February 24, 2017

@CBS Cancels Legal Drama Doubt After Two Episodes

CBS has cancelled one freshman legal drama, Doubt, after airing only two episodes, citing poor ratings. I liked this show at least as well as some of the law-related shows that have been on air lately, and I actually think it could have developed to be almost as interesting as The Good Fight. Doubt has at least one fresh new character, Cameron Wirth (played by Laverne Cox), and gives Dule Hill, whom we haven't seen since Psych, a chance to stretch a little bit, playing an experienced criminal defense attorney and law partner to Sadie Ellis (Katherine Heigl). Sadie herself is more complex than leading characters in these shows often are; she puts up a noncommittal and brave front, but has secrets, mostly centering on her mother, who is in prison for murder. Cameron's interactions with 1st year associate Tiffany Walker (Dreama Simon) are fun, and allow the show to investigate some of the stereotypes associated with lawyers and with New Yorkers. Indeed, the show's first two episodes seem to concentrate on pointing out stereotyping and bias, from Cameron's acceptance that some people don't want to deal with her because she's trans and her own stereotyping of Tiffany as a "girl from Iowa," to general assumptions that viewers have about lawyers.

I understand that there are an additional eleven unaired episodes of the show. I hope we get to see them, so that some of the story arcs get wrapped up. And I continue to wonder why the show Bull, which is going to fill in Doubt's time slot, is still on the air. But more about that another time.

February 23, 2017

Davies on a Map Or Chart of the Adventure of the Musgrave Ritual @GB2d

Ross E. Davies, George Mason University Law School and The Green Bag, is publishing Some Sort of Map or Chart of the Adventure of the Musgrave Ritual in volume 17, no. 5 of Green Bag Single Sheet Classic. Here is the abstract.
When and where did the Musgrave Ritual germinate, when and where did Sherlock Holmes solve the mysteries of the Ritual and of the disappearance of Rachel Howells, and when and where did Holmes tell the whole story to John Watson? This map and its companion explain. Maybe.
Download the map and essay from SSRN at the link.

Are You Ready For Some Football (In Legal Writing?) Abrams On References To Football in Judicial Opinions and Written Advocacy @MizzouLaw

Douglas E. Abrams, University of Missouri School of Law, has published References to Football in Judicial Opinions and Written Advocacy at 73 Journal of the Missouri Bar 34 (January-February 2017). Here is the abstract.
Professor Abrams authors a column, Writing it Right, in the Journal of the Missouri Bar. In a variety of contexts, the column stresses the fundamentals of quality legal writing - conciseness, precision, simplicity, and clarity. Future columns will be posted as they are published every three months or so.
Download the essay from SSRN at the link.

Hollander-Blumoff on How Literature Can Assist In Understanding Negotiation @WashULaw

Rebecca E. Hollander-Blumoff, Washington University, Saint Louis, is publishing Novel Negotiation in the Journal of Dispute Resolution. Here is the abstract.
In dispute resolution, a field of study that is inherently interdisciplinary, there is no clear metric for how we ought to delineate the limits of relevant domains. Literature, with its ability to transport us to different times, places, lives, and stories, can reveal critical and crystallizing truths about human interaction in both conflicts and transactions. Careful and cross-disciplinary analysis of literary works will only serve to amplify our understanding of negotiation behavior in ways that can enrich our writing, our teaching, and our thinking on negotiation. In this essay, I address three different novels and highlight the ways in which they help elucidate, and provide new insight into, some fundamental and familiar aspects of negotiation. While the situations in these novels often dovetail with academic dispute resolution literature on aspects relevant to the negotiation process, they add nuance and amplification.
Download the article from SSRN at the link.

February 22, 2017

Hooper on the Historical and Legal Limits of Arbitrary Government Decision Making @SydneyLawSchool

Grant Robert Hooper, University of Sydney Law School, has published From the Magna Carta to Bentham to Modern Australian Judicial Review: Themes of Practicality and Spirituality at 84 Australian Institute of Administrative Law Forum 22 (2016). Here is the abstract.
This article considers the interplay or balance between a need to allow the government to govern and the notion that law contains a substantive content to protect the individual from arbitrary government decision making. To illustrate that this search for balance is not new, and despite 800 years is not resolved, this paper starts with the Magna Carta but then proceeds to consider influential historical figures chosen for the impact they have had, and continue to have, on the modern understanding of what limits can and should be imposed on government and how these limits may be legitimately applied by the judiciary. The historical figures chosen are Lord Coke, Blackstone, Dicey, Bentham and Austin. They in particular highlight what might be described as some of the original and core underlying values that shape the judicial response to Parliament’s modern efforts to increase governmental power. In this regard, it will be contended that while modern judicial review is essentially practical, there persists a touch of spirituality and without understanding this it is not possible to appreciate the balance that the High Court so often seeks to achieve between increased governmental power and protecting individuals from arbitrary government decision making. This “balance” will be explored by examining some examples of the modern form of the Magna Carta’s “law of the land” or “due process”, natural justice. More specifically it will touch upon three well-known modern developments, being: the judiciary’s re-birth, defence, reformulation and re-badging of natural justice; the constitutionalisation of judicial review; and the adoption of a broader “purposive” approach to statutory interpretation generally.
Download the article from SSRN at the link.

February 21, 2017

New From Brill: The Theatre of Justice: Aspects of Performance in Greco-Roman Oratory and Rhetoric

The Theatre of Justice: Aspects of Performance in Greco-Roman Oratory and Rhetoric (Sophia Papaioannou, Andreas Serafim, and Beatrice Da Vela, eds.; Brill, 2017).
The Theatre of Justice contains 17 chapters that offer a holistic view of performance in Greek and Roman oratorical and political contexts. This holistic view consists of the examination of two areas of techniques. The first one relates to the delivery of speeches and texts: gesticulation, facial expressions and vocal communication. The second area includes a wide diversity of techniques that aim at forging a rapport between the speaker and the audience, such as emotions, language and style, vivid imagery and the depiction of characters. In this way the volume develops a better understanding of the objectives of public speaking, the mechanisms of persuasion, and the extent to which performance determined the outcome of judicial and political contests.


Call For Papers, The Law of Nations in the Long Eighteenth Century, Paris, May 18-19, 2017

The Library of Congress, the Law Library of Congress, and the Continuing Relevance of "The Merchant of Venice" @librarycongress @LawLibCongress @WFULawSchool

Ellen Terrell of the Library of Congress discusses real life merchants of Venice on the Library of Congress Blog here. The post is related to other Merchant of Venice posts dedicated to Shakespearian events in 2016, and some taking place this year, including a program discussing the history of the Jewish Ghetto of Venice, taking place today, February 21st, and hosted by the Law Library of Congress. 

The program includes talks by Benjamin Ravid, on the European legal context surrounding the establishment and continuation of the ghetto, David Malkiel, who will discuss Jewish institutions of self-government within the ghetto, and Dick Schneider. who will discuss Shakespeare's play The Merchant of Venice.

Now Available: Paul Raffield, The Art of Law In Shakespeare (Hart Publishing) @hartpublishing @warwickuni

February 20, 2017

Looking For Some US Presidents To Criticize Or Admire? Try Pop Culture (Oh, and There Are Some Prime Ministers In the Mix, Also)

"[I]n honor of Presidents’ Day," Salon offers this list of popular culture Presidents that might please most of the people at least some of the time. It includes "regular guy" Dave Kovic from Dave, Andrew Shepherd from The American President, James Marshall in Air Force One (okay--that one is a gimme--who wouldn't want Harrison Ford in the White House?), Tom Beck in Deep Impact (again, it's Morgan Freeman), and Greg Stillson in The Dead Zone (okay, probably not a great choice, except for contrast). There's also the President (Michael Pate) in The Return of Captain Invincible (which starred Alan Arkin). No, I've never heard of it but I've never heard of a lot of films.

In case you were wondering, there are a number of choices for fictional UK Prime Minister as well. Of course, we know about Hugh Grant in Love Actually.  Ross Crae lists a number of others for the Sunday Post here.

Looking for Australian PMs? John Singleton plays this role in The Honourable Wally Norman

Haven't found any Swedish Prime Ministers in movies to cite, but the tv series Kronprincessan, about a female environmental minister, also features a Prime Minister (played by Kenneth Milldoff).

Carry on.


Lauriat on Walter v. Lane (1900), Originality, and Copyright Protection Under UK Law @KCL_Law

Barbara Lauriat, King's College London, is publishing Walter v. Lane (1900) in Landmark Cases in Intellectual Property Law, chapter 7 (Jose Bellido, ed., Hart Publishing, 2017). Here is the abstract.
Originality is a cornerstone of contemporary copyright law; in order to receive protection, works must be ‘original’. One of the persistent challenges for the courts has been identifying when a copy of a work can itself be an original work. This question of protecting copies of other works arose before originality was even a statutory requirement. In the seminal case of Walter v. Lane (1900), the House of Lords decided that verbatim reports in The Times of speeches given by the politician Lord Rosebery were protected under the existing copyright legislation. Walter v. Lane is a seminal copyright case still cited in 21st-century judgments. But it was also a principled personal conflict, with the Bodley Head publisher John Lane (1854-1925) and Liberal editor Charles Geake (1867-1919) on one side and Charles Frederic Moberly Bell (1847-1911), the Managing Director of The Times, on the other. This feud caused embarrassment and upset to Lord Rosebery himself, a friend to both Moberly Bell and Geake, who found himself caught in the middle. This chapter examines the legal and personal context of Walter v. Lane and challenges other interpretations of its holding. It argues that the primary legacy of the case comes from the principle that the law should protect works that are products of editing, re-creation, preservation, conservation, or reconstruction where they are the result of intellectual skill and labour and there exists a public interest in the relevant acts of copying.
Download the essay from SSRN at the link.

Cross-posted to Media Law Prof Blog.

Murray on Trump's Wall @LoyolaLawSchool

Yxta Maya Murray, Loyola (Los Angeles) Law School, is publishing A Modest Memo in the Michigan Journal of Race & Law. Here is the abstract.
A Modest Memo is a satire in the form of a legal memo written for President-Elect Donald Trump circa November 2016. It counsels Mr. Trump to obtain Mexican funding for a U.S.-Mexico “Wall” via United Nations Security Council sanctions. These sanctions would freeze remittances (that is, “hold them hostage”) until Enrique Peña Nieto wired the U.S. sufficient monies for construction. The memo, which is entirely the product of my imagination and legal study, contemplates one of the many possible worst case scenarios threatened by the Trump presidency. Through the arts of law and literature, I aim to show how the rule of law may so easily buckle and splinter beneath the increasing tide of U.S. as well as global nationalism and racism. I take inspiration, of course, from Jonathan Swift’s A Modest Proposal (1729), as well as the legal-literary experiments found in Derrick Bell’s Faces at the Bottom of the Well: The Permanence of Racism (1993) and Richard Delgado’s Storytelling for Oppositionists and Others: A Plea for Narrative, 87 Michigan Law Review 2411 (1989).
Download the essay from SSRN at the link.

February 17, 2017

The Good Fight Premieres on CBS and Then Moves To All-Access @thegoodfight

Generally, early reviews of The Good Fight (CBS) are indicating that it's superior TV. After the premiere (Sunday, 8 p.m., 7 Central time), the network will make it available only on its streaming platform (All-Access), which costs $5.99 a month, or $9.99 for the commercial-free version. I have loved the prior work of the leads (Christine Baranski, Cush Jumbo, Rose Leslie), but paying another $10 per month for a premium subscription (I hate commercials) when I already pay for four streaming services (yes, HBO, Acorn, Hulu, Netflix), plus a donation to my local PBS station for access to additional material,  as well as over a hundred dollars a month for cable--well, that sends my bank account into palpitations. I plan to check out the initial offering, and then see if it's worth $120 a year for how many episodes? Hmmm, what else is available on All-Access? The Good Fight might be for my pocketbook.

Some reviews of The Good Fight here:


The New York Times

USA Today

Luban and Russell on Philosophical Legal Ethics @DavidLuban

David J. Luban, Georgetown University Law Center, and W. Bradley Russell, Cornell University School of Law, are publishing Philosophical Legal Ethics: An Affectionate History, in volume 30 of the Georgetown Journal of Legal Ethics (2017). Here is the abstract.
The modern subject of theoretical legal ethics began in the 1970s. This brief history distinguishes two waves of theoretical writing on legal ethics. The “First Wave” connects the subject to moral philosophy and focuses on conflicts between ordinary morality and lawyers’ role morality, while the “Second Wave” focuses instead on the role legal representation plays in maintaining and fostering a pluralist democracy. We trace the emergence of the First Wave to the larger social movements of the 1960s and 1970s; in the conclusion, we speculate about possible directions for a Third Wave of theoretical legal ethics, based in behavioral ethics, virtue ethics, or fiduciary theory.
Download the article from SSRN at the link.

February 16, 2017

Van Domselaar on Tragic Legal Choices

Iris van Domselaar, University of Amsterdam, has published On Tragic Legal Choices as Amsterdam Law School Research Paper No. 2017-03 and Law and Justice Across Borders Research Paper 2017-01. Here is the abstract.
In this paper the concept of the tragic legal choice is established as an indispensable complement to our theoretical understanding of adjudication. Not only in rare, exotic and consequently numerically negligible cases, judges may be confronted with tragic legal choices. In these cases adjudication will engender a sense of tragic loss, a lack of clarity, incommensurability and messiness, which cannot be avoided, overcome, or dismantled as a pre-reflective or extra-legal illusion. In this sense, this paper is a harbinger of ‘bad news’ for law and adjudication. The paper is organized as follows. It firstly discusses the concept of the ‘tragic’ in (the history of) practical philosophy. Subsequently, the central features of a tragic legal choice are laid out: it is the result of a genuine conflict between judicial commitments, it leaves a tragic remainder in its wake and it typically evokes a tragic response on the part of the judge. In the elaboration of the first feature, different categories of conflicts between judicial commitments that may give rise to tragic legal choices are distinguished. After this survey, the purported advantages and drawbacks of anchoring this concept in both the theory and practice of adjudication are analysed. Throughout the paper a variety of legal cases will be discussed, partly in order to foster the reader’s sense of the tragic.
Download the article from SSRN at the link.

Banks on Civil Trials in Popular Culture

Taunya Lovell Banks, University of Maryland School of Law, is publishing Civil Trials: A Film Illusion? in the Fordham Law Review. Here is the abstract.
The right to trial in civil cases is enshrined in the United States Constitution* and most state constitutions. Most people, laypersons and legal professionals alike, consider trials an essential component of American democracy. But real life civil trials are disappearing from the American legal landscape. Films, like books designed for consumption by the general public, are cultural documents that embody a society’s attitudes about and views of the law and the legal system. Courtroom films are the most easily recognizable and popular subset of films about law because they provide the stage for an examination of some aspect of a trial — juries, lawyers, litigants, laws or the legal process itself. Some legal commentators contend that legal films have the capacity to teach and encourage film audiences to think more critically about the legal system. But most trial films involve criminal cases. Thus this essay asks whether the distinction between criminal and civil films trials is important when determining the impact of the decline in real-life civil trials on American popular culture and courtroom films in particular. In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” U.S. CONST. amend. VII.
Download the essay from SSRN at the link.

Legal Bodies: Special Issue of Law & Literature Now Available

February 15, 2017

Re-Interpreting Blackstone's Commentaries, Edited by Wilfred Prest: New in Paperback from Hart Publishing @hartpublishing

New in paperback from Hart Publishing: Re-Interpreting Blackstone's Commentaries: A Seminal Text in National and International Contexts (Wilfrid Prest, ed., Hart Publishing).
This collection explores the remarkable impact and continuing influence of William Blackstone's Commentaries on the Laws of England, from the work's original publication in the 1760s down to the present. Contributions by cultural and literary scholars, and intellectual and legal historians trace the manner in which this truly seminal text has established its authority well beyond the author's native shores or his own limited lifespan. In the first section, 'Words and Visions', Kathryn Temple, Simon Stern, Cristina S Martinez and Michael Meehan discuss the Commentaries' aesthetic and literary qualities as factors contributing to the work's unique status in Anglo-American legal culture. The second group of essays traces the nature and dimensions of Blackstone's impact in various jurisdictions outside England, namely Quebec (Michel Morin), Louisiana and the United States more generally (John W Cairns and Stephen M Sheppard), North Carolina (John V Orth) and Australasia (Wilfrid Prest). Finally Horst Dippel, Paul Halliday and Ruth Paley examine aspects of Blackstone's influential constitutional and political ideas, while Jessie Allen concludes the volume with a personal account of 'Reading Blackstone in the Twenty-First Century and the Twenty-First Century through Blackstone'. This volume is a sequel to the well-received collection Blackstone and his Commentaries: Biography, Law, History (Hart Publishing, 2009).

 Media of Re-Interpreting Blackstone's Commentaries

February 14, 2017

Open University Offers Spring Seminar Series On Detective and Crime Fiction, Beginning February 21, 2017 @ThomGiddens @TheOpenUniversity

From Christiana Gregoriou, University of Leeds:

The Open University/Institute of English Studies Contemporary Culture of Writing Seminars have great pleasure inviting you to the Open University Contemporary Cultures of Writing spring seminar series (in collaboration with the Institute of English Studies).  This event is open to the public, and held at Senate House in Malet Street, London. There are two speakers at each event, and a Q and A session with free wine at the end. No need to book ahead, just turn up on the day and ask for directions at the reception desk.  The seminars run from 5.30-7.30 pm.  Detective and crime fiction has become increasingly popular over recent years. From its roots in the nineteenth century, this genre has grown in many directions and we now have several sub genres to choose from: such as hard-boiled, cosy, procedural, and domestic noir.
 This raises questions for the writer and the reader. How do crime novels reflect contemporary politics and culture? Have advances in psychology, neuroscience and digital technology changed the fictional landscape? Is there a gender divide in the type of crime fiction written by men and women? Who are the victims – and who are the perpetrators? Does the crime always have to be solved? 
 Seminar 1:  Tuesday 21 February 2017 ‘Crime Narrative Structures and Post Conflict Societies’ with Claire McGowan and Christiana Gregoriou Room: G34 Senate House
 Christiana Gregoriou is an English language lecturer at Leeds University’s School of English.  She is a specialist in crime fiction stylistics. Claire McGowan grew up in Northern Ireland and now teaches the UK's first MA in crime writing at City University London. She is the author of seven acclaimed crime novels set in Ireland.
 Seminar 2: 14 March 2017 ‘Contemporary Publishing and the influence of the Gothic in Crime Fiction’ with Graham Pike and Nicky Harlow. Room: 104, Senate House
 Graham Pike is Professor of Forensic Cognition at The Open University. His research uses knowledge about how the mind works to develop investigative techniques and technology. Graham is co-writing a new book, Mad or Bad, out this year. Nicky Harlow is a published novelist living in West Yorkshire. She is an Associate Lecturer in Creative writing at the Open University, where she is also studying for a PhD in Creative Writing. Her research interest lies in the rendering of setting and imagery in contemporary crime thrillers.
 Seminar 3:  21 March 2017 ‘Financial Crime in Fiction, Forensic Cognition and the Insistent Voices of the Dead’ with Joanne Reardon Lloyd and Christina Philippou. Room: G34, Senate House
 Christina Philippou is a Senior Lecturer at the University of Portsmouth, teaching and researching in the areas of forensic accounting and financial crime.. Her debut contemporary fiction novel, Lost in Static, was published in September 2016. Joanne Reardon Lloyd is a Lecturer in Creative Writing for the Open University. Her fiction and drama has been produced on BBC Radio 4 and published in magazines and anthologies including The London Magazine and the Cinnamon Short Story Prize .
 For more information contact sally.oreilly@open.ac.uk  or Nicky Harlow on  nah228@open.ac.uk.  The Open University is incorporated by Royal Charter (RC 000391), an exempt charity in England & Wales and a charity registered in Scotland (SC 038302). 

Call For Applications: St. Mary's Unviersity, PhD Fellowship (Studentship), Feminist Legal History or Cultural Legal Studies. Closing Date Feb. 26, 2017 @ThomGiddens @YourStMarys

Via @ThomGiddens

PhD Studentship - Feminist Legal History, or Cultural Legal Studies

St Mary's University, Twickenham - Centre for Law and Culture

School of Management and Social Sciences
Applications are invited for a three-year PhD studentship at the Centre for Law and Culture, St Mary’s University, Twickenham, beginning October 2017, working with Dr Judith Bourne and/or Dr Thomas Giddens.
The Centre for Law and Culture is an interdisciplinary hub for research at the intersections of law, justice, and the humanities. It aims to incubate and promote research crossing and challenging traditional legal boundaries from across critical and cultural legal studies. Visit www.stmarys.ac.uk/law-and-culture
The studentship provides full-time PhD home/EU student fees (£4,020 pa), £13,000 pa bursary, and £300 pa conference attendance budget. Applicants should have a Masters with Distinction, or with Merit and a distinction in the dissertation.
Details of Research Areas
A single PhD Studentship is available in either:
  • Feminist legal history, or
  • Cultural legal studies
Applications that traverse or combine these areas are also welcome.
Feminist Legal History
Feminist legal history is committed to uncovering women’s legal agency and how women have used the law to change their position. Feminist lawyers and historians have long recognised the contradictions at the heart of efforts to transform the law in ways that serve women’s interests. They demonstrate women’s denial of legal rights, women’s use of law to gain rights, and how, empowered by law, women worked to change gendered legal realities.
Applications are encouraged in (but not limited to) the following areas:
  • The development and impact of the Sex Disqualification (Removal) Act 1919
  • The legal networks developed by women before 1919
  • Comparative studies of ‘self-publicising’ hearings heard by the Bar Council and Inns of Court, 1919-1940
  • The pre-1919 lobbying carried out for women’s admission to the legal profession
  • Women ‘outside’ lawyers pre-1919
  • The history of the involvement of women in law
  • The barriers to women’s promotion in law
Cultural Legal Studies
Emerging from the tradition of studying law and humanities, cultural legal studies is an internationally growing area of legal study. From representations of law and justice in popular culture, to art as a form of jurisprudential knowledge, to the development of innovative jurisprudences based around particular cultural experiences, cultural legal studies is a burgeoning area of study, rich with potential, and ripe for the engagement of new and developing postgraduate researchers interested in engaging critically with law.
Applications are encouraged in, but not limited to, the following areas:
  • law, legality, and justice in visual culture and media (including film, comics, games, popular culture, etc)
  • the nature of cultural legal studies
  • the form of legal knowledge
  • legal aesthetics and the visuality of law and its institution
Additional Information
Possible roles include aiding in conference organisation and limited undergraduate teaching; the successful applicant should thus be located within Greater London during their studies.
To Apply
Download and complete a PhD application form and send, with a 3,000-4,000 word research proposal, two academic references, copies of your Master’s qualification(s), a current CV, and a cover letter, to:
Prof Mahendra Raj
School of Management and Social Sciences
St Mary’s University
Twickenham, TW1 4SX
Email: mahendra.raj@stmarys.ac.uk
Tel: 020 82404079
Informal enquiries regarding topic areas:
Enquiries about application procedures and requirements: Prof Mahendra Raj (mahendra.raj@stmarys.ac.uk)
More here

February 13, 2017

Gomez-Arostegui on Stationers v. Seymour, a Landmark Case in Intellectual Property Law (1677)

Tomas Gomez-Arostegui, Lewis & Clark Law School, is publishing Stationers v. Seymour (1677), Chapter 2, in Landmark Cases in Intellectual Property Law (Jose Bellido ed., Hart Publishing, 2017) (forthcoming). Here is the abstract.
This chapter discusses the role that Stationers v. Seymour, a case decided in the Court of Common Pleas in 1677, played in the recognition of common-law copyright in England in the 18th century. At issue in Seymour was the validity of the patent for printing almanacs, which King James I had granted in perpetuity to the Company of Stationers in 1616. The defendant John Seymour had printed an almanac without the license of the Company. The Court upheld the King’s right to grant the patent. During the great literary property debates of the mid-to-late 18th century, proponents of common-law copyrights often cited Seymour, alongside other printing-patent decisions, as evidence of a right in authors that antedated the Statute of Anne (1710). Many scholars today have questioned that reliance, arguing that the case was not at all probative of authors’ rights. This chapter revisits Seymour in light of numerous newly discovered manuscript reports and records, and it reveals that students of the case, particularly those who have studied the decision in the last 100 years, have often misunderstood the circumstances of the dispute. Ultimately, in light of its findings, this chapter argues that Seymour appears more probative of authorial rights than skeptics have previously supposed.
Download the essay from SSRN at the link.

February 9, 2017

Del Gobbo on Law and Feminism in The Merchant of Venice @danieldelgobbo

Gomez-Arostegui on Patent and Copyright Exhaustion in England Circa 1800

Tomas Gomez-Arostegui, Lewis & Clark Law School, has published Patent and Copyright Exhaustion in England circa 1800. Here is the abstract.
In this Article, I examine and reject the claim, made by the United States Supreme Court, that the first-sale doctrine is a “common-law doctrine with an impeccable historic pedigree” that reaches as far back as the 17th century and that “makes no geographical distinctions.” The Supreme Court’s depiction of the common law formed an important basis for the Court’s recent copyright decision in Kirtsaeng v. John Wiley & Sons, Inc. (2013), and is likely to reappear and influence the Court in a patent case in which it has recently granted certiorari, Impression Products, Inc. v. Lexmark Int’l, Inc. At issue in Lexmark is whether gray-market goods embodying patented inventions can be imported or sold in the United States without the permission of the U.S. patent holder. Focusing on the state of English law during the long eighteenth century — that is to say, in the years before and just after Congress enacted the first copyright and patent statutes in 1790 — this Article demonstrates that although a domestic first-sale (or exhaustion) principle was evident in litigation in English courts, the common law did not recognize international exhaustion. On the contrary, the common law observed foreign legal boundaries and permitted right owners and their licensees to stop gray-market goods that embodied intangible rights.
Download the article from SSRN.

Brophy on Black Power in a Prison Library @unc_law

Alfred L. Brophy, University of North Carolina, Chapel Hill, School of Law, has published Black Power in a Prison Library as UNC Legal Studies Research Paper No. 2901475. Here is the abstract.
"Black Power in a Prison Library" focuses on a list of 90 books on the black experience in America that were ordered added to the Marion, Ohio Correctional Institution in 1972. It uses the list as a way of gauging what books the plaintiffs (and thus the court) thought were essential to telling the African American experience. And in that way, we can use the list to reconstruct the contours of the bibliographic world of the African American experience in the early 1970s. The list reflects an interest in history of slavery, Reconstruction and Jim Crow, the literature of the Harlem Renaissance, the 1960s Civil Rights Movement, and contemporary works on Black Power. Notably thin is prison literature. Together the books help form a picture of the critique of law made by Black Power writers and the ways those claims built on historical, sociological, and civil rights literature. The book list, thus, suggests some of the ways that books propagated and gave definition to Black Power claims.
Download the article from SSRN at the link.

February 8, 2017

Bateman on Socrates and Cicero: Functionality as Justice

C. G. Bateman, University of British Columbia Faculty of Law, has published Socrates and Cicero: Functionality as Justice at 11 International Zeitschrift 11 (December 2016). Here is the abstract.
Socrates and Cicero thought of justice simpliciter as connected to functionality. This paper considers some of the characteristics of what they thought of as justice as well as the confluence of ideas in various selections from both authors.
Download the article from SSRN at the link.

February 7, 2017

Call for Papers: "The People": Democracy, Populism, and the Constituent Popular Sovereign, June 21-23, 2017, Helsinki @PanuMinkkinen

Via @PanuMinkkinen, Professor of Jurisprudence, Faculty of Law, University of Helsinki

Call for Papers: ’The People’: Democracy, Populism, and the Constituent Popular Sovereign
21-23 June 2017, Helsinki (Finland)

Confirmed keynote speakers: Christa Davis Acampora (Hunter College, CUNY, USA), Benjamin Arditi (UNAM, Mexico), Bonnie Honig (Brown University, USA), and Hans Lindahl (Tilburg University, the Netherlands).
Recent social and political developments, including the Brexit referendum result and its xenophobic aftermath in the UK, the presidential elections in the United States, anti-democratic state policies in Hungary and Poland, as well as the political climate of upcoming elections in France and the Netherlands, have all underlined the topicality of the relationship between democracy and popular sovereignty. What is ‘the people’? What is the popular sovereignty that supposedly underlies all democratic regimes? When does democratic politics become ‘populistic’? Is ‘populistic’ politics always necessarily anti-democratic, and if so, why? Is a ‘progressive’ variant of populism possible? What are the limits of popular self-determination in a democracy? Can the constituent popular sovereign ‘do no wrong’? How does one oppose anti-democratic populistic tendencies with democratic means? Is democracy a value that can even justify exceptional means?

The symposium, taking place on 21-23 June 2017 in Helsinki, and organized by the Political Constitutional Theory (PolCon) network (http://blogs.helsinki.fi/politicalconstitutionaltheory/), will address these and related questions on the troubled relationship between democracy and ‘the people’ from a variety of angles. Proposals for papers are due 24 February 2017.
For more detailed information, please visit:

Advanced Herstory Looks At Female TV Sleuths From the 1970s @TVHerstory

Advanced Herstory on the 1970s female private eye. This podcast episode takes a look at the tv adaptation of Nancy Drew, which starred Pamela Sue Martin and then Janet Louise Johnson, Mrs. Columbo, which featured the wife of Lt. Columbo, of the long-running hit Columbo (featuring Peter Falk, although his wife on that show never appeared), and Charlie's Angels, which launched Farrah Fawcett, Kate Jackson, and Jaclyn Smith as three lovelies who fought crime for the unseen (but heard) John Forsythe.

Corcos on How Some SF Presents AI's Claim to the Right to Life and Self-Determination @lpcprof

Christine A. Corcos, Louisiana State University Law Center, is publishing More Human Than Human: How Some SF Presents AI's Claims to the Right to Life and Self-Determination in the Oxford Journal of Socio-Economic Studies, Hilary Term 2017. Here is the abstract.
If even the least self-aware human being has the right to life, simply because it exists, then could AI at some point also claim that right? Or can human-created AI, simply because it is human-created, simply never legitimately put forward such a right? The idea that human beings, because they are human, create and become the norm for such decisions is one that it is difficult to overcome, but it is one that philosophers, lawyers, and artists wrestle with. It is also one that we see depicted in many science fiction films and television series. Thus, who defines what personhood is becomes an important question. What happens if AI develops sentience, and emotions? What happens if AI develops personhood? We are only now beginning to consider whether such creations, having equivalent or greater intelligence and abilities than their creators, should have the same, or qualified liberties and privileges. If we do consider that question, what test should we apply to determine whether these artificial beings should have such rights? Some legal regimes, such as the European Union, are already beginning to take such questions seriously.
Download a draft of the essay at the link.

Goldfarb on Words, Meanings, Corpora: A Lawyer's Introduction to Meaning in the Framework of Corpus Linguistics @NealGoldfarb

Neal Goldfarb, Butzel, Long, PC, has published Words, Meanings, Corpora: A Lawyer's Introduction to Meaning in the Framework of Corpus Linguistics. Here is the abstract.
Corpus linguistics has been promoted as a new tool for legal interpretation that provides an alternative to dictionaries. But that is not its only significance. In addition to providing new methodologies, corpus linguistics (and in particular corpus-based lexicography) provides important insights about the nature of word meaning, and about the interpretation of words in context. These insights (by linguists and lexicographers such as John Sinclair, Patrick Hanks, Sue Atkins, and Adam Kilgarriff) challenge the assumptions that underlie the lawyers’ and judges’ analyses of word meaning. As one might expect given the centrality of dictionaries in disputes over word meaning, legal interpretation presupposes a view of word meaning that is essentially the same as the view that is fostered by dictionaries. Under this view, individual words are the basic units of meaning from which the meanings of sentences are built. Word meanings are seen as discrete entities with (in most cases) clear boundaries. But corpus linguistics and corpus-based lexicography have shown that the reality is different. Clear boundaries between the meanings of different words, or between the different senses of the same word, often do not exist. Drawing lines between different word senses often has an unavoidable element of arbitrariness, as is shown by the fact that the lines are often drawn differently by different dictionaries. These differences raise questions about the validity of legal interpreters’ relying on dictionaries at all, and at a minimum suggest the need for changes in how dictionaries are used. Corpus linguistics and corpus-based lexicography have also cast doubt on the view (which most people would regard as simple common sense) that words are the basic unit of meaning, and that the meaning of a sentence can be computed by applying the rules of grammar to the meaning of the individual words. It turns out that in many cases, it makes more sense to regard multiword expressions as the basic units of meaning. The meaning of the whole often differs from the sum of the meanings of the words, in part because a word’s meaning in context can be affected by the words it co-occurs with and the grammatical constructions it is part of. As a result of these insights, corpus linguistics opens up new ways of thinking about word meaning — which translates into new modes of argumentation and analysis. To illustrate the possibilities, I will take a fresh look at Muscarello v. United States, 524 U.S. 125 (1998), which presented the question whether driving a car or truck with a firearm in the trunk or glove compartment amounted to “carrying” the firearm. Although Muscarello has already been the subject of a corpus-based analysis by Steven Mouritsen, his analysis focused on which of two dictionary senses of the word carry was more common, and therefore assumed the conception of word meaning that is generally reflected in legal interpretation. My approach will differ from Mouritsen’s in two respects. First, rather than look only at which one of two senses is more common, I will ask a more open-ended question: when viewed without preconceptions, what does the corpus data tell us about how the word carry behaves? Second, I will look at the data through the lens of Corpus Pattern Analysis, a corpus-driven lexicographic approach that focuses on multiword patterns rather than on individual word meanings.
Download the article from SSRN at the link.

February 6, 2017

A Review of Michael Sims's Arthur and Sherlock

Amy Henderson reviews Michael Sims's Arthur and Sherlock: Conan Doyle and the Creation of Holmes for the Washington Post. Here (reprinted in the National Post here).

Call For Submissions From Canadian Journal of Women and the Law/Revue Femmes et Droit: Special Issue on the Scholarship of Sherene Razack

From the mailbox:

Call for Submissions - Race, Gender and Law: A tribute to the scholarship of Sherene Razack


The Canadian Journal of Women and Law (CJWL) seeks submissions for a special issue 30(2) to be published in December 2018 on Race, Gender and Law: A tribute to the scholarship of Sherene Razack (guest edited by Gada Mahrouse, Carmela Murdocca, and Leslie Thielen-Wilson). The deadline for submitting articles for this special issue is September 1, 2017.

Dr. Sherene Razack is one of Canada’s leading critical race feminist theorists. She is especially known for developing an analytic that shows: 1. how racial violence is often legally and socially authorized and is integral to the making of states; and 2. how racial violence is gendered and sexualized. This special issue is in celebration of the 20th anniversary of her ground-breaking book Looking White People in the Eye (now in its fourth edition) and her important and on-going contributions to the interdisciplinary field of critical race feminisms and socio-legal studies. We invite articles in English and French from academics, legal scholars, educators, and activists, working in the areas of gender, race, and law. We are interested in receiving articles that are explicitly informed by Razack’s methodology or any other important aspect of her work.

Submissions should be no more than 35 pages (10,000 words) and should conform to the Style Guide available on our website: http://bit.ly/cjwlsubmit.  Please send articles in word format indicating it is for the special issue on “Race, Gender and the Law.” to: cjwl-rfd@uottawa.ca 

Appel à contributions--La race, le genre et le droit : commémoration des travaux de Sherene Razack La Revue femmes et droit sollicite des textes pour un numéro spécial 30(2), à paraître en décembre 2018, sur la race, le genre et le droit : commémoration des travaux de Sherene Razack (rédaction assurée par les rédactrices invitées Gada Mahrouse, Leslie Thielen-Wilson et Carmela Murdocca,). 

Les articles pour ce numéro spécial doivent être soumis d’ici le 1er septembre 2017 au plus tard. La professeure Sherene Razack est une des théoriciennes féministes critiques de la race les plus influentes au Canada. Elle est particulièrement reconnue pour avoir élaboré une analyse qui montre : 1. comment la violence raciale est fréquemment autorisée sur les plans juridique et social et fait partie intégrante de la composition des États ; et 2. comment la violence raciale est sexospécifique et sexualisée. Ce numéro spécial commémore le vingtième anniversaire de son livre révolutionnaire Looking White People in the Eye (qui en est à présent à sa quatrième édition) et ses contributions majeures et continues au champ interdisciplinaire des féminismes critiques de la race et des études sociojuridiques. Nous sommes à la recherche d’articles en anglais et en français rédigés par des professeurs et chercheurs en droit, des juristes, des éducateurs et des activistes qui travaillent dans les domaines du genre, de la race et du droit. Nous sommes intéressés à recevoir des articles explicitement influencés par la méthodologie de S. Razack ou par tout autre aspect important de ses travaux.

Les articles soumis ne doivent pas dépasser 35 pages (10 000 mots) et doivent se conformer au Guide Stylistique, disponible sur notre site Web à : http://bit.ly/cjwlsubmit. Prière de faire parvenir vos textes/articles à « Edition spéciale sur la race, le genre et le droit » en format Word à : cjwl-rfd@uottawa.ca.

Canadian Journal of Women and the Law/Revue Femmes et Droit is available online at:
CJWL Online - http://bit.ly/cjwl_onlineProject MUSE - http:// bit.ly/cjwl_pm
 Read in over 70 countriesOver 17,000 article downloads per yearOver 1,400 citations CJWL is the only Canadian periodical devoted entirely to the publication and dissemination of multi-disciplinary scholarship in the expanding field of women’s legal studies

February 5, 2017

Call for Applications: First Amendment and the Arts, Spangenberg Center, CWRU @CWRU_Law

My (law school) alma mater, Case Western Reserve School of Law, has posted a call for applications for a fellowship in the First Amendment and the arts, to begin immediately. Looks like a great opportunity for someone interested in the intersection of the FA and IP. More information here.

More Fun With Frankenstein @slate @FutureTenseNow

Future Tense, New America, and Arizona State University have published some new features on Frankenstein, including this quiz, and this essay about contemporary versions of the doctor in the novel. An introductory essay and more pieces available at the link here.

February 3, 2017

2017 Law & Social Inquiry Graduate Student Paper Competition Now Open @LSI_Journal

Via @IISJOnati

The 2017 Law & Social Inquiry Graduate Student Paper Competition is now open!
The editors of Law & Social Inquiry are pleased to announce our annual competition for the best journal-length paper in the field of law and social science written by a graduate or law student. Law & Social Inquiry publishes empirical and theoretical studies of sociolegal processes from a variety of disciplinary perspectives. Entries will be accepted starting January 1, 2017 and must be received by March 1, 2017.

LSI  invites direct submissions from graduate and law students and nominations of student work from faculty. The author must be a graduate student or law student at the time the paper was written and when submitted. Faculty nominations should include a short description along with the paper and contact details for the student.   Submissions will be evaluated by our editors.  The winning submission will be sent to selected scholars for advisory reviews to aid with revisions prior to publication. The winner is typically announced at the annual Law and Society Association (LSA) meeting.  All submissions (direct and faculty nominated) are weighted equally in the competition. The winning paper will be published in Law & Social Inquiry and the author(s) will receive a total cash prize of $500 (US). The paper will also receive special recognition from LSI at the Annual Meeting of the Law and Society Association.

Please send your article as a Microsoft Word document or PDF to lsi-abf@abfn.org.  Please indicate that (1) you intend to be considered in the competition, (2) you are currently a graduate student, and (3) you have not submitted your article to other journals for publication. Submission is limited to one paper per student; articles may not be altered or resubmitted with corrections once they have been received by our office.

Submissions must include a title page with a complete mailing address, e-mail address, and phone number(s). The second page should include a 100-150 (maximum) word abstract. Beginning on the third page, all pages should be paginated.  Text, footnotes, endnotes, and references should be double-spaced in Times New Roman 12 point font and have 1.5” margins on all sides with no headers or footers.  Properly formatted submissions must not exceed 60 pages.

For additional information, please go to http://blackwellpublishing.com/LSI or http://abfn.org/LSI. Questions regarding the competition can be directed to Willa Sachs: waschs@abfn.org(312) 988-6517 

February 2, 2017

Legal Beagles and Other Artistic Animals @yalelawlibrary

From Yale Law Library, an exhibit featuring animals in law books (via @montserratlj). Is this the sort of thing that helped inspire the wonderful Doreen Cronin?

Bessler on Cesare Beccaria's Forgotten Influence on American Law

John D. Bessler, University of Baltimore School of Law and Georgetown University Law Center, is publishing The Italian Enlightenment and the American Revolution: Cesare Beccaria's Forgotten Influence on American Law in volume 37 of the Hamline Journal of Public Law and Policy on American Law (2017). Here is the abstract.
The influence of the Italian Enlightenment — the Illuminismo — on the American Revolution has long been neglected. While historians regularly acknowledge the influence of European thinkers such as William Blackstone, John Locke and Montesquieu, Cesare Beccaria’s contributions to the origins and development of American law have largely been forgotten by twenty-first century Americans. In fact, Beccaria’s book, Dei delitti e delle pene (1764), translated into English as On Crimes and Punishments (1767), significantly shaped the views of American revolutionaries and lawmakers. The first four U.S. Presidents — George Washington, John Adams, Thomas Jefferson and James Madison — were inspired by Beccaria’s treatise and, in some cases, read it in the original Italian. On Crimes and Punishments helped to catalyze the American Revolution, and Beccaria’s anti-death penalty views materially shaped American thought on capital punishment, torture and cruelty. America’s foundational legal documents — the Declaration of Independence, the U.S. Constitution, and the U.S. Bill of Rights — were themselves shaped by Beccaria’s treatise and its insistence that laws be in writing and be enforced in a less arbitrary manner. John Adams, Thomas Jefferson, James Madison and Benjamin Franklin studied Italian and read or spoke the language to one degree or another, and many early Americans also had a fascination with Italian history and the civil law. Though On Crimes and Punishments is focused largely on the criminal law, the U.S. Constitution and its Bill of Rights — written documents protecting individual rights — echo the Beccarian idea of a fixed code of laws. Not only did leading figures of the Italian Enlightenment mold Beccaria’s work, but Beccaria’s treatise — now more than 250 years old — influenced a whole host of European and American thinkers, from Jeremy Bentham to Gaetano Filangieri and from James Wilson to Dr. Benjamin Rush. Beccaria’s ideas on government and the criminal justice system thereby profoundly shaped American law.
Download the article from SSRN at the link.

Greene on Atticus Finch's Nature Revealed in "Go Set a Watchman"

Sally Greene is publishing Atticus, Uprising in volume 47 of the Cumberland Law Review (Winter 2016). Here is the abstract.
The controversial publication of Harper Lee's Go Set a Watchman, in 2015, allows us to see Atticus Finch from a new angle. He is revealed to be a "gentleman bigot," not unlike many white southern men of the mid-twentieth century. As interesting a revelation is the shock with which his daughter, Jean Louise ("Scout"), receives this news. Why didn't you tell me this is how it was? she asks him. Her disillusionment, which perhaps mirrors Lee's own, finds parallels in the lives of other white southerners, like the writers Willie Morris and Elizabeth Spencer, who only in retrospect realized the depth of the racist society in which they were raised. For Morris and Spencer, and for countless others, the necessary response was self-exile. The publication of Go Set a Watchman comes as an unexpected gift, an admonishment: a reminder to white readers that even today, we are often blind to the racism that is right before our eyes.
Download the article from SSRN at the link.

Said on a Transactional Theory of the Reader in Copyright Law @zahr_said

Zahr Said, University of Washington School of Law, has published A Transactional Theory of the Reader in Copyright Law at 102 Iowa Law Review 605 (2017). Here is the abstract.
Copyright doctrine requires judges and juries to engage in some form of experiencing or “reading” artistic works to determine whether these works have been infringed. Despite the central role that this reading — or viewing, or listening — plays in copyright disputes, copyright law lacks a robust theory of reading, and of the proper role for the “reader.” Reading matters in copyright cases, first, because many courts rely on the “ordinary observer” standard to determine infringement, which requires figuring out or assuming how an ordinary observer would read the works at issue. Second, most courts characterize a key part of infringement analysis as a matter for the jury, largely on the basis of the jury’s ability to apply the ordinary observer standard. But the ordinary observer concept has not received much attention as a feature — really, a bug — in copyright law. The ordinary observer standard is unclear both in theory and in practice, and it misaligns with how jurors (or judges, or ordinary people) actually experience works of art. As a result of persistent confusion about the role of the ordinary observer, many cases produce outcomes that distort copyright doctrine and create unfairness for litigants. This Article demonstrates the need in copyright law for a better understanding of how readers read works of art, and it proposes a theory of reading from the humanities. Louise Rosenblatt’s theory of transactional reading helps diagnose copyright law’s reading problem and offers support for several concrete prescriptions. Instead of assuming that reading is a one-size-fits-all process, a transactional theory suggests that reading depends on why one reads and who does the reading. A less simplistic, more dynamic, and phenomenologically informed model of reading could help reshape the ordinary observer standard. This Article proposes that copyright adopt four changes: (1) more work should be done by judges as a matter of law, thus narrowing the role of the jury in determining infringement; (2) expert evidence ought to play a greater role in copyright litigation; (3) the jury should be instructed to do a more informed kind of reading when it evaluates works of art for infringement; and (4) courts should explore the use of special verdicts to render jury deliberation more transparent. These changes will mitigate the problems of the ordinary observer standard, while capturing its strengths.
Download the article from SSRN at the link.

Clark on Reading The Odyssey and Professional Responsibility @shermanjclark

Sherman J. Clark, University of Michigan Law School, has published A Lawyer's Odyssey: Constitutive Conversation in Literature and Law. Here is the abstract.
Through a close reading and original translation of several passages from The Odyssey, this essay suggests that lawyers can learn from a certain sort of engagement with literature — and with Homer in particular. Reading The Odyssey in the way I describe highlights the constitutive capacity of speech. What we say, and how we say it, does not merely reveal who we are; it helps makes us who we are. Moreover, our speech also helps construct the character of those to whom we speak. Homer brings this home. Reading the Odyssey can thus help us think more deeply about what we choose to say and how we choose to say it. Homer can help us learn to take responsibility for what we do — to ourselves and to others — when we speak.

Download the article from SSRN at the link.

Cooper on Culpability for Curses in Jewish Law and Mystical Lore

Levi Cooper, Ben Gurion University of the Negev, has published Culpability for Curses in Jewish Law and Mystical Lore, in Wizards vs. Muggles: Essays on Identity and the Harry Potter Universe 168(Christopher E. Bell, ed., Jefferson, NC: McFarland, 2016).
Would a court judging according to Jewish Law find Voldemort guilty for the murders of James and Lily Potter? Voldemort had the intention to kill, yet the legal question is: Would Jewish Law consider the Killing Curse to be an act of murder? This study explores legal aspects of three magical phenomena – incantations that kill, automatic writing like Tom Riddle’s Diary, and food with different possible tastes like Bertie Bott’s Every Flavor Beans – as they are discussed in Jewish Law. In Jewish esoteric lore, magical phenomena have conventionally been the province of the mystically adept. Though laypeople may not have been proficient in magic, the mystical tradition dictated conduct. A by-product of this situation was that jurists considered legal implications of magic. Legal opinions on magical phenomena can therefore be found in Jewish legal literature, making this corpus fertile ground for analysis. Drawing on the fields of Comparative Law, Law and Literature, and Legal History, this article analyzes three phenomena and concludes with four contentions: First, the analysis speaks to the possibility of cross-fertilization in Comparative Law. Second, the study provides a unique window into the world of Jewish Law jurists, and thus is of interest to legal historians and judicial biographers. Third, the material presented here contributes to our understanding of the reaches of the Jewish legal system. Fourth, the present discussion may be significant for the contemporary challenge of charting a course in legal education.
Download the essay from SSRN at the link.

February 1, 2017

Teaching Law With Television: The Case of Law & Order


Kenneth D. Agran's Investigative Criminal Procedure: A Law &; Order Casebook (West Academic Publishing (2017). Here's a description of the book's contents.

This innovative and groundbreaking book includes access to 12 complete episodes of the popular television show LAW & ORDER that vividly and accurately depict various aspects of Investigative Criminal Procedure. Instructors may request a complimentary copy of the book that provides access to the companion eBook, which seamlessly incorporates scenes from the show, excerpts from over 200 U.S. Supreme Court opinions, and "black box" summaries of the law to clarify the constitutional rules binding upon law enforcement during the investigation of crimes. In particular, the book comprehensively covers the constitutional rules governing searches and seizures, the limitations on police questioning and interrogation practices, and the doctrines regulating police identification procedures. A Teacher's Manual includes valuable teaching tips, coverage suggestions for courses of various lengths, detailed notes and summaries for each case, and classroom-tested exercises that, along with the LAW & ORDER segments, will improve students' engagement and enhance their understanding of the core concepts in Investigative Criminal Procedure. West Academic is proud to have worked with NBCUniversal to bring this one-of-a-kind textbook to the market.

Professor Agran notes that part of his inspiration comes from his law school experiences in a 1994 course taught by Charles Nesson. Certainly what he describes is new and different. And his own book is both clever and innovative. But I would point out that (ahem) some people have pointed the way, even before 1994. I tried to interest another legal publisher in this same idea back then. I still remember the name of the publisher's rep who failed to respond to my inquiries about a law and television casebook approach to teaching after encouraging me to lay out a detailed plan. Sigh.