all of these rights as supporting democracy, there is the danger that we will distort their most valuable features. I show why Fleming's insight is correct. I use the example of the First Amendment's guarantees of speech and press, which many scholars have assumed offers the strongest case for a democracy-based justification of rights. Second, Dworkin spent relatively little time worrying about how historical argument figured into a moral reading of the Constitution, other than to criticize originalism. Building on Dworkin's argument that good interpretations must satisfy the two dimensions of "fit" and "justification," Fleming asserts that history can be quite important to moral readings. I argue that Fleming offers a better account than Dworkin of why history matters -- and should matter -- to a moral reading of the Constitution. I show how his account connects with my own work on how lawyers use history in constitutional argument.
Download the text of the review from SSRN at the link.

April 19, 2016

Palmer's The Whilton Dispute, 1264-1380 To Be Available in Paperback

The Princeton University Press is making available in paperback and hardcover Robert C. Palmer's The Whilton Dispute, 1264-1380: A Social-Legal Study of Dispute Settlement in Medieval England (Princeton University Press, 2016) (Princeton Legacy Series). Here is a description of the contents from the publisher's website.
Robert C. Palmer examines the Whilton dispute, an intrafamilial, multigenerational contest over a large estate that continued, primarily in the courts, from 1264 until 1380.
The book was first published in 1984.

Tomlins on the Turner Rebellion as an Attempt at Regime Change in Antebellum Virginia

Christopher Tomlins, University of California, Berkeley, Jurisprudence and Social Policy Program, has published 'The Guilt of Fragile Sovereigns': Tyranny, Intrigue, and Martyrdom in an Unchanging Regime (Virginia, 1829-32) as UC Berkeley Public Law Research Paper No. 2760643. Here is the abstract.
“Regime change” has been called “a trendy new term for an old and special kind of intervention,” the toppling of those who displease or worry the United States Government. In an attempt to stretch “regime change” beyond simple coercive removal to encompass an ethics of accountability, and hence a measure of justification, the anthropologist John Borneman has proposed a tri-partite analysis of what regime change entails: government overthrow; military occupation and colonization; and caring for the enemy. The question arises whether the term can be stretched even further, or defined differently, to encompass instances of intervention against tyrannical rule beyond the sphere of interstate relations where it is currently lodged. To do so I turn here to a particular event – the Turner Rebellion, a slave rebellion that took place in Virginia in 1831 – and to recent work in political theory that dwells on the politics of counter-sovereignty. Rather than debate the ethics of one state’s decision to seek violent ascendancy over the leadership and population of another, therefore, here I attempt to stretch regime change to encompass a failed rebellion of slaves against a tyrannical slaveholding regime, an attempt to confront and lay low a guilty and fragile sovereignty by deploying a revolutionary politics of countersovereignty realized in conspiracy and self-sacrifice. I attempt also to analyze how this failed effort at regime change affected the regime itself, how it led fragile sovereigns to war with each other over changing their regime themselves, and how they too failed. Finally, we encounter decisive and successful change, although not in the nature of the regime in question but in the prevailing means of explaining it – epistemological rather than ontological change, in short, seeking to secure the regime from change by placing it in a realm beyond sovereignty and guilt, beyond politics and law, altogether. This episode of concatenated regime change is presented here to inform our own understanding of the phenomenon known as a regime, and our own attempts to construct schemata of change.
Download the article from SSRN at the link.

April 18, 2016

Central States Law Schools Scholarship Conference, September 23-24, 2016

From the mailbox:

SAVE THE DATE: Central States Law Schools Scholarship Conference

The Central States Law Schools Association 2016 Scholarship Conference will be held on Friday, September 23 and Saturday, September 24 at the University of North Dakota School of Law in Grand Forks, ND.  

CSLSA is an organization of law schools dedicated to providing a forum for conversation and collaboration among law school academics. The CSLSA Annual Conference is an opportunity for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment. More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work. Scholars from member and nonmember schools are invited to attend. 

Registration will formally open in July. Hotel rooms are already available, and more information about the CSLSA conference can be found on our website at www.cslsa.us.

April 15, 2016

Winston Moseley, Convicted of Kitty Genovese's Murder, Dies in Prison

Winston Moseley, who confessed to murdering Kitty Genovese in 1964, in a murder that has come to epitomize both a lack of caring and the idea of anonymity in urban spaces, has died in prison at the Clinton Correctional Facility, Dannemora, NY. He was 81.  Mr. Moseley also confessed to two other murders, those of Annie Mae Johnson and Barbara Kralik, who was only 15.

Ms. Genovese's death, which was random, has been the subject of numerous films, books, and studies, and has given rise to the notion of the "bystander effect." But its early coverage in the media, most notably in the New York Times, was based on flawed reporting. Although early accounts indicated that no one came to her aid as she lay dying in the hallway of her apartment building and that her neighbors ignored her pleas for help, neighbors actually did help her, and did call the police. As early as the 1980s, books discussing Ms. Genovese's murder have re-investigated the event and debunked much about the early reports. However, many popular accounts still repeat the early, mistaken details, first reported by Abe Rosenthal and subsequently written up by him in his book 38 Witnesses (McGraw-Hill, 1964).

Selected Bibliography:

Kevin Cook,  Kitty Genovese: The Murder, the Bystanders, the Crime that Changed America (Norton, 2015).

Catherine Pelonero, Kitty Genovese: A True Account of a Public Murder and Its Private Consequences (Skyhorse, 2014).  

Death Scream (DVD, Braun Media, 2008). A drama based on the popular account of the Genovese murder, starring Raul Julia and Art Carney. 

Tomlins on Looking for Law in "The Confessions of Nat Turner"

Christopher Tomlins, University of California, Berkeley, Jurisprudence and Social Policy Program, is publishing Looking for Law in 'The Confessions of Nat Turner' in Looking for Law in All the Wrong Places (Marianne Constable and Leti Volpp, eds., n.p., n.d.). Here is the abstract.
From Harriet Beecher Stowe to William Styron and Sharon Ewell Foster, from Kyle Baker to Nate Parker, and others, American popular culture has found Nat Turner's "Confessions" endlessly fascinating. The fascination of course extends to historians. Particularly in recent years, scholars have dug deeply into the local history of what came to be called The Turner Rebellion. The result is a greatly enriched archive. Still, much of what is known of the event and particularly of its eponymous leader – and hence the manner of their portrayal – remains dependent on Thomas Ruffin Gray's pamphlet "Confessions." Naturally one must ask whether a hastily-written twenty page pamphlet rushed into print by an opportunistic white lawyer, down on his luck and hoping to cash in on Turner's notoriety, actually deserves to be treated as empirically reliable access to the mentalités of those engaged in planning and executing an "insurrectory movement." Should the pamphlet survive that test, a second question immediately surfaces: precisely what is it that the pamphlet evidences? This essay seeks an answer through consideration of a number of recent literary analyses of Gray's pamphlet.

Download the essay from SSRN at the link.

Tomlins on the History of Contemporary Legal Thought

Christopher Tomlins, University of California, Berkeley, Jurisprudence and Social Policy Program, is publishing Of Origin: Toward a History of Contemporary Legal Thought in In Search of Contemporary Legal Thought (Justin Desautels-Stein and Christopher Tomlins, ed.; n.p, n.d.). Here is the abstract.
A conventional conception of “contemporary legal thought” would have it stand for the universe of expressions of legal consciousness, plural and contradictory, that abound in our present and compete to determine the trajectory of the future. Contemporary legal thought might, however, stand for something more – a conceptual vocabulary, organizational scheme, or mode of reasoning and arguing that the preponderance of current expressions of legal consciousness share. In the first case, “contemporary” carries no significance other than “current,” and contemporary legal thought stands for nothing more than the aggregation of legal discourses that are “contemporaneous” with each other – existing at the same time. In the second, it becomes (in Duncan Kennedy’s semiotic formulation) a langue – a structure of categories, concepts, conventionally understood procedures and typical legal arguments – within which the present’s plural parole expressions of legal consciousness occur. My objective in this essay is to determine whether or not, in order to write a history of “contemporary legal thought,” it is sensible, or even possible, to posit its existence in the second sense; and, if not, what (if any) historical meaning lies in the aggregate of the first sense. I undertake this exercise not by surveying the field of current legal discourse in search of commonalities that might be restated as structural generalizations. Instead I consider whether something we can call “contemporary legal thought” can be conceived of as such by resorting to a historical concept of origin.
Download the essay from SSRN at the link.

Frishman on Court-Audience Relationships in the Twenty-First Century

Olga Frishman, University of Haifa Faculty of Law, and Tel-Aviv University, Buchmann Faculty Faculty of Law, is publishing Court-Audience Relationships in the 21st Century in the Mississippi Law Journal. Here is the abstract.
Courts, especially supreme and constitutional courts, need social legitimacy to successfully fulfill their roles. This article argues that courts are not only aware of this need but also can, and do in practice, actively manage their relationships with their audiences in an attempt to increase this legitimacy. The article proposes a new framework for understanding these court-audience relationships. Using insights from organizational theory, the article proposes a broad definition of courts’ audiences. It also argues that court-audience relationships should be analyzed using the concepts of “intended image” and “organizational image.” Based on the proposed framework, the article identifies a wide variety of methods that courts use to manage these relationships and to convince their different audiences to support them. It focuses in particular on one type of methods courts use – methods that are external to their official roles (e.g., movies and books, museums, gift shops, websites, and advertisements). Many of these methods are similar to techniques used by public relations specialists to promote other organizations. These methods, the article argues, which until now have not been accorded much scholarly investigation, are pivotal for courts’ ability to gain the support of their audiences. The article also discusses the practical concerns that arise from courts’ use of these methods, situations in which using them may decrease courts’ legitimacy. Finally, the article addresses normative concerns that result from courts’ turn to public relations methods for managing their relationships with their audiences and the way this turn may influence their social role.
Download the article from SSRN at the link.

April 14, 2016

Literary Trials

New from Bloomsbury:

Literary Trials: Exceptio Artis and Theories of Literature in Court (Ralf Gruettemeier, ed., 2016).

Here is a description of the contents from the publisher's website.

From the 19th century onwards, famous literary trials have caught the attention of readers, academics and the public at large. Indeed it is striking that more often than not, it was the texts of renowned writers that were dealt with by the courts, as for example Gustave Flaubert's Madame Bovary and Charles Baudelaire's Les Fleurs du Mal in France, James Joyce's Ulysses and Henry Miller's Tropic of Cancer in the US, D.H. Lawrence's Lady Chatterley's Lover in Great-Britain, up to the more recent trials on Klaus Mann's Mephisto and Maxim Biller's novel Esra in Germany.

By bringing together international leading experts, Literary Trials represents the first step towards a systematic discussion of literary trials on a global scale. Beginning by first reassessing some of the most famous of these trials, it also analyses less well-known but significant literary trials. Special attention is paid to recent developments in the relationship between literature and judicature, pointing towards an increasing role for libel and defamation in the societal demarcation of what literature is, and is not, allowed to do.

 Media of Literary Trials
rom the 19th century onwards, famous literary trials have caught the attention of readers, academics and the public at large. Indeed it is striking that more often than not, it was the texts of renowned writers that were dealt with by the courts, as for example Gustave Flaubert's Madame Bovary and Charles Baudelaire's Les Fleurs du Mal in France, James Joyce's Ulysses and Henry Miller's Tropic of Cancer in the US, D.H. Lawrence's Lady Chatterley's Lover in Great-Britain, up to the more recent trials on Klaus Mann's Mephisto and Maxim Biller's novel Esra in Germany.

By bringing together international leading experts, Literary Trials represents the first step towards a systematic discussion of literary trials on a global scale. Beginning by first reassessing some of the most famous of these trials, it also analyses less well-known but significant literary trials. Special attention is paid to recent developments in the relationship between literature and judicature, pointing towards an increasing role for libel and defamation in the societal demarcation of what literature is, and is not, allowed to do. -

Media of Literary Trials

April 13, 2016

Meyler on the Tragicomic Clemency of Massinger's The Bondman

Bernadette A. Meyler, Stanford Law School, is publishing From Sovereignty to the State: The Tragicomic Clemency of Massinger's the Bondman in the Oxford Handbook of English Law and Literature (Bradin Cormack and Lorna Hutson eds., forthcoming). Here is the abstract.
The enthusiastic series of receptions of Philip Massinger’s 1623 play The Bondman by royalists and republicans alike has puzzled critics. This essay argues that the play appealed to disparate constituencies by displacing focus from the sources of sovereignty onto the stability of the state. Drawing on Stoic philosopher Seneca’s De Clementia, which Thomas Lodge had newly translated in 1614, The Bondman centers both generically and politically on clemency. Clemency infuses the play’s mode of tragicomedy and presents a vision of politics that prioritizes the general welfare of the state over any particular form of rule.
Download the full text of the essay from SSRN at the link.

Watt on Shakespeare, Wills, and Performing Will

Gary Watt, Professor of Law, University of Warwick, is publishing Shakespeare's Acts of Will (Bloomsbury, 2016). Here is a description of the contents from the publisher's website.
Shakespeare was born into a new age of will, in which individual intent had the potential to overcome dynastic expectation. The 1540 Statute of Wills had liberated testamentary disposition of land and thus marked a turning point from hierarchical feudal tradition to horizontal free trade. Focusing on Shakespeare's late Elizabethan plays, Gary Watt demonstrates Shakespeare's appreciation of testamentary tensions and his ability to exploit the inherent drama of performing will. Drawing on years of experience delivering rhetoric workshops for the Royal Shakespeare Company and as a prize-winning teacher of law, Gary Watt shows that Shakespeare is playful with legal technicality rather than obedient to it. The author demonstrates how Shakespeare transformed lawyers' manual book rhetoric into powerful drama through a stirring combination of word, metre, movement and physical stage material, producing a mode of performance that was truly testamentary in its power to engage the witnessing public. Published on the 400th anniversary of Shakespeare's last will and testament, this is a major contribution to the growing interdisciplinary field of law and humanities.

 Media of Shakespeare's Acts of Will

Meyler on the Politics of the Declaration of Independence Before the Civil War

Bernadette A. Meyler, Stanford Law School, is publishing Between the States and the Signers: The Politics of the Declaration of Independence Before the Civil War in Southern California Law Review. Here is the abstract.
It is almost impossible to conjure the thought of the Declaration of Independence today without also raising the specters of the signers. Commonplace invocations of “John Hancock” stand in for the prototypical signature, and elementary school children throughout the country learn details about the lives of the signers. The signers did not, however, authorize the Declaration solely for themselves, but rather on behalf of the “People.” At the same time as autograph collectors began accumulating the signatures of the signers of the Declaration of Independence in the early nineteenth century, the political contest over the “People” of the United States drew the Declaration into its arguments. Controversy focused, in particular, on whether this people could be considered united from the Declaration onwards or consisted in the people of the several states. Drawing on two periods when discussions of the Declaration came to the fore, this Symposium Article contends that the figure of the signers — and their signatures — became a crucial weapon in a battle over which people had authorized not only the Declaration but also the U.S. Constitution.
Download the article from SSRN at the link.

April 12, 2016

Blank and Osofsky on Simplexity: The IRS' Use of Plain Language

Joshua D. Blank, New York University School of Law, and Leigh Osofsky, University of Miami School of Law, are publishing Simplexity in the Emory Law Journal (2016). Here is the abstract.
In recent years, federal government agencies have increasingly attempted to use plain language in written communications with the public. The Plain Writing Act of 2010, for instance, requires agencies to incorporate “clear and simple” explanations of rules and regulations into their official publications. In the tax context, as part of its “customer service” mission, the Internal Revenue Service bears a “duty to explain” the tax law to hundreds of millions of taxpayers who file tax returns each year. Proponents of the plain language movement have heralded this form of communication as leading to simplicity in tax compliance, more equitable access to federal programs and increased open government. This Article casts plain language efforts in a different light. As we argue, rather than achieving simplicity, which would involve reform of the underlying law, the use of plain language to describe complex legal rules and regulations often yields “simplexity.” As we define it, simplexity occurs when the government presents clear and simple explanations of the law without highlighting its underlying complexity or reducing this complexity through formal legal changes. We show that in its numerous taxpayer publications, the IRS frequently uses plain language to transform complex, often ambiguous tax law into seemingly simple statements that (1) present contested tax law as clear tax rules, (2) add administrative gloss to the tax law and (3) fail to fully explain the tax law, including possible exceptions. Sometimes these plain language explanations benefit the government; at other times, they benefit taxpayers. While simplexity offers a number of potential tax administration benefits, such as making the tax law understandable and even bolstering the IRS’s ability to collect tax revenue, it can also threaten vital values of transparency and democratic governance and can result in inequitable treatment of different taxpayers. We offer approaches for preserving some of the benefits of simplexity while also responding to some of its drawbacks. We also forecast the likely emergence of simplexity in potential future tax compliance measures, such as government-prepared tax returns, interactive tax return filing and increased third-party reporting.

Download the article from SSRN at the link.

Comics and Modernism in the Journal of Modern Literature

In volume 39 of the Journal of Modern Literature, a special section on Comics and Modernism.

Via Project Muse.

Introduction: Comics and Modernism

pp. 111-114

“But — what can anyone do about it?”: Modernism, Superheroes, and the Unfinished Business of the Common Good

pp. 115-125

Lynd Ward’s Modernist “Novels in Woodcuts”: Graphic Narratives Lost Between Art History and Literature

pp. 126-143

The Integrity of the Work: Alan Moore, Modernism, and the Corporate Author

pp. 144-166

The Superhero Historicized, Theorized, and Read

pp. 167-170

Pirating Modernism: Without Copyrights by Robert Spoo

pp. 171-179

Tip of the beret to Simon Stern@ArsScripta.